# FILED Ap ril 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRI MINAL APPEA LS OF TENNESSEE AT KNOXVILLE DECE MB ER SES SION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9507-CC-00203 ) Appell ee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BE CK NAT HAN ALL EN CAL LAH AN,) JUDGE ) Ap pella nt. ) (First De gree M urder)

ON AP PEA L FROM THE J UDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY FOR THE APP ELLA NT : FOR THE APPELLEE : STEPHEN M. W ALLA CE CHARL ES W. B URSON Dist ri ct Publ ic Def ender Attor ney General and Reporter DARI AN B. TAY LOR Assist ant At tor ney General 450 James Robertson Par kway Nashvil le, TN 37243-0493 H. GREELEY W ELLS Dist ri ct Attor ney General NANCY S. HARR Assist ant Di str ictAtto rney Gener al Blountvi ll e, TN 37617
OPINION FILED ________________________ AFFI RMED DAVI D H. WELLES, JUD GE-2- 

# OPINION

Th is is an appeal as of r ightpursuantto Rul e 3, Tennessee Rul es of Ap pella te Pro ced ure. The Defendant, Nathan All en Call ahan, was co nvi cted by a Sull iv an County j ury of one countof f ir st- deg ree murder and one countof seco nd-de gree m urder, res pectively, forthe shoot ing deat hs of hi s mother and youngersist er. The jury setpunishmentforthe fi rst -degree murder conv ict ion at life impri sonment and f ined t he Defendant$4 7,00 0.0 0 forthe countof seco nddegree murder. The tri al court ordered t wenty- two years impri sonment on th e convi cti on for second-degree murder to be se rved con curre ntly with the life sentence. The Defendant app eals hi s convi cti on s and rai ses the fol lowi ng issues: (1) That the evi dence is insuffi cientto support t he convi cti on for murder in the f irst degree; ( 2) t hat t he tr ial cou rt err ed in denyi ng the Def endant’ s speci al jury reque st; (3) that the trial court erred in f ail ing t o suppress his co nfessi on; and (4) thatthe t ri al court er red by not suspen ding the f ine i mposed by t he jury. After caref ul revi ew of t he iss ues and the re cord , we aff ir m the judgmentof t he tr ial cou rt.

On March 30, 1994, Gal e Call ahan and her t hi rte en -year-old d aug hter, Ho lly, were shotto death in t he garage of their home. At the ti me of the murders, the Defendanthad just turn ed fiftee n. He li ved wi th hi s parent s, Gal e and Glen Call ahan, and his younger sist er, Holl y, i n a suburban neighbor hood in t he Indi an Hills com mu nity of Sulliva n C ou nty. A t aro un d a ge fou rtee n, th e D efe nd an t’s behavi orhad changed; he had new fr iends, his grades began to drop, he st opped doing homework, and he started ski pping cl asses. In t he fal l of1993, after-3-

becoming suspi cious thathis s on might be u sing dr ugs, Gl en Call ahan inst all ed a record er to tape his son ’s telepho ne ca lls. On N ew Y ear’s E ve, 199 3, Mr. Call ahan recorded the Defendanttal king wi th a f ri end about us ing mar i j uan a. He a lso tal ked abo ut s neaki ng outof t he hous e and dr iv ing the new T rans-A m Ponti ac his gran dfather h ad bought f or hi m. Mr. Cal lahan conf ront ed the De fend ant, who denied thatthi s was tr ue and ref used to reveal his dr ug source. Mr. Callahan beca me enra ged and s ma shed the D efend ant’s electric gu itar, ano ther g ift from his gr and fathe r.

Mr. Call aha n stay ed thatnightwit h the Def endant who l iv ed in t he dow nstairs area ofthe house, fearful of howhe might react. The next morni ng, the Defendantwent int o the bat hroom to t ake a shower, but act uall y cra wled out the window. Aft erdisco veri ng he was missi ng, hi s parent s searched forhim and lat erfound hi m lyi ng under t he bas em ent st eps. Mr . Call ahan sold the De fen da nt’s ca r , t oo k h i m f orr an do m dr ug t es t s, an d b ec ame veryrest ri cti ve of his activities and his ac ces s to m one y. He had an o utpa tient m enta l hea lth eval uati on in Januarywhich reveal ed no si gnif icantmental di stur bance, butdid indica te substanc e abuse. The recommended treat ment was outpat ient counseli ng, with m ore exte ns ive tre atm en t po ssib le ifthe dr ug screens conti nued to appear pos itive. Subsequent dr ug screens conti nued to t est posi ti ve f or marij uana and the Def endant’ s parent s monitored his a cti vi ti es at sc hool. They bought a new blac k Chevrol et Camaro and promised t he De fen da nt a lea rne r’s pe rm it to d rive if t wo dr ug s s cr ee ns ca me back negat iv e. The carkeys wer e kept locked up.-4- The sit uati on remained so mewhat the same duri ng the month be for e the murders. Mr. Ca llah an no ted at tria l tha t the De fen da nt ra rely expres sed emotion and thathe had never seen hi m cry. The Defendant nev er expressed an ge r, even after h is gu ita r w as smashed, hi s car was s old, and he was res tri cted. Ho weve r, two day s before the ki ll ing s, t he Defendantasked hi s sis ter , i n the presence of her

fr ien d, “w ha t wo uld you do if I killed m y M om an d D ad ?” H is sist erHo lly rep lied : “N ath an , sh ut u p. T ha t’s no t nice to sa y. Yo u sh ou ldn ’t do that, I w ould hate you fo reve r if you d id.”

On the dayof t he murders, the Defendan t had l engthytel ephone convers ati ons with two of hi s fr iends. He ini ti ated a di scussi on about whet her he s ho uld k ill his p are nts . Un be kn ow ns t to th e D efe nd an t, the se tele ph on e ca lls were tape- recor ded. They reveal ed the ani mosityhe harbor ed tow ard his fa m ily and the pl anning and e xecut ion of the mu rder s. The Defendant dev ised t he plan t o k i l l hi s mo t he ran d s i st eraft ert he y r et ur ne d h ome fr om a sh op pin g trip . His fat herw as away on a busines s tr ip and was expect ed to be bac k lat er t hat eveni ng. The Defendant ret ri eved a 20 gauge sho tgu n, a pre se nt fro m his grandf atherthatwas stored underhis parents bed. He locat ed a box of amm un it ion, loa ded the chamber wit h four shell s and pl aced the gun outsi de behind a fe nc e n ea r the ga rag e. D urin g th is tim e, th e D efe nd an t rem ain ed in phone contac t with Jam es S aylor, who participated actively an d made suggestions.

W hen the Def endant saw t hat hi s mother and s ist er had ret urned, he set the tel ephone down, st il l off t he hook, and went out side. He picked up the shotgun and hid be hin d h is C am aro , tha t wa s pa rke d in the dr iv eway. His mother-5-

and sist er opened t he garage door and wal ked ins ide t oward a doo r lead ing into the house. As t hey neared t he door, the De fen da nt w alk ed into the ga rag e. H is sister, Ho lly, turn ed aro un d a nd he sho t he r in th e lo we r fron t. He the n sh ot h is motherin the s hou lder. He walked wi thi n a fewfee t of h is sis ter a nd sho t he r in the he ad , the n re loa de d th e g un an d sh ot h is m oth er in the bu ttoc ks, in her back, and in her head. The brains ofboth vi ctims were blown from their heads.

The Defendantleft t he garage and picke d up the t elephone, tel li ng James Saylor th athe h ad k i l l ed h i s mot her and si st er . He too k m on ey a nd his m oth er’s cell ular phone and putthe shot gun and a boxo f shel ls i n the Camaro. Saylor be ca me con ce rne d a nd told his m oth er, T erre ll Saylor, what t he Defendanthad done. Te rrell Sa ylor c all ed the De fen da nt, th en allow ed he r so n Ja m es to ta lk with him wh ile sti ll li steni ng on the l ine. The Defendantagain s tat ed thathe had kil led his moth er and si ster . Fearful thathe would c ome to thei r hom e, Te rr ell Saylor cal l ed 9 11 a nd repo rt ed t he i nci den t. Th e D efe ndant l eftthe house, dri vi ng the bl ack Camaro.

Mem bers of t he Sull iv an County Sher iff’ s Departmentwere di spatched to the Call ahan resi dence. Not ici ng thatthe g arage door w as op en, the o fficers went insi de and dis covered the bodies of Gale and Holl y Call ahan. The officers also did a protect iv e sweep of t he home, noti cing a n umber ofbloo dy foo tprints both in the garage and in s ome areas of t he house. Lieut enant Reece Chri sti an arri ved on the sc ene to i nvest igat e. A number ofshell casin gs were observed in the garage. Gale Callahan’ s p urse w as lyi ng in a l aundry ba sket, where t he Defendant had left i t aftertaki ng some cash.-6- Meanwhil e, the De fen da nt d rove to th e F ort H en ry M all t o look for Jonat han Mann, another

fr iend. He approached Andrew Carter , a scho ol cl assmate, i n a vi deo arcade an d a nn ou nc ed tha t he ha d ju st kille d h is mother and si ster . The Defendantpull ed the car keys outofhi s p oc ke t an d a sk ed “ yo u b el i ev e me now?” The De fend ant a lso sta ted th at he nee ded to fi nd s omewh er e t o hi de. He left t he m all and w en t t o a conveni ence store, t he Greenwood Market . While he was using the payphone, someone atthe marketcall ed 911 an d re po rted his presence. He then l eftand drov e to t he B&C Market, a notherconveni ence store. Charles Addison, a local resi dent, saw the Def endant atthe Greenwood Mar ket and followed h im to the B& C. H e obs erved th e De fenda nt on the pay ph one . Mr. Addison then repo rte d the De fen da nt’s whereabouts. Soon thereaft er, Lieut enant Christ ian and t wo other officers arrested him a t the B& C M arket. T he officers saw a sho tgun and a b ox ofshell s through the hat chback wi ndow. The De fend ant w as tra nsp orted to the Sh eriff’s D epa rtme nt.
There, Glen Call ahan, who had returned from h is busine ss trip, gave pe rm issio n to quest ion t he Defendant . Afterbeing adv ised ofhis r ight s, t he Defendantga ve a l engthyconfess ion. Lieut enant Chri sti an wrot e out t he stat ement as the Def endant made the oral confess ion. The Defendant revi ewed and sign ed th e docu m ent. A urine drug scre en w as c ond ucte d an d the resu lts were negati ve. The D efen dan t w as housed i n the Upper East Tennessee Regional Juveni le Det enti on Center un ti l he w as trans ferred to the Lake shore Mental In st i tu te fo r a n ev al uat i on. He was deter mined to be competent t o stand trial. He was ret urned to t he Detenti on Center. On July 7, 1994, the Def endant was trans ferred to the Su llivan C oun ty Crimina l Courtforpros ecu tion a s an adu lt.-7- Th e Defendantwas indi cted on two counts of fi rst -degree murder f or t he shotgun deaths of G ale an d H olly Call ahan. He was t ransf erred to t he Sull iv an Co unty Jail, a sec ure fac ility, an d w as ho us ed sep ara tely fro m the ad ult populat ion. The Defendantwas tr ied on March 13- 17, 1995, and was convi cted on a juryverdictof one count of f irst -degree murder and one count of se cond degree murder. The jury i mposed a sentence ofl i f e i mp rison m ent fo r the firstdegree murder and a $47, 000 .00 fine for the sec ond -deg ree m urde r. A sentenci ng hear ing was held on March 18, 1995, afterwhich t he tr ial judge imposed a sentenc e of twenty- two years for the charge of sec ond-degr ee murder to be serv ed concurrentl y wi th t he li fe sent en ce . Th e D efe nd an t co nte sts his conviction s and the fine se t by the jury.

I. Suff ici ency of the Evi dence

In his fi rstissue , t he Defendantargues t hat t he evi dence was i nsuff ici ent to supportthe v erdi ct ofmurder i n the f irst degree for the death ofGale Call ahan. He cont e nds that t he State fai led to prove the element of del iberati on because he w as in an e m otion al state whe n the killings o ccu rred
.
W hen an accused chal lenges t he suff ici ency ofthe con victin g evi dence, the standard is whet her, aft errevi ewing t he evi dence in the light m os t favo rab le to the pro se cu tio n, any r ati onal t ri er offactcould h ave f ound the ess enti al elem ents of the crim e be yon d a re aso nab le do ubt. Jack son v. Virg inia , 4 43 U. S. 3 07, 31 9 (1979) . Quest ions c oncerni ng the credibi li ty o f t he wit nesses, the weightand val ue to be gi ven t he evi dence, as we ll as a ll fact ual i ssues rai sed by the evi dence, are r esolv ed by the trier of fac t, not this cou rt. State v. Pappas , 754-8-

S.W .2d 62 0, 623 ( Tenn. Cri m. App. 1987) . Nor may t his co urtrewei gh or reev alua te the evi dence. State v. Cabbage , 571 S .W .2d 83 2, 835 (Ten n. 197 8).

A jury verd i ct approved by t he tr ial judge ac credi ts t he Stat e’s wi tnesses and reso lves a ll conflicts in favo r of the State
. State v. Grace , 493 S. W .2d 474, 476 (Tenn. 1973) . On appeal , t he Stat e is ent it led t o the st ronge st legitim ate vi ew of t he evide nce and all infere nce s the refrom
. Cabbage , 571 S. W .2d at 835. Because a verdictof gui ltremoves the presumption o f i nnocence and r eplaces it wit h a pre sum pti on of gui lt , t he accused has t he burden i n thi s courtof il lust rat ing why the evi dence is insuffi cientto support t he verdi ct r etur ned by t he t ri er o f fact. Sta te v. T ug gle , 639 S.W .2d 9 13, 9 14 (T enn . 198 2); Grace , 493 S.W .2d at476.

The Defend ant cl aims t hat the evi dence wa s insu ff icient to prove deli berat ion as r equir ed forfi rst -degree murder. The tri al j udge inst ruct ed the jury un der Tennessee Code Annotat ed secti on 39-13 -202(a) (1), which s tat es, " (a) Firstdegree murderis: (1) An int enti onal, premedit ated and del iberate ki ll ing of ano ther...." Te nn. C ode An n. § 39- 13-2 02(a )(1) (1 991 ). A " '[p]re m edita ted a ct' means one done aft er t he exerc ise ofref lect ion and j udgment . Pre meditat ion may incl ude instances of homici de co mm it ted b y pois on o r by lying in wa it." Tenn.Code An n. § 3 9- 13 - 20 1( b) ( 2) ( 19 91 )
. A " ’ [ d] el i be r at e a ct ' me ans one perfo rm ed w ith a co ol pu rpos e." Te nn. C ode An n. § 3 9-13 -201 (b)(1 ) (199 1).

The Tenness ee Su preme Co urt has address ed the i ssues ofpremedit ati on and deli berat ion i n Stat e v. Brown , 836 S. W .2d 530 ( Tenn. 1992), and in Sta te-9-

v. W est , 844 S. W .2d 144 ( Tenn.1992). In Brown , the co urt emp hasized that deli berat ion and prem editation are two se parate elem ents of first-deg ree m urder. Deli berat ion, the cou rt said, "re quir es some period of r efl ecti on, dur ing whi ch the mind is 'free fro m the influ enc e of e xcitem ent, orpas sion .' " Brown , 836 S. W .2d at 540. Thus, del iberati on requi res “ the f ormati on ofa cool, dispas sionat e int ent to kill.” W est , 844 S. W .2d at147. Pr emed itatio n d oe s no t req uire a sp ec ific amount of t ime to pas s between t he form ation of the idea and the a ct. Brown , 836 S.W .2d at 54 0. H ow eve r, the inte nt n e cessaryto commitfi rst -degree murder may not b e f or me d in an i nstantbecause ofthe addi ti onal requir ement of deli berat ion. Id. at 543. The court also not ed that repeated bl ows or shots, alone, were notenough to prove f irst- degree mu rder. Id. ; see also State v. Da rne ll , 905 S .W .2d 95 3, 961 -62 (T enn . Crim. A pp. 19 95).

The Defendantcontends thatthe actof shoot ing his moth er was notfr ee fro m passi on such t hat t he deli berat ion was formed t o su pporthis c onvi cti on. “Passi on” has bee n defi ne d as “a ny of the h um an em otions kn own as an ger, rage, sudd en res entm ent or terror w hich renders t he mind i ncapable o f cool reflec tion.” State v. Tune , 872 S. W .2d 922, 926 (Tenn. Cri m. App. 1993) (quot ing Sta te v. Bull ingt on , 532 S .W .2d 55 6, 560 (T enn . 1976 )). Yet, the presence of agit ati on or an ger does notnecessari lyprecl ude a fi nding t hat t he act was perf ormed wit h the nec ess ary d elibe ration
. See State v. G entry , 881 S.W.2d 1, 5 (Te nn. C rim. Ap p. 199 3).

The Defendantpoint s to t he tape recordi ng of hi s tel ephone conversati ons justprior to the m urde rs. He ass erts th at his d em ean or de m ons trate s thathe was not fr ee fr om the passi on of t he moment. The tape recordi ng was play ed for-10-

the jury attr ial . The Defendant ’s f atherand grandf athertest if ied thatthe tape recor ded conversati on did notsound l ike hi s normal voice and thathe sounded agit ated. The Defendan t highl ights excer pts of t he tap e in whi ch he for ms the int ent to kill. Ho we ver, he claim s tha t it was d one in an excite d sta te fu eled b y his fri end, James Saylor’s encouragement. The Defendant does m ake so m e state m ents such as “ Ah shit , I ’m going to be so g oddamn nervous tryi ng to drive (afterhe murders t he vi cti ms)” and t hat i t woul d be “damn fun”or t hat “[s]on of a bitc h, I’m going to try it. You w ant m e to call you b ack? ” At a later p oint in th e convers ati on, theydiscu ss Sayl or coming ov erto the Defendant’ s house aft er he does the killings, yet Saylor co nditions it by sa ying “I thou ght yo u we re go ing to do tha t first” a nd “if you ’ll do it, I’ll com e over. ” Th e De f en da ntv oi ce s s ome agit ati on by s ayin g “I c an ’t believe w hat the fuc k we’re doing. ” He asserts t hat t he anx iety he was exper ienci ng justpri or t o the murders had not subsided such th at he was free from passion.
Yet, ther e is ev idence t hat t he Defendantcooll y cal culat ed a plan, thathe i mplemented the plan, and that he considered t he consequences b efor e h e acted. In hi s co nfess ion , he admitted to t hin ki ng about ki ll ing hispare nts two weeks befor e the murders and he t al ked to othe rs a boutki ll ing hispare nts two day s be fore th e m urde rs. In h is con fess ion, h e sta tes:

I told my s ister t hat I was thi nking abou t ki ll ing our parent s to see what Ho lly thoughtabout i t. Holl y di d not b elieve me and told m e no t to do it. She did notthi nk I was seri ous but I was de f i ni t el y se r i ou s a bo utki l l i ng my parents.
. . . [ I] call ed Jonathan at hi s home and tal ked wit h him . W e tal ked abou t killi ng m y sister a nd my mother and he di d not bel iev e me. I t ol d h i m I did not l ike the waymy sist er and my motherwere t reat ing me.

. . . I hav e been thi nking abou t ki ll ing my fat her, mother and sist er f or about 2 wee ks. B eca use they w ould neve r let m e go out a nd d o an ything with my friends.-11- From the r ecorded t elepho ne co nversat ions, the Def endant cons ider ed thatifhe kil led hi s famil y “we’ re goi ng to need s ome place t o stay .” Also, he plans the event: “T hey just w ent ou t to eat. W hy d on’tyou com e ove r. I’m go ing to shootthem as so on as they wa lk in the doo r. Come up behind them, and shoot them in t he garage so I don’tget bl ood all over t he house.”“You know wh er e my caris at, out b ack there, I ’v e got t he gun lay ing down t here. ” When the Defendanthear s th at two otherboys are at Sayl or’ s house he asks: “Does he know what I’ m going to do? Hey, you better not tel l t hem, just in cas e.” He stat es that“if I get ca ugh t. I’ ll go to j ail
. . . . IfI getpull ed over, I’ m gonna have to s hoot the goddamn cop. I can’toutr un his f uckin’ ass ‘cause they’ ll have roadblocks.

. . . I could g et mysel f i n a shitload oftr ouble r ightnow. How many years do you thi nk I’ d get? Li fe?” “We’re g oing t o pawn a ll my M om ’s jewe lry out o f state.” Finally, when Saylo r suggest s giv ing t he Defendant ’s mother Va lium in her f ood, the Defendant responds:

Defendant: No, I ’m shooti ng her ass, bit ch. Sa ylor: Poiso n her. T hat wo uld be th e bes t way. De fend ant: I ha ve to kill he r, bitc h, w ha t ifshe wakes up, what the

fuck am I gonn a say? Saylor: Sh e ain ’t gon na w ake up if yo u po ison her rig ht. De fend ant: I wan t to leave tonig ht, you sorry b itch. I’ m gonna shoot

her, shu t the fuck u p, I’m sho oting he r. Dr
. Na ncy L anth orn, a clinica l psyc holo gist, tes tified for th e D efen dan t. She had eval uated hi m and lis tened t o the audi o tape ofthe t elephon e conversati ons. She conclude d thatthe De fen da nt w as soc ially a nd em otio na lly immature. She related tha t his cogn itive developm ent ha d not re ac hed a point whe re he c ould effec tively eva luate and assess the cons equences ofhis acti ons to supporta fi nding t hat he del iberated about t he kil li ngs. Essent ial ly , she st ated-12-

that“he was notreflecting. He was n ot plann ing realistically at that time ” (before the killings).

The Stat e present ed D r. K evi n Blant on in rebutt al, who eval uated t he D ef endant at L ak es ho re M en tal H ea lth In stitu te a nd ha d liste ne d to the au dio tape. He c onclud ed tha t the De fenda nt had enou gh m aturity i n his e go devel opment to em path ize w ith othe rs, or to con side r fu ture act ions, or to take resp ons ibilityfor be hav ior.” He opined t hat t he Defendanthad weighed matters, planned the kil li ngs and reflect ed upon the consequences such thathe wa s ab le to deli berat e pri or t o the act . Al though adm it ti ng tha t t he Defendantsounded anxi ous and nervous or nervous and elat ed , he ass erte d th at th e D efe nd an t’s speech di d not sugges t t hat he was c onsumed by emotion
. Dr. K ris Ho use r, a psyc hiatrist, also testified that th e D efe nda nt appeared t o have consi dered t he “wi sdom of hi s deci sion t o kil l” an d tha t h e con sidered the po ssible ne gative consequences. Dr. Ho user s tated tha t the De fenda nt was not an xi o us and nerv ous suc h tha t his jud gm ent w as c loud ed.

After a caref ul ev aluat ion ofthe r ecord, we concl ude thatthe evi dence was suff ici ent to support a c o nvic tion for firs t-de gre e m urd er fo r the de ath of G ale Call ahan. Itappears t hat t he jury coul d have f ound beyond a reasonabl e doubt thatthe Def endant poss essed the abil ity to deli ber a te abouthis pl an to murder his mother and t hat he wei ghed the con sequences ofhis acti ons. Al though he may have been anxious or elat ed about perpetrat ing thi s c ri me, thi s does not ne ce ssa rily mean that his e mo ti ons cl ouded his abil ity to deli berat e. A “ cool purpose” is not sy nonymous w ith a complete absence of em otio n. It m ere ly requi res thatthe actbe done wit hout passi on or provoc ation and fr ee from the-13-

infl uence of exc item ent. See State v. Far mer , 92 7 S
. W.2d 58 2, 58 9 ( Ten n. Cr i m. App. 1996). Here, i n a lengt hy confessi on, t he Defendantadmitt ed to t hinki ng a bout kil li ng his p arent s two weeks befor e the murders. He t alked abou t m urd erin g h is parent s two day s before the ki ll ings. He tal ked wit h a fr iend on the tel ephone whil e he pl anned a nd im ple m en ted the m urd ers . He sho t his motherand sis terfr om behind, wi thoutwarni ng and wit hout provoc ati on in such a manne r as to i nsure their deaths.

There is no meritto t his i ssue.

II.

In his s econd is sue, t he Defendantcontends thatthe t ri al court er r ed by denyi ng his sp ecia l requ est f or a j ur y i nstr ucti on. Attr ial , t he Defendant request ed thatthe t ri al j udge charge the j ury t he fol lowi ng f r om Stat e v. Brown , 836 S.W .2d 53 0 (Te nn. 19 92).

The fact tha t repe ated sho ts we re inflicte d up on th e vi cti m is not sufficie nt, by itself, to esta blish firs t-deg ree m urde r. Re pea ted s hots can be de livere d w ith n o d es ign or re flec tion . On ly if such shots a re inf li cted as the r esultof pr emeditat ion or deli berat ion can they be said to pro ve first-degree mu rder.
Id. at 54 1. T he tria l cou rt den ied th e req ues t on th e gro und that th e inst ruct ion wo uld amount to an impropercomment on the evidence because itsuggeststhat premedit ati on or del iberati on could be infer red from repeated shots. W it hout t he inst ruct ion, the j ury woul d decide whetherrepeat ed shots would support a f indi ng of first-degree mu rder.-14- The De fend ant c laim s, ho we ver, that the St ate emphasi zed the fact t hat repeat ed shots were fi red t hrough t esti mony by the medical examinerregar ding the wounds on the vi cti ms and the number ofshotgun shell s found atthe sce ne. He argues t hat the omis sion ofthe spec ial jury i nstr ucti on depri ved hi m of havi ng every i ssue of factsubmitted to t he jury wi th proper i nstructi ons.

A defendantis ent it led t o a complet e and corr ect charge ofthe law
. Sta te v. Teel , 793 S. W .2d 236, 249 ( Tenn. 1990). A tr ial judge should properl y inst ruct the jury on t he law gov er ni ng issu es rais ed by th e e vide nc e in trod uc ed at tria l. Sta te v. McAfee , 737 S.W .2d 3 04, 3 08 (T enn . Crim . App .198 7). If a tri al j udge giv es ins tru cti ons thatcor rec tly, fully, an d fa irly se t forth the ap plica ble law , it is not error to ref use to give a sp ecia l requ este d ins tructio n. State v. Bohanan , 745 S.W .2d 892, 897 (Tenn.Cri m.App.1987). Upon revi ewing t he ent ire char ge we may only in valida te it if, whe n rea d as a wh ole, itfai ls t o fai rl y submitthe l egal issues or m islead s the jury as to the app licable law. In re Est at e ofEl am , 738 S.W .2d 16 9, 174 (Ten n.198 7).
Special instructions s hou ld be given if "fundam ental" to the c ase. W here the cha rge is one that is " fund am enta l in natu re" an d "es sen tial to a fa ir trial," failure to give the c harg e m ay re sult in e rror. Sta te v. Phipps , 883 S.W .2d 138, 142 (Te nn. C rim. A pp. 1 994 ); Teel , 793 S.W .2d a t 249 ; S oue y v. Sta te , 81 Te nn. (13 L ea) 47 2, 480 (1884 ).
Here, the trial court ga ve instruction s to the jury in ac cord anc e wit h the Tennessee Pat ter n Jury Inst ruct ions for f irst- degree murderas well as the holdi ngs in Brown and W est
. See Sta te v. Brown , 836 S .W .2d 53 0 (Te nn. 19 92);-15-

Sta te v. West , 8 44 S .W.2 d 14 4 ( Tenn .1 992 ); T. P. I
. - Cr i m. 7.0 1 (3 d. e d.). T his incl uded secti ons defi ning t he el eme nt s o f t he cr i me and both premeditat ion and deli berat ion. This was a complete inst ruct ion on t he lawof f irst- degree murder as to t he requi red el emen ts to pro ve the crim e be yon d a re aso nab le do ubt. Co nsid ering the fa cts in th is cas e, the instru ction that w as g iven w as s ufficien t.

A speci al i nstr ucti on must be f undamental to the cas e befo re the failure to issue itbecomes error . Unl ike Brown , repea ted sho ts were not i ntegr al to provi ng the c ase at bar . I n Brown , t he Defendantbeat hi s three-year-ol d son to d eat h
. Brown , 836 S.W.2d at 534. I n orderto support a conv ict ion f or f irst- degree m u rder, the St ate r eli ed solel y on ci rcumstant ial evi dence thatthe v ict im had re ceiv ed repe ated blow s. Id. at 543. Our supreme court hel d tha t “repe ate d blows” alone c ould notsupport a conviction . The proof in this ca se, how ever, does not r elyon the factthatthe Defendantinf li cted repeated shots. There was am ple evi dence through his confessi on, t he taped t el ephon e call s, and t he t esti mony of witness es that w ould su stain a finding that the killings we re premedit ated and de li berat e. The necessi ty o f a spec ial inst ruct ion must be deter mined by “t he natur e ofthe proceedings and the ev idence i ntr oduced duri ng trial.” Teel , 793 S. W .2d at249 ; see McAfee , 737 S. W .2d at308. Thus, t he iss ue of r epeated shots was not fundamental to t he proofof t his ca se.

W e cannot c onclude thatthe f ail ure ofthe t ri al j udge to i ssue the special jury instr uctions prev ented the Defendant from receiving a f air t rial . W e also agree thatthe ev idence of rep eated shots was an iss ue of f act and t hat any inference drawn there fro m, whether itsupport ed or hi ndered t he defense, was properl y l eftto t he jury to decide.-16- Th is issu e ha s no me rit.

III.

In his t hird issu e, t he Defendantclai ms that t he trial court erred in admitti ng his confession on two grounds: (1) That the f ailure of Sheriff’s D ep art ment detect iv es to i nf or m hi m tha t he cou ld b e trie d a s an ad ult re nd ere d h is confessi on inv olunt ary; and (2) thatthe conf ession should hav e be en s uppressed bec aus e it wa s no t reco rded on a udio tape
.
The Defendant assert s thathis wai ver ofhis r ightto r emain si len t wa s involuntary and vi olat iv e of t he Fifth Amendment to t he Unite d Stat es Consti tut ion and Arti cle I , Sect ion 9 of t he Tennessee Consti tut ion. Th e Fifth Am end m ent to the Consti tut ion as a pp li ed to t he Stat es through the Fourteent h Amendm ent insures thatthe acc used may notbe c om pelle d to b e a w itnes s ag ains t him self. The Tennessee Consti tut ion al so prov ides thata defendantcannot be compelled to giv e e vi dence ag ainsthimsel f. Tenn. Const. art . I , § 9. The accused may waive these righ ts, but the w aive r must be made “vol untar il y, k nowingl y, a nd intelligently” and “t he accused must be adequatel y and effect iv elyappri sed ofhis rights and th e exerci se of tho se rights m ust be fu lly honored .” Mirand a v. Ariz ona , 384 U.S. 436, 444, 467, 86 S.Ct. 1602, 1612, 1624, 16 L.Ed. 2d 694,706, 719 (196 6).

The voluntar iness tes t un de rt he Ten ne ss ee Con st i t ut i on i s mo re pro tec tiv e of indi vi dual r ight s than t he testunder t he Fifth Amendmen t. State v. Stephenson , 878 S.W .2d 5 30, 5 44 (T enn . 199 4); see St ate v
. Cr ump , 834-17-

S.W .2d 265, 2 68 (T enn . 1992 ); Sta te v. Sm ith , 834 S.W .2d 9 15 (T enn . 199 2). A waiver is vali d ifthe suspectis aware of t he natur e of t he ri ght bei ng abandoned and the cons equences ofthe deci sion to aba ndo n the right. Id. at 54 7. In assessi ng whethera waiv erof a right w as vo lunta ry, we mu st look at the totality of the circum stan ces surro und ing th e relin quis hm ent o f the righ t. Statev. Benton , 759 S.W .2d 427, 431-32 (Te nn. Crim. App. 1988).

After the Def endant was ar rest ed, he was t ransported t o the S ull iv an Co unty Sheri ff ’s Department and was p laced i n an int ervi ew room. Thi s was at ap pro xim ate ly 9:30 p. m. Glen Call ahan arri ved atthe Sher iff’ s Departmentand gave his p erm issio n fo r Lie ute na nts Ch ristia n a nd Bo yd to inte rvie w th e De fend ant. Chr i st i an p re sen te d t he De fendantwith a stan dard righ ts form contai ning the Mirandawarni ngs and read i t t o him. The Defendantalso read the form him self an d sta ted th at he underst ood it . Chri sti an asked t he Defendant whetherhe was wil li ng to tal k, and he indi cated hi s assent . Chri sti an then read a waiv er ofri ghts f orm, whi ch the Def endant si gned. He then made a state m ent. He wa s c al m an d po lite. Du ring th is time , Lieu tena nt C hristian wrote out, ve r ba t i m, the Def endant’ s stat ement. The De fend ant re viewe d the state m ent, ini ti aled any c han ges , and sign ed it. The stat ement chroni cled t he event s leadi ng up to, duri ng, and afterthe ki ll ings, resul ti ng in a t hirteen- page confes sion.

The Defendant does not contend that he was coerce d int o giv ing a confessi on, but cl aims thathis age and the factthathe was notinf ormed thathe co uld be prosecuted as a n a du lt precl uded him from making a knowing and int ell igentwa iv er. He assert s thathe is potent ial lyexposed t o two di ff eri ng rang es o f pun ishm ent a s a juv enile and as a n ad ult.-18- The tot ali ty o f t he circumstances approach has been appl ied t o the cust odial interro gatio n of juv enile s. See Far e v . M i cha el C. , 442 U. S. 705, 99 S.C t. 2572, 61 L. Ed.2d 197 (1979) . Thi s incl udes assessi ng “t he juv enil e’s age, experi ence, educati on, background, and i ntel li gence, and i nto whe ther he has t he cap acity to understand t he warni ngs giv en h im, t he natu re of h is Fifth Amendm ent right s, and the consequences of waivi ng those rights.” 442 U.S. at 725, 9 9 S.Ct at2572. However , “ [t ]he ( United States ) Consti tut ion d oes no t require tha t a c ri minal suspect kn ow and underst and every pos sible consequence of a waiver .” Colorado v . Spri ng , 479 U. S. 564, 574, 107 S. Ct. 851, 857, 93 L.Ed.2d 954 (198 7); see a l so Moran v. Burbi ne , 475 U. S. 412, 106 S.Ct. 1135, 89 L.Ed. 2d 410 (198 6). The primaryprot ecti on aff orded by the Mirandawarni ngs a re t o pre ven t coe rced self-inc rimin ation and “releva nt de fend ant ig nora nce .” Stephenson , 878 S. W .2d at547.

Our exa m ina tion of th e to tali ty of t he circumstances sur roundi ng the stat ement made by the Defendantindi cates that th e relin quis hm ent o f his righ ts was not t he produ ct ofint imidat ion, coerci on, or decepti on, butthatitwas the res ult of th e a pp ella nt' s fr ee and deli berat e choic e. The Defendantwas giv en Mirandawarni ngs and read t hem. He read and si gned t he wa iver a s w ell. H is demeanor was cal m and cooperati ve. He was given som ethin g to drink and to eat. Alt hough he wa s o f a y oung age, t he Defendanthas above- average intel li gence and indi cated no reason why he cou ld no t com preh end wha t rights he was rel inqui shing.

As fornot i nfor ming him t hat he coul d be tr ied as a n adult , t here i s no consti tut ional requi rement t hat mandates such informa tion be p rovided to secu re-19-

a kno wing waive r. Mirandawarni ngs inf orm a defendantthat“anyt hing y ou say can be used agai nst y ou in court. ” This appli es to anycourt . Further more, t he ultim ate decis ion t o try th e Defendantas an adul t was notmade until aft er he was questi oned and gave h i s s t at eme nt. Itwould hav e been premature and inap prop riate forthe det ecti ves t o outl ine al l the leg al co nse que nce s of a relinq uish m ent o f rights.

Deference is give n to t he tr ial courtto asse ss the c redi bil ity ofthe wit nesses an d d ete rm ine issu es of fa ct. A t an evid entiary heari ng on a moti on to su ppre ss e viden ce, th e trial co urt’s find ings of fact a re co nclu sive. State v. Jackson , 889 S.W.2d 219, 222 ( Tenn. Crim. App. 1993). The fi ndings of the t ri al judge are aff orded the weight ofa juryverdictand wil l notbe dist urbed on appeal unless the ev idence i n the record preponderates agai nst t he judgment o f t he tr ial cou rt. Id. ; see Sta te v. K elly , 603 S. W .2d 72 6, 72 8-29 (Te nn.1 980 ). State v. Kil lebr ew , 760 S.W.2d 228, 233 (Tenn. Cri m. App. 1988) ; The evi dence in the reco rd does not preponderate againstthe tr ial court' s fi ndings. This i ssue i s witho ut m erit.

The Defendantalso as sert s thathis c onfessi on should have been suppressed bec aus e it wa s no t tape -reco rded
. He readi lyadmits t hat ther e is no precedentin this s tate re quirin g co nfes sion s to be recorded. He ar gues thatthe lawsho uld be cha ng ed . He cites op in ions fro m two stat e supreme court s that have insti tuted a poli cy that confessions must be tape recorded i f atall possi ble. Sta te v. Scales , 518 N.W .2d 5 87 (M inn. 1 994 ); Ste pha n v. S tate , 711 P. 2d 1156 (Alask a 198 5).-20- In Step han , t he courtrul ed thatcustodi al i nter rogat ions i n a plac e of detent ion must be elec tronic ally rec orde d. 711 P.2d at1162. Thi s holdi ng was based entirely on t hat court’ s inter pretati on of the Alaska Consti tut ion. Id. at 1160. The Minnesot a Supreme Court ex erci sed it s superv isory power t o inst it ute a r eco rdi ng requ irem ent fo r cus todia l interrog ation s. Scales , 518 N. W .2d 592. Alt hough we agree t hat i t i s pref erabl e to r ec ord el ectronical lythe r eading of Mirandawarni ngs, t he wai verof r igh ts, and cus todi al i nter rogat ion s, w e decli ne to i mpose thisas a requi rement f or admissabi li ty o f st atements. Itinures to t he be ne fit of law en forcem ent to reco rd the pro cess es by w hic h it garners confessi ons by showi ng thatthe procedures were done prope rly and wit hout coerci on. It is ra the r cu riou s th at th e d ete ctive s in thi s case chose t o wri te outthe De fen da nt’s stat ement in l ong h and . Yet, ne ither th e fed eral n or sta te consti tut ions mandate the us e of r ecordi ng devi ces. Ther efor e, we f ind thatthe tri al cou rt prop erly ad m itted the De fend ant’s written state m ent. Th is i ssue has no m erit.

IV.

As hi s f ou r t h a nd f i na l i ss ue , t he Def en da ntcl ai ms thatthe t ri al court er red in decli ning to waiv e the $47, 000 fi ne assessed bythe j ury on the countof second-degree murder. The imposi ti on of f ines i s guided by the 1989 Sent encing Ac t. Second-degree mu rder i s a Class A fel on y for which the j ury may impose a fi ne notto ex ceed fi fty th ousand dol lars ($50, 000). Tenn. Code Ann. §§ 39-13- 210 (b), 40-35 -111(b )(1). Furt hermore, the puni shment shoul d be jus tl y deserved in relation to the s eriousn ess o f the offens e. Te nn. C ode Ann . § 40-35 -102(1 ).-21- The Defendantassert s thatbecause he is ind ige nt a nd the fine wo uld pose an eco nomi c ha rd shi p, th e t ri al cou rtsho ul d ha ve wai ve d t he f i ne. He cit es Sta te v. Bryant , 805 S.W.2d 762 (Tenn. 1991) which approved ofthe appel lat e revi ew of fi nes. He al so notes tha t the cou rt up he ld th is Court’ s vacat ing a f ine i mposed on an indi gent woman who worked as a wait ress and news paper del iv ery person. She also was con victe d forsel ling co cain e an d wa s fined $20 0,00 0. State v. Brenda G. Bryant , C.C. A. No. 872 , Sulliva n C oun ty (Tenn. Cri m. App., Knoxvi ll e, Dec. 27, 198 9), pe r m. to appeal grant ed (Tenn. 1990) . The Defendantcontends thathe is indi gent, wil l l ikel y spend twenty- fi ve years in pr ison, was in hi gh school and has no employmentrecord. Yet , proof ofindi gency and hardship doesnot ne ce ssa rily precl ud e t he p unis hm ent o f a fine. See Sta te v. M ars ha ll , 870 S.W .2d 53 2, 5 42 (T en n. C rim . Ap p. 1 99 3). If, h ow eve r, it ha m pe rs a de fen da nt’s reha bilitation , a fine m ay re pres ent a n un reas ona ble p unis hm ent. Id.
Here, the De fen da nt is clear lyunderage, indi gent and has not devel oped job skills . Th ere is evi dence, t hough, t hat he has supportfr om his familythathas not aba te d eve n aft er t his ca lcul ated and t ragi c cri me. W e do not f eel t hat t he imposit ion of th e fin e in this c as e is s uc h th at it contravenes t he purpose ofthe Sentenci ng Act; rathe r it reflects the seri ousness of t he cri me for whi ch the De fenda nt was convicted . W e find no error.
After thoroughlyrevi ewing the record and t he Defendant’s a rgu m en ts in this appeal, we concl ude thatnone have merit . Accordingl y, we aff ir m the judg m ent o f the trial c ourt.-22- ____________________________________ DAVI D H. WELLES, JUD GE

CONCUR:

___________________________________ DAVI D G. HAY ES, JUD GE

___________________________________ THOMAS T. WOODALL, JUD GE