### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Marc h 9, 200 5

STA TE OF TEN NES SEE v. LESH AU N N ORWO OD

Direc t Appeal from the Circ uit Court for Maury County

No. 12233 Stella Hargrove , Judge

No. M2003- 00541-CCA -R3-C D - F iled Jun e 16, 2005

A Maury CountyCircuit Court jury found the a ppellant, L eShaun Nor wood, g uiltyof sec ond deg ree murder, a nd the trial court sentence d him to twenty -five y ear s in the Depa rt m en t of Corre ction (DOC). I n th is ap p e a l, th e ap p e ll a n t c la im s ( 1 ) th a t th e e v id e n c e is in s u f f ic ie n t to s u p p o r t the conviction, (2) tha t the trial court erre d by ref using to suppress his confe ssion to poli ce, a nd (3) that the trial court erre d by

admitting prejudicia l photog raphs into e vidence

. Upon revie w of the re cord

a ndthe pa

rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opi nion of t he court, in which J OS EP H M. T I PTON and J OHN E VE R E TT W I L L I AMS , J J
., joined.

J ames M. Mar shall, Columbi a, Te nnessee , for the a ppellant, L eShaun Nor wood.

Paul G. Summers, Attorney Gene ral and Reporter ; Seth P. Ke stner, Assistant A ttorney Gene ral; T. Michae l Bottoms, District Attorney Gene ral; and Robert C. Sanders and J. Daniel Runde, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

At trial, Deputy

Nathan P agel of

the Maury

County Sheriff’ s Depa

rtment testified that he lived o n t h e R i dley -Jewel farm. About 6:00 a.m. on J anuary 24, 2001, Deputy

Pag el re ceive d a
te le ph on e c a ll f

ro m Ev a Jame s Cr ic hto n, wh o ow ne d the fa rm wi th h e r h us ba nd . M rs . Cric hto n to ld Deputy Pag el that a f

arm-ha nd had found a body near a barn. Deputy

Pag el went to the ba

rn and sa w the victim ly ing f

ace -down nex t to a wa ter troug h. Deputy Pag el saw a

wound behind the victim’s ri g ht e ar, te le ph on e d th e sh e ri ff ’s de pa rt me nt, se c ur e d th e c ri me sc e ne , a ndwa ite d f or the po lic e to

arrive. He te stified that he hea rd no g unshots on the night of January 23.-2-

Ag ent T. J. J ordan of

the Tenne ssee B ureau of I nves t igation (TBI ) testified that he investigated the victim’s death at the Ridley -Jewel farm and ar rived a t the crime sc ene a bout 9:35

a .m. on Janu ary 24

. Ag e nt Jord a n sa w that the vic tim wa s w e ari ng te nn is s ho e s, blu e je a ns , a t- sh ir t,

a nda lon g -s le e ve d je rs e y

a ndthat th e vic tim

ha d tw o g un sh ot wo un ds , one to the ba c k a ndon e to t h e back of

the hea d. The victim was holding a cig are tte lighter in his right hand a nd had a chec kbook, sevente en dollars, a n ATM debit ca rd, and a pack of cig are ttes on his person. Ag ent J ordan le arne d that the victim was Philli p Wil son and we nt to the victim’s home to speak w ith the vic tim ’s re la tiv e s. D u ri n g h i s inv e sti g a tio n, Ag e nt Jor da n le arn e d th a t Ry a n Pa c e a ndPa tty Ho lc omb may have been involved in the victim’s death. He testified that on the nig ht of J anuary 24, Ag ent J ason F og el and Lieutenant Jim Br ady went to Holcomb’s house . Holcomb wa s n o t h ome, but

arrive d w ith the app e lla nt i n h e r b lue va n a s th e of fi c e rs we re le a vin g

. Th e of fi c e rs a sk e d H olc omb to come to the sher iff’s de partment, a nd she ag ree d. Although the office rs had not asked the appellant to come to the department, he ar rived with Holcomb.

At the sherif

f’s de partm ent, Ag ent J ordan inter viewed H olcomb and then inter viewed the appellant. I n the appellant’s first statement t o Ag ent J ordan, he place d himself at the crime scene

. Howeve r, the appellant stated t hat he did not know any thing about the vi ctim’s death. After taking the appellant’ s statement, Ag ent J ordan left the sheriff ’s department and went to pick up Ry an Pace

. Ag e nt Jor da n bro ug ht Pac e to the sh e ri ff ’s de pa rt me nt an d all ow e d Pac e to spe a k with the app e lla nt. Th e app e lla nt the n c ha ng e d h is s tory , s a y ing th a t he a ndPa c e too k th e vic tim to the fa rm be c a us e the victim owe d the appellant $1,100 and the appe llant was g oing to try to ge t his money

from the vi c t i m

. H e a l s o t o l d A g e n t Jo r d a n t h a t h e s h o t t h e v i c t i m b e c a u s e t h e v i c t i m w a s “ d i g g ing in h is hooded jacke t” and he thought the victim wa s rea ching for a g un. On cross-e x am i n at i o n , Age nt J ordan te stified that the appe llant and Holcomb told him that t h e victim had stolen money from them. He a lso sa id the appellant and Pace told him that an ar g ument had occ urre d at the fa rm and that the victim had appe are d to be re aching for a g un.

Chery l Wi lson, the victim’s mother, testified that about 6:00 p.m. on J anuary 23, she and her husband we nt to Har dee’ s to g et t he victim two chicke n sandwiche s. They g ot the sandwiche s and broug ht them home for the vic tim

. L at er t h at evening , the victim told his mother that he ne eded $500 in order to buy

a car from Ry an P ace

. Howeve r, Mrs. Wil son told the victim t hat she did not have the money

. The victim told Mrs. Wil son that he was g oing to a near by McDona ld’s to wait for Pace to g et off w ork and tha t he and Pac e we re go i n g i n t o t h e country to look at Pace’ s car . The victim left home about 7:30 p.m. On cr oss-examination, Mrs. W ilson testified that the victim had been dia g nosed with schizophrenia, that he had “thug life” and “AK” tattooed on his chest, and that he wa s not a member of

a g ang

. Ag ent Vanc e Jack of the TB I testified t hat he a ssisted in the investigation of the victim’s death. On January

25, he intervie wed P att y Holcomb, who told him where to find the murder

w e ap o n

. B a s e d o n h e r i n f o r m a t i o n , A g e n t J a c k f

o u n d a S m i t h a n d W e s s o n

. 3 8 r e v o l v e r a n d t w e n t ytw o b ull e ts. On c ro ss- e xami na tio n, Ag e nt Ja c k te sti fi e d th a t H olc omb sa id the g un wa s h e rs

.-3-

L ieutenant Jim Br ady

o f th e M a u r y Co u n ty Sh eriff ’s Depa

rtment testified that on the morning of January

24, 200 1
, h e was dispatche d to the Ridley -Jewel farm. When he arrived, he sa w the victim ly ing next t o a wa ter troug h. The police secur ed the c rime sce ne and w aited for ag ents from the TB I Crime L aboratory

to arrive . L ieutenant B rady investigated the victim’s de ath and lea rned that Ry a n Pa c e a ndPa tty

Ho lc omb mig ht be inv olv e d. L ie ute na nt B ra dy a ndAg e nt F og e l w e nt t o Holcomb’s house, but she was not there

. As the officers were leaving
, Holcomb arrived in her blue minivan with the appellant sitting in the passenge r seat. The officer s asked Holcomb to come to the sherif f’ s department, and she a g ree d. When Holcomb arrived at the she riff’ s department, the appellant wa s with her. While Ag ent J ordan a nd Detec ti v e R o b ert Denton questioned Holcomb, L ieutenant B rady

and Ag ent Fog el took the appellant into Bra dy ’s offic e. The appellant sa id he was eig hteen y ear s old, and the off icer s rea d him his rights. At some point, Ag ent J ordan c ame into the office and beg an questioning the appe llant. Ag ent J ordan and L ieutenant Bra dy then left the she riff’ s d ep ar t m en t , p i ck ed u p R y an P ac e, an d b ro u gh th i m t o t h e s h er i ff ’s d ep ar t m en tfo r q u es t i o n i n g.

TBI Ag ent S teve Scott testified as a ballistics ex pert for the state. On January

25, 2001, he

rec eived two bullets re cover ed fr om the victim. On J anuary 26, he re ceive d a .38 re volver. Ag ent Sc ott te st- fi re d b ull e ts f

ro m th e g un a ndc omp are d th e m to the bu lle ts r e c ov e red f ro m th e vic tim

. Ag ent Scott co n cl u ded that the bullets re cover ed fr om the victim were fired f rom the re volver. Ag ent S cott rela ted that he f ound no g unpowder

residue on the victim’s sweatshirt, indicating that the victim was not shot at close ra ng e. On c ross-examination, Ag ent Scott acknowledg ed that the lack of g unpowder residue on the victim indica ted that the g un was fir ed at lea st two feet a way from the vic tim

. Deputy Robert Denton testified that on J anuary 24, 2001, he wa s a dete ctive with the Maury CountySheriff’ s Depa

rtment and was dispatched to the R idley -Jewel farm. Ag ent J ordan f ound an ATM re ceipt on the victim. Throug h their investigation, of fice rs learned the victim’s identity and that Patty Holcomb and Ry an P ace might be involved in the victim’s death. De puty Denton talked with Holcomb at the sher iff’s de partment a nd then went to Pace’ s house and talke d with him. P ace

came to the sheriff ’s depa rtment and g ave a

statement, implicating himself in the victim’s death.

Gennie V estal testified that he r son, Fre ddie Moss, worked f or Mr. a nd Mrs. Crichton on the Rid le y -Je we l f

arm a ndthat th e app e lla nt wa s he r g re a t ne ph e w. Ab ou t 9:3 0 p. m. o n Jan ua ry 23 , M s. Vestal drove her son to the f arm. As Ms. Ve stal was lea ving, she passed a white L incoln Continental

e nte ri ng the fa

rm . Sh e sa id tha t sh e didno t he ar a ny g un sh ots

.

Dr. Char les Har lan testified that he pe rfor med the victim’s a utopsy

. The victim rece ived two g unshots, one t o t h e b ac k of the he ad and one to the back. T he victim also had a head la cer ation consistent with his having f allen and struc k his head on the water troug h. Dr. Ha

rlan stated tha t the g unshot wound to the victim’s back wa s not fatal but that t h e gu n s h ot to the head c aused ins ta nta ne ou s d e a th. He sa id he c ou ld no t de te rm ine wh ic h g un sh ot w ou ndthe vic tim re c e ive d f

ir st.

Ry an Pace testified for the defe nse that he w as seve nteen y ear s old at the time of the vic tim’s death. On January

22, 2001, he we nt to school and then went to his job at McDona ld’s. About 8:00-4-

p. m., Pa tty

Ho lc omb te le ph on e d Pa c e a t w or k a ndtol d h im tha t sh e c ou ld g e t a go od de a l on so me marijuana . Pace g ot off wor k about 9:00 p.m. and met Holcomb outside the re staurant. The two of them left the McD onald’s in Holcomb’s blue m i n i v an an d parke d at a g roce ry store. While they

we re pa rk e d, the vic tim

a nd a ma n n a me d B ub ba

Ti ns leywa lke d u p to the va n a ndof fe re d to se ll them marijuana . Pace g ot out of the van and beg an walking with the victim a nd Tinsley

. As they

w e r e w a l k i n g , t h e v i c t i m p u l l e d o u t a g u n , s h o t i n t o t h e g r o u n d
, a n d t h e n g a v e t h e g u n t o T i n s l e y. The thre e men stopped at a house, a nd Pace g ave the victim his .22 pistol and $300 to buy marijuana

. Whil e Pa c e a ndTi ns le y

wa ite d n e ar s ome tr e e s, the vic tim we nt i ns ide the ho us e

. Th e vic tim c a me

ou tsi de a ndtol d Pa c e that th e pe op le ins ide the ho us e wan ted mor e mon e y . Pa c e g a ve the vic tim

a no the r $ 60 . T he vic tim

we nt b a c k in to the ho us e , a ndPa c e he arda c omm oti on

. Th e vic tim

c a me out of the house a nd told Pace that the people inside had taken Pace’ s money and g un. Pace a nd the victim walked back t o Holcomb’s van and got i n. The three went to ge t ga soline for the va n and at some point, the victim g ot out of the van. About 11:00 p.m., Holc omb and Pace went bac k to the house whe re the victim alleg edly had been robbed. The appellant was there and told Holcomb a nd Pace tha t the victim had been in the house earlier that evening

. Acc ording to the appellant, no one ha d r ob be d th e vic tim . Hol c omb a ndPa c e the n w e nt t o th e vic tim ’s ho us e to c on fr on t th e vic tim

. Ho we ve r, a

wo ma n c a me to the do or a ndtol d th e m th a t th e y

c ou ld n ot t a lk t o th e vic tim

. Ry an Pace testified that the next day
, J anuary 23, he we nt to school and then we nt to work

a t Mc Do na ld’ s. Th e vic tim c a me to Mc Do na ld’ s a nd tol d Pa c e that he c ou ld he lp Pace get his money back. T he victim waited a ll afternoon a nd evening at M cDona ld’s for Pace to g et off work. When Pace g ot off work about 9: 00 p.m., the appellant and P atty Holcomb wer e sitting outside the
restaur ant in Holcomb’s van. The appellant g ot out of the van, a nd Holcomb drove awa y . Pace, the appellant, a nd the victim got into Pace ’s white Lincoln Conti n en t al and left McDonald’s. The y stopped and g ot ga s and then drove to the Ridley -Jewel farm. Accor ding to Pac e, they went to the farm in order to g et some tools out of a barn and use the tools to fix a proble m with Pace’s c ar.
Pace pulled up to t h e b ar n, and eve ry one g ot out of the ca r. Pace testified that it was very dark but that he could see silhouettes. He st at ed t h at wh i le the appe llant was looking for a light switch in the barn, the victim r eac hed into the victim’s poc ket. The appellant pulled out a g un and shot the victim. P ace testified that he r an, heard another gunshot, and got i nto the car . He r elated that the appe llant also g ot into the car a nd told Pace tha t “h e co u l d s m o k e [Pace] as ea sy as he smoked [the victim] .” The y left the fa

rm and drove to PattyHolcomb’s house.

On c r o s s

- e xa mi n a ti o n , Pa c e te s ti f ie d th a t th e ju v e n il e c o u r t a d ju d ic a te d h im d e li n q u e n t of felony murder and kidnapping

. He said that the victim waited for him at McDonald’s a ll afternoon

a ndthat th e vic tim ’s mothe r w a s mista ke n whe n she te sti fi e d tha t the vic tim wa s at hom e . He sa id that he wa s scar ed of the victim and never discussed selling his car w ith the victim. P ace acknow ledg ed that althoug h he wa s afr aid of the vic tim, he allowed the victim to g et into his car on the nig ht of J anuary 23. He said that afte r t he appellant fired the first shot at the victim, he saw the victim running. A fter the shooting, the a ppellant wiped down the g un.-5-

The a ppellant testified that he w as ni netee n y ear s old at t he ti me of trial but was seve nteen at the time of the shooting a n d wa s transfe rre d from juvenile c ourt to be tried a s an adult. About 8:00 p.m. on J anuary

22, 2001, the appellant was at Br andon Strickland’s house . The victim arrived

a ndsta y e d a

bo ut t e n minu te s. B e fo re the vic tim le ft , he a sk e d th e app e lla nt t o g o o uts ide a nd y e ll. The a ppellant did as the victim had re quested, a nd the victim ran a way . About five or te n minutes later, the victim came back to the house a nd ag ain aske d the appe llant to go outside a nd y ell. The appellant a g ain did as the victim had re quested, a nd the victim ran fr om the house.

Th e app e lla nt t e sti fi e d th a t la te r that nig ht, Pa tty Ho lc omb a nd Ry a n Pa c e c a me to the ho us e

a ndtol d h im tha t th e vic tim had ac c us e d th e app e lla nt o f r ob bin g the vic tim . T he app e lla nt t old Ho lc omb a ndPa c e that he d id n ot r ob the vic tim , a ndthe thr e e of the m w e nt t o th e vic tim ’s ho us e to co nf ro nt the vic tim

. Ho lc omb we nt to the fr on t door , but a wo ma n a ns we re d th e do or a nd sa id that Holcomb could not see the victim. The t hree of them left the vic tim’s house, and Holcomb took the app e ll ant back to S tr ic kla nd ’s ho us e . T he ne xt da y , th e vic tim a ndEm ily

Willi a ms c a me to Str ic kla nd ’s ho us e . T he app e lla nt, the vic tim
, a nd Willi a ms l e ft Str ic kla nd ’s ho us e , r od e aro un d in Willi a ms’ c ar, a ndsmo ke d ma ri jua na

. Ab ou t 4:0 0 p. m., the y sto pp e d a t Mc Do na ld’ s, a nd the vic tim went inside for

about ten minutes. They

left the restaur ant, and the victim told them, “I ’ve g ot to ge t

rea dy for my plan. I ’ve g ot to ge t rea dy for what I ’m g oing to do.” The victim told the appellant that he wa s g oing to r ob Ry an Pace and take Pace’ s car

. The victim told the appellant that if the appe llant

wo uldhe lp h im, he wo uldg ive the app e lla nt the c ar’ s r ims

.

Th e app e lla nt t e sti fi e d th a t he a g re e d to he lp the vic tim ro b Pa c e a nd that he toldthe vic tim he knew of a f

arm whe re the y

could take Pac e. The victim told t he app el lant to meet him at McDona ld’s at 9:00 p.m., when Pace g ot off wor k. Wil liams and the appe llant then dropped the vic tim of f at his hou se

. Ab ou t 9:00 p. m., Willi a ms an d the app e lla nt w e nt t o M c Do na ld’ s. Ho lc omb was ther e, and the appellant g ot into her van. Holcomb told the appellant that Pace ha d asked he r to c ome to M c Do na ld’ s b e c a us e he wa s a fr a id o f the vic tim . H olc omb a sk e d th e app e lla nt t o g o w ith Pa c e a ndthe vic tim

a ndmake su re no thi ng ha pp e ne d to Pa c e . A bo ut 9 :15 p. m., Pa c e a ndthe vic tim

came out of McDona ld’s. Pace, the appellant, a nd the victim g ot into Pace’ s L incoln. They stopped at a g as st ation, and the victim went ins ide t o pay for ga s. Whi le the victim was g one, Pace told the appellant he wanted to g et his money back f rom the victim.

The victim retur ned to the car and the three men drove to the Ridley -Jewel farm. Pace pulled up to the ba

rn , a ndthe vic tim

a ndthe app e lla nt g ot o ut o f the c ar. Th e app e lla nt t oldthe vic tim to g ive Pace his money

back. Acc ording to the appellant, the victim sa id, “ [F]*** t hat. F*** tha t. I ’m g oing to do this sh**.” Pace g ot out of the ca r, and the appellant sa w the victim rea ch int o the victim’s waistband. The a ppellant pulled a g un out of his jacket poc ket, and “ it just went off .” He stated that he shot th e v i ct i m b eca use he thoug ht the victim was g oing to shoot somebody . The appellant r elated tha t he did not know how many times he fire d the g un. He said that afte r he shot the victim, he ran to the car and sat in the passeng er seat. Pace also g ot into the ca r, and the y

drove

a wa y fr om the ba

rn

. Th e app e lla nt a c kn ow le dg e d that he wi pe d do wn the g un bu t sa id tha t he did

no t te ll Pa c e he wo uld“ smo ke ” him . T he app e lla nt a lso a c kn ow le dg e d th a t he lie d to the po lic e in-6-

his first statement. Howe ver, he said that he h ad b ee n u n d er the influenc e of ma rijuana a nd was

scar ed.

On cross-examination, the appellant acknow ledg ed that Holcomb a nd Pace w ere mad at the victim and wanted to g et their money back f rom the victim. The appe llant s ai d t h at he wa s not planning to kill any one on the night of J anuary 23 and did not reme mber telli ng Ag ent J ordan tha t the victim owe d him $1,100. He said that when he shot the victim, the victim ha d n o t t h re at ened him. He acknow ledg ed that he first shot the victim in the back but denied tha t he meant to kill the

v i ct i m wi t h t h e s ec o n d s h o t

. He ac k n o wl ed ged t h at af t er t h e fi rs t s h o t , t h e vi ct i m wa s n o tp o s i n g a t h re at t o h i m

. He al s o ac k n o wl ed ged t h at h e d i d n o tch ec k o n t h e v i c t i m af t ert h e s h o o t i n g. Although the appellant had been char g ed with f irst de g ree preme ditated and felony m u rd er and espec ially ag g ravated kidnapping , the jury convicted him of se cond deg ree murder.

II. Ana lys is

A. Sufficienc y

of the Evidenc e

The a pp e ll a n t c o n te n d s th a t th e e v id e n c e is in s u f f ic ie n t to s u p p o r t h is c o n v ic ti o n. He

c on te nd s th a t th e e vid e nc e sh ow s h e a c te d in se lf -d e fens e and that th e state fa ile d to dis pr ov e his claim of self

-def ense. TheState arg ues that the e vidence is sufficient. We ag ree with the State.

On appe al, a jury

conviction re mo v es t h e p resumption of the a ppellant’s innoce nce a nd repla ces it with one of g uilt, so that the appellant car ries the burden of demonstrating to this court why the evidenc e will not support the jury ’s finding s. See State v. Tug gl e, 6 3 9 S.W .2d 913, 914 (Tenn. 1982) . The a

ppellant must establish that no “rea sonable trier of fa ct” could have f

ound the essential ele ments of the off ense bey ond a rea sonable doubt. See J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); Te nn. R.App. P. 13(e).

Acc ording ly , on appea l, the State is entitled to the stronge st leg itimate view of the e vidence and all rea sonable infere nces which may be dra wn there from. See State v. Williams, 657 S .W.2d 405, 410 (Tenn. 1983) . I n other wor ds, questions conce rning the cr edibilityof wit n es s es an d the weig ht and value to be g iven the evide nce, a s well as all fac tual issues raised by the evidenc e, ar e resolved by

the trier of

fac t, and not the appe llate courts. See State v. Pruett, 788 S.W .2d 559, 561 (Tenn. 1990) . To sustain the appe llant’s conviction for se cond degr ee murder, the State was re quired to prove that the a

ppellant knowing ly

killed the victim. See Tenn. Code Ann. § 39- 13-210(a )(1)

.

I n the instant case , the evidenc e shows that the a ppellant, Ry an Pace , and the victim drove to the Ridley -Jewel farm. Ag ent J ordan te stified that the appe llant told him the victim owed the appellant money and that the appellant was g oing to try to ge t his money

back. A ccor ding to Pac e, the victim had st olen m oney from him also. Take n in the light most favor able to the state , the proof at trial demonstra ted that the appe llant shot the victim, who was unarme d, in the back. The a ppellant admitted that he then shot the victim, who wa s not posing a thr eat to him, in the back of the hea d.-7-

The ap p el l ant’s main complaint reg arding the suffic iency of the e vidence is the jury ’s

re je c tio n o f h is c la im o f s e lf -d e fe ns e . T e nn e sse e Cod e An no ta te d s e c tio n 3 9- 11 -6 11 (a ) p ro vid e s:
A per son is just ified in threa tening or us i n g force ag ainst another pers o n w h e n a n d to th e d e g r e e th e p e r s o n r e a s o n ab ly b e li e v e s the forc e is immediately

nece ssary

to pro t ec t ag ainst the other’ s use or

a tte mpt e d u se of

un la wf ul f or c e . The pe rs on mus t ha ve a re a so na ble be lie f tha t th ere is a n im min e nt d a ng e r o f d e a th o r s e ri ou s b od ily injury . The da ng er c reating the be lief of imminent d ea t h o r serious bodily injury must be rea l, or honestly

believed to be rea l at the time,

a ndmus t be fo un de d u po n r e a so na ble g ro un ds

.

Self-def ense i s es s en t i al ly

a question of f

act to be de termined by

the jury . See State v. Clifton, 880 S.W .2d 737, 743 (Tenn. Crim. App. 1994); State v. I vy , 868 S.W .2d 724, 727 (Tenn. Cr im. Ap p. 19 93 ). As su c h, “ in the c on te xt o f jud ic ia l re vie w of the jury ve rd ic t, i n o rd e r t o p re va il, the [appellant] mus t show that the evidenc e re lative to justification, such as self-de fense , raises, a s a matter of l aw, a rea sonable doubt as t o his conduct being criminal.” Clifton, 880 S .W.2d at 743.

The only proof a t trial supporting the appellant’ s cl ai m o f self-defe nse wa s his and Pace’ s testimonythat the victim appea red to be rea ching for a

g un

. Ho weve r, it is within t he jury ’s prer og ative to ac cept or

reje ct a c laim of self-de fense . See Stat e v

. Go o d e, 956 S .W.2d 521, 527 (Tenn. Crim. App. 1997) . Given that the a ppellant shot the victim in the back and then in the ba ck of the he ad, we conclude that the jury was well within its purview to rejec t the appellant’ s claim of self-de fense

.

B . M oti on to S up pr e ss

Ne xt, th e app e lla nt c lai ms th at th e tr ia l c ou rt e rr e d b y de ny ing his mot ion to s up pr e ss h is confe ssion to poli ce. He contends that “the f acts of the case convincing ly sug g est that the conf

ession was not voluntarily

and fr eely

g iven.” The State claims the trial court pr operly denied the motion. We ag ree with the State.

At the su p p r e s s io n h e ar in g , L ie u te n a n t Ji m B r a d y te s ti f ie d th a t h e a n d D e te c ti v e F og el investigated t he victim ’s death and bega n looking for P atty Holcomb. They

located H olcomb and

a sk e d if sh e wo uldc ome to the sh e ri ff ’s de pa rt me nt f or qu e sti on ing . H olc omb a g ree d to c ome to the sheriff ’s department a nd broug ht the appellant with he r. The off icer s had not asked the appellant to come to the depa

rtment. Whil e Holcomb we nt into a co n fer ence room for que stioning, the appellant we nt into L ieutenant Bra dy ’s office. Lieutenant B rady hear d the appe llant say

that he wa s rela ted to someone who lived on the Ridley -Jewel farm. L ieutenant B rady testified that he wa nted to ask t h e appellant a

bout his connection to the fa rm. He a sked the a

ppellant his ag e, and the appellant told him he was eig hteen y ear s old and gave his birthdate as Aug ust 8, 1982. L ieutenant Br ady then re ad the a

ppellant his rig hts and had the a ppellant sig n a wa iver of rights fo rm . He rela ted that t h e appellant was not under arr est at that time. Ag ent J ordan c ame into L ieutenant-8-

B ra dy ’s of

fi c e a ndbe g a n q ue sti on ing the app e lla nt. Th e app e lla nt w a s c a lm a nddidno t app e ar t o be un de r the inf

lue nc e of dr ug s.

On cr oss-examination, L ieutenant B rady testified that he did not a sk to see the a ppellant’s driver’ s license a nd did not ask about his educa tion. He stated that the inter view wa s not audio- or vid e ota pe d a ndthat A g e nt Jor da n d id n ot r e re a d th e app e lla nt h is rig hts wh e n h e c a me in to L ieutenan t Br ady ’s offic e. He said that afte r questioning the appe llant, Ag ent J ordan le ft the sheriff ’s depa

rtment to pick up Ry an P ace and that the appellant was not fre e to l eave at that time. When Ag ent J ordan r eturne d to the sheriff ’s depa rtment, he intervie wed the appellant aga in. After the sec ond interview, Lieutenant B rady lear ned the a

ppellant was se ventee n y ear s old.

Ag ent T. J. J ordan te stified at the hea ring t h at on t he nig ht of J anuar y 23, he intervie wed Patty Holcomb. He the n went into L ieutenant B rady ’s offic e to interview the appe llant. The appellant did not have slurred speech, “appe are d fine,” and was not under arre st. The appe llant ga ve his first statement in w hich he de nied shooting the victim. After this first interview , Ag ent J ordan left the sheriff’s de partment to pick up Ry an Pace. A g ent J ordan br oug ht Pace to the de partment on the mornin g of

Janu a ry 25 a nda llo we d Pa c e to ta lk with the app e lla nt. Th e app e lla nt the n g a ve his second state ment, confe ssing to shooting the victim. He sa id that the appellant did not appe ar to be g ro g g y , th a t th e app e lla nt d id n ot a sk to r e st, a ndthat he didno t th re a te n the app e lla nt o r p ro mis e him any thing in re turn for his conf ession. On cross-examination, Ag ent J ordan te stified that afte r the appe llant’s first statement, the a ppellant was in c ustody . He a lso said that he did not rea d the appellant his rig hts before the sec ond interview. H e said that during eac h interview, he wrote dow n the appe llant’s statement. When the appellant finished giving his statements, Agent J ordan r ead the statements bac k to him and had the appe llant initi al the beg inning a nd end of eac h para g raph in the
state me nts

.

The trial c ourt ruled that the a ppellant re ceive d Miranda w arning s and wa ived his rig hts. The trial court noted that the appellant a ppear ed to be matur e for

his ag e and tha t he did not appea r to be under the influence of drug s or alcohol wh en he g ave his c onfession. I t denied the a ppellant’s motion to s uppress his conf ession.

I n revie wing a trial c ourt’s dete rminations reg arding a suppre ssion hearing , “[q] uestions of

cre dibilit y

of the witnesse s, the weig ht and value of the evidenc e, and resolution of conflicts in the evidenc e ar e matters entrusted to the trial judge as the trier of fac t.” State v. Odom, 928 S.W .2d 18, 23 (T e nn . 1 99 6) . T hu s, “ a tr ia l c ou rt ’s fi nd ing s o f f

a c t in a su pp re ssi on he ari ng wi ll b e up he ld u nle ss the evidenc e preponde rate s otherwise.” I d. Neve rtheless, appellate courts will r eview th e t ri al court’s a pplication of law to the f

acts pure ly

de novo. See S tate v. W alton, 41 S.W .3d 75, 81 (Tenn. 2001). F urthermor e, the State, a s the preva iling party , is “entitled to the strong est leg itimate view of the e vidence adduce d at the suppression hearing as well as all rea sonable and leg itimate infere nces that ma y be dr a wn fr om the e vid e nc e .” Od om, 928 S .W. 2da t 23 . M or e ov e r, we no te that “ in

e va luatin g the c or

re c tne ss o f a

tr ia l c ou rt ’s ru lin g on a

pr e tr ia l mo tio n to su pp re ss, app e lla te c ou rt s may consider the proof a dduced both a t the suppression hea ring and at trial.” State v. He nning, 975 S.W .2d 290, 299 (Tenn. 1998)

.-9-

I n Miranda v. A rizona, the United States Supreme Court he ld tha t pursuant to the Fif th and F ou rt e e nth Am e nd me nts ’ p ro te c tio n ag a ins t c omp e lle d s e lf -i nc ri min a tio n, po lic e of fi c e rs mus t

a dv ise a n a

pp e lla nt o f h is rig ht t o r e ma in s ilen t and the ri g ht t o c ou ns e l be fo re the y ma y ini tia te custodial interrog ation. 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966). I f the off icer s fail to g ive these wa rning s, statements made by the appe llant may

not be admitted for c er t ai n p u rp o ses in a criminal trial. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 15 28 (1994). The appellant must wa ive constitutional rig hts “voluntarily , knowing ly and intellige ntly .” Miranda , 384 U.S. at 444, 86 S. Ct. at 1612. The state has the burde n of proving the waive r by a pre pondera nce of the e v i d en ce . State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). In deter mining whe ther a n

app e lla nt h a s v a lid ly

wa ive d h is ri g hts
, c ou rt s mus t loo k to the tot a lit y of the c ir c ums ta nc e s. Sta te

v. Mid dle brook s, 84 0 S. W.2 d 3 17 , 3 26 (T e nn . 1 99 2) . We c on sid e r the fo llo wi ng fa c tor s in de te rm ini ng the vo lun tari ne ss o f a c on fe ssi on : th e app e lla nt’ s a g e ; e du c a tio n o r i nte lli g e nc e le ve l; previous experienc e with t h e p o l ice; the r epeated and pr olonge d nature of the interr og ation; the leng th of detention prior to t h e co n fe s s ion; the lack of a ny advice as to constitutional rights; the

unnece ssary

delay in bring ing the ap p ellant bef ore the mag istrate prior to the c onfession; the appellant’ s intox ication or ill health at the time the c onfession wa s g iven; depriva tion of food, sleep, or medica l attention; any

phy sical abuse ; and threats of abuse. State v. Huddleston, 924 S.W .2d 666, 671 (Tenn. 1996)

.

I n this case, the a

ppellant voluntarily

came to the sheriff ’s depa rtment with PattyHolcomb. The re cord r efle cts that he si g ned a waiver of rig hts form at 11:29 p.m. on J anuary 24, g ave his initial statement at 1:45 a.m. on January 25, and confessed to killing the victim at 5:45 a.m. The a ppellant do e s n ot c on te st the fa c t th a t he wa s a dv ise d o f h is Mir a nd a ri g hts or that he sig ne d a wa ive r o f rig hts form. I nstead, he contends that his conf ession was involuntary beca use he was deprive d of re st and
was not re advised of his Mira nda rig hts before he g ave his c onfession. The trial court conclude d that the appe llant was suffic iently apprised of his rights a nd waived those rig hts. The written wa iver supports the trial court’s conclusion. Moreove r, L ieutenant B rady and Ag ent J ordan te stified that the app e lla nt w a s cal m and did no t app e ar t o b e un de r the inf lue nc e of dr ug s w he n h e g a ve his statements. Ag ent J ordan a lso testified that the appe llant did not a ppear to be sleepy . Although the appellant wa s only

sevente en at the time of

the cr ime, he lied to t he off icer s, telling them he was eig hteen y ear s old and g iving a birthdate that would make him eighte en. The trial court noted tha t the app e lla nt a

pp e are d matur e fo r his a g e , an d the of fi c e rs didno t th re a te n th e app e lla nt o r p ro mis e him a nythi ng in r e turn f

or his c on fessi on . We c on c lud e that th e e vid e nc e do e s n ot p re po nd e rate ag ainst the trial court’s ruling that the a ppellant knowing ly , intelligently , and voluntarily confe ssed to killi ng the victim.

C. Prejudicial Photogra phs

F ina lly , th e app e lla nt c la ims the tr ia l c ou rt e rr e d by a dmi tti ng pr e

jud ic ia l ph oto g ra

ph s in to evidenc e. Howe ver, the appellant has waived this issue by failing to include it in his m otion for new trial. See Te nn. R.App. P. 3(e).

III. Conclusi on-10-

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ NORMA McGEE OGLE, J UDGE