APPENDIX

(Excerpts from

the Court of Crim

inal Appeals’ Decisi

on)

IN THE T ENNES SEE C OURT O F CRIMIN AL APPE ALS

AT JACKSON

DECEMBER 1998 SESSION

STATE OF TENNESSEE, Appellee,

v.

TYRONE CHALME

RS, Appellant.

C.C.A. NO. 02C01-9711-CC-00449 SHELBY COUNTY (No. ____ Below) The Honorable Caroly n Wade Blackett (ESPECIALLY AGGRAVATED ROBBERY and FELONY MURDER - DEATH PENAL TY )

OPINION FIL

ED: March 15, 1999.

AFFIRMED

GARY R. WADE, Presiding Judge.

OPINION

[Sections on Backgr

ound and Sufficiency of the Evid ence Deleted]

II Next, the defendant contends that the trial court erroneously admitted a photograph of the victim as he was fo

und on the street. T

he photo depicts the

victim lying

face down. His pa

nts had been lowered to ankle level. The defendant insists that "the photo in question was void of probative weight and packed full of impermissib le and inflammatory content."

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. Rule 403, Tenn. R. Evid., however, provides that relevant eviden

ce may be e

xcluded in certain

situations: Exclusion of Relevant Evidence on Grounds of Prejudice,Confusion, or Waste of Time. Although relevant, evidence may be exclud

ed if its probative

value is substantia

lly outweighed by the danger of unfair pre judice, confusion of the issues, or misleading the jury, or by consider ations of undue delay, waste of time, or needless presentation of cumulative evidence.

Simply because evidence is prejudicial does not mean the evidence must be excluded as a ma tter of law. See State v. Gentry , 881 S.W.2d 1, 6 (Tenn . Crim. App. 1993). Co

urts must still determine the relevance of the photograph and weigh its probative value ag ainst any undue prejudice.

In State v. Banks , 564 S.W.2d 947, 951 (Tenn. 1978), our supreme court recognized "the inherently prejudicial character of photogra phic depictions of a murder victim...." In adopting Federal Rule of Evidence 403 as its test for admissibility, the court suggeste d a variety of factors for consideration by the trial judge. The "value of photog raphs as evidence, ... their accuracy and clarity ... whether they we re taken before the corpse was moved ... [and] the inadequacy of the testimonial evidence in relating the facts to the jury" are a ppropriate factors. Id

. The admissibility of relevant photographs of the victim is within the sound discretion of the trial judge,

and his or her ruli

ng on admissibility

will not be disturbe

d on appeal absen

t a clear showing of an abuse of that discretion. Banks , 564 S.W.2d at 949. See also State v. Bigbee , 885 S.W.2d 797, 807 (T enn. 1994); State v. Van Tran , 864 S.W.2d 465, 477 (Tenn. 1993).

The photograph at issue is clearly relevant. The state had to pr ove, notwithstanding the defendant's confession, that the defendant killed the victim during an attempt to commit an especially aggravated robber y. The photograph suggests that the victim was shot in the back causing him to fall face down. As the state argued at trial, the victim's pants could have bee n dropped to his ankles to prevent him from fleeing or otherwise resisting during the robbery

. Although a portio

n of the body

is nude, neither th

e wounds nor blood a

re highlighted

in the photo at issue. The photograph is particularly relevant as corrobor ative of the details of the incriminating statement made by the defendant. I n our assessment, the probative value outweighs any undue prejudicial effect.

As a collateral claim, the defendant also contends that the admission of the photograph into evidence violated his right to due process and his right to be free from cruel and unusual punishment. See U.S. Const. amend. V III , XIV. We do not a

gree. The phot

ograph is not so inflammatory

as to cause the jur

y to convict o

ut of passion or ca

price. The fac

ts, in this context, do not form any basis for a claim of cruel or unusual punishment.

III The defendant also claims the statement he gave to the police was the result of coercion and force and should not have been admitted at trial. We disagree.At the hearing on the motion to suppress, Lt. James L. Nichols of the Memphis Police

Department testified that he assisted Sergeant D. E. Woods in the August 20, 1994, interrogation of the defendan

t. Lt. Nichols r

ecalled that the

defendant was in

formed of his Mira

nda rights before any

questions were su

bmitted. Accordin

g to Lt. Nicho

ls, the defendan

t understood his rights and wished to make a statement to the police. Lt. Nichols stated that neither he nor Sergeant Woods c

oerced or threa

tened the defen

dant in any w

ay and neve

r promised him anything in

exchange for hi

s statement. He de

scribed the state

ment as freely

and voluntarily given. The state

ment, which was ma

de during a for

ty-five minu

te interview, wa

s reduced to writing and sig

ned by the de

fendant. Lt. N

ichols, who descr

ibed the defenda

nt as reasonably intelligent, did n

ot remember whet

her the defenda

nt signed a sepa

rate "advice o

f rights" document.

Elise Flowers, who transcribed the statement as Lt. Nichols and Sgt. Woods conducted the interview, testified that the defendant was advised of his rights before the interrogation. She testified that the defendant acknowledged his rights, agreed to talk, and was not threa tened, coerced, or promised anything in return for his answer s. Ms. Flowers did not remember whether the defendant had singed a separate "advice of rights" form or whether he had read the transcript of the interview in her presence.

At the suppression

hearing, the de

fendant claimed

that he had been q

uestioned previou

sly by the officers and had informed them that he did not want to give a statement. He asserted that he had not been advised of his rights and did not understand why he was being forced to give a statement. The defendant testified that Sgt. Woods and two other officers struck him on the head several times with a telephone book. The defendant alleged that the officers force d the confession and written transcript. He insists that Ms. Flowers gave false testimony.

On cross-examination, the defendant admitted that he was in custody at that time on an attempted robbery and attempted murder charge stemming from the separate incident which had occurred ear

lier on the same nig

ht as the murder. T

he defendant, w

ho had pled guilty

to those charges prior to this hearing, stated that he gave a statement relating to the earlier incident at about the same time he gave the statement in this case. The defendant testified that he was beaten and forced to talk during both interviews. He conceded, however, that he fa iled to bring these claims to the attention of the trial judge who accepted the guilty plea s to attempted murder and attempted especially aggravate d robbery. When asked during the submission hearing, the defendant asserted that he had voluntarily given the statement without being coerced or threatened. He explained this omission on his being "stressed out" because his mother was having health problems. Interestingly, the defendant acknowledged that he had been advised of his rights befor

e he gave a sta

tement on the prior

charges and th

at he understood a

nd voluntarily waived those rig

hts.

Sgt. Woods denied having physically or ver bally abused the defendant at any time before or during the interview on the felony murder. Sgt. Woods testified that he advised the def endant of his rights, did not coerce the defendant, and did not suggest what answers the defe ndant should provide.To support his argument that the trial court erred in denying his motion, the defenda nt places primary emphasis on his testimony that he was bea ten with a telephone book and that the initial "advice of rights" document has been lost or misplaced.

It is the duty of the trial judge to determine the voluntariness and the admissibility of the defendant's pretrial statement. State v. Pursley , 550 S.W.2d 949, 952 (Tenn. 1977). The trial court's determination that a confession was given knowingly and voluntarily is binding on the appellate courts unless the evidence preponderates otherwise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). "Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." Odom , 928 S.W.2d at 23. I n addition, "the pa

rty prevai ling in the trial c

ourt is entitled to the strongest le

gitimate view of

the evidence ad

duced at the suppr

ession hearing

as well as all reasonable and legitimat e inferences that may be drawn from th at evidence." Id. The trial j udge did not make explicit findings of fact in this case, simply stating, "At this time, based on the testimony an

d based on the Cour

t's review of th

e statements and o

ther evidence,

the Motion to Suppress by the defendant will be denied at this time." Nevertheless, the denial of the motion implies a determination that the defendant did voluntarily and knowingly waive his rights. See State v. House , 592 S.W.2d 902, 904 (Tenn. Crim. App. 1979).

In Miranda v. Arizona , 384 U.S. 436, 479 (1966), the United States Supreme Court ruled that before a cu

stodial interrog

ation, police off

icers must advise d

efendants of the

right to remain silent and the rig

ht to counsel. I

f these warning

s are not given,

any stateme

nt elicited from a defendant is not admissible in trial. Stansbury v. California, 511 U.S. 318, 322 (1994). A defendant's rights to counsel and against self-incrimination may be waived as long as the waiver is made "voluntarily, knowin gly, and intelligently." State v. Middlebrooks , 840 S.W.2d 317, 326 (Tenn. 1992). The Fifth Amendment right against self-incrimination may be waived only if done so voluntarily, knowingly, and intelligently

. Miranda , 384 U.S. at 479. In order for an accused to effect a waiver, he must be adequately apprised of his right to remain silent and the consequence of deciding to abandon it. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). In determining whether the confession was voluntary and knowing, the totality of the circumstances must be examined. State v. Bush , 942 S.W.2d 489, 500 (Tenn. 1997).

In our view, the trial court properly denied the motion. Implicit in the conclusion reached by the trial court is that the testimony of the three witnesses for the state was more credible than that of the defendant. While there is no separate "advice of rights" form, both the written statement and the testimony at the suppression hearing specifically demonstrate that the defendant was advised of and waived his rights before talking to police. "The law does not require a writte

n waiver," as lo

ng as the recor

d demonstrates the

defendant was a

dvised of his rights and did, in fact, waive them. State v. Mann , 959 S.W.2d 503, 530 (Tenn. 1997). See also State v. Elrod , 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986) (absence of written waiver does not per se require suppression if waiver can be found from the surrounding circumstance s). The evidence simply does not preponderate against the trial court' s ruling. See Odom , 928 S.W.2d at 23. Thus, the issue i

s without merit.

[Section IV. Sufficiency of the aggravating evidence against mitigating evidence, review ofdeath sentence unde r Tenn. Code Ann. § 39- 13-206(c) and propo rtionality revie

w –Deleted] Accordingly, the judgment of the trial court is affirmed. CONCUR: THOMAS T. WOODALL, JUDGE JOHN EVERETT WILLIAMS, JUDGE