# FILED April 23, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710- CR-00394 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. W. FRED AXLEY,JUDGE BERNARD T.ANDERSON, ) ) Appe llant. ) (FIRST D EGRE E MU RDER )

FOR THE APPELLANT : FOR THE APPELLEE : LEE WIL SON JOHN KNOX WALKUP 200 Jefferson Avenue, Ste. 80 0 Attorney General& Reporter Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenu e North Nashvill e, TN 37243 JOH N W. P IERO TTI District Attorn ey Ge neral EDG AR PE TER SON , IV Assistant Distri ct Attorney General Criminal Just ice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ REVERSED AND REMANDED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Bern ard T . Ande rson, a ppea ls as of r ight from his convicti on forfir st degree murder in t he Shelby County Cri minal Court. Followingthe sentencing phase of the t rial, the jury sentenced the Defendant t o life imprisonment without the poss ibility of parole. Defendant assert s the followin g issue s on a ppea l: I. Whether the trial court erred by d enying D efenda nt’s motio n to supp ress an d allowi ng Defendant’s statements to the poli ce to be admitted i nto evidence; II. Whether the trial court properly admitted Defe ndan t’s prio r conviction for theft; III. Whether the tri al court pr oper ly a dmitted cert

ain photographs which Defendant al leges were more prej udicialthan probative; IV. Whether the evidence was su fficient to convict Defendant of fi rst degree murde r; V. Whether the evidence was suf ficien t to impose l ife impri sonment without the p ossibil ity of

parole based upon t he aggravati ng circumstance that the murder was committed duri ng the commission of a robbery; and VI. Whether the tri al court erred in admit ting evi dence of “oth er crimes” thr

ough Defendant’s statements to the poli ce. Based upon the erro neous ad mission of D efendant’s state ment of Jan uary 11, 1995, to the p olice, w e reve rse the Defe ndan t’s con viction a nd rem and fo r a new trial.

A pretr ial he aring was held on Se ptember 14, 1995, to determi ne wh ethe r three (3) statements, taken on October 10, 1994, Januar y 9, 1995, and January 11, 1995, should b e supp ressed pursua nt to Defendant’s pr etrialmotion . Otis Stew art, the chief in vestiga ting offic er in the Homicide Div ision, was assigned to the murder of Gregory Harri s. Information given to th e police poi nted to the Defendant as having a pr ior

alterc ati on wi th t he vi cti m. On October10, 1994, Defendant appeared-3-

at the pol ice stat ion to prov ide a witness statem ent. Defendant was accompanied by an atto rney, F orrest Dura nd, wh o had not as yet bee n retain ed to represent Defen dant. Defendant was not given his Miranda rights prior to giving his statement as Stewart explained t hat he was not a suspe ct at that time. Defendant

gave a nine (9) page statementin which he deni ed any involvement or knowledge r egarding the murder of the vi ctim. Defendant instea d related t hat the last time he had spok en with the vict im was on September 24, 1994, three (3) days prior to his murder on September 27, 1994. Durand wasprese nt durin g the e ntire tim e in which Defendant gave his statement, and Defendant andDurand left af ter the Defendant completed his statem ent.

Stewart received f urther i nfor mation t hat Defendant was i nvolved i n the murder of the vi ctim and asked him to com e in for questi oni ng i n Jan uary 1995 . On January 9, 1995, Defendant and Durand again appeared at the police station for an inter view. Defendant was adv ised of his const ituti onal right s and then ini tialed a written waiver of

his ri gh ts at 3:30

p.m. After

conferri ng with Durand, Defendant gave an oral sta temen t. At 5:20 p.m ., the Defe ndant w as aga in advised of his rights and then s igned a written waiver of his rights. Stewart recalled th at Dura nd wa s “in and out”during the cour se of t he inte rview.

In this five (5) page statem ent given to police o n January 9, 1995, Defendant admitted thathe was invol ved in the murder of the vi ctim. On September 27, 1994, De fendantbeeped the victim, knowing that Robma W illi amson intended to ki ll th e vi cti m. Defen dant w as living wit h Williamso n and Williamson’s f amily at t he time. Defendant arranged for the victim to give them a ride. After bei ng picked up by t he victim outside o f William son’s ho me, the three (3) drove t o a rural ar

ea of Shelby-4-

Coun ty where Williamson shot the victim tw ice. At th e con clusio n of his statem ent, Defenda nt was taken into police custody.

On January 11, 1995, Stewart got Defendantout of h is jail cell a t 1:30 p .m. in orde r to clarify some things regarding hi s prior st atement. Stewar

t recall ed tha t Defendant was allowed to telephone hi s father, Darrel l Ande rso n, at 1: 35 p. m. Defendant was again advi sed of his rights and si gned a written wa iver. Stewart stated that D efend ant did not ask for his attorney, nor did Stewart at tempt to contact Dur and. In this final an d third st atement to the police, Defendant stated that he actually sh ot the victim based upon th e victim’s d isrespec t toward h im.

Defendant also test ifiedat the hea ring. He recalled t hat on October 10, 1994, Durand accompanied him to t he police sta tion an d the p olice a dvised him o f his rights. On January 9, 1995, Durand again accompanied Defendant to the police station. During thecourse of the intervie w with the police, Du rand left for a peri od of twent y-fi ve (25) minutes. Although the poli ce did callDurand as requested by Defenda nt during Durand’ s absence, he cl aimed the poli ce continued to question him. Both Defendant and Durand were given the opportunit y to read t he statement prior to Defendant

signing i t. Defendant stated th is statement was given fr eely and voluntarily.

On January 11 , 1995, Stewa rt retrieve d D efendant fr om his jailcell i n order to “clear u p” his p reviou s state men t. Defe ndan t testifie d that he requested th e presence of his at

torney on t hree (3) occasions, but t hat Stewart refused each request. Defendant also di d not recall being advise d of his r ights, a lthough he did sign a “telepho ne waiver” (form which docu ments D efendant’s req uest for a-5-

telephone call), prior to his statement even though he did not ca ll his fat her untilthe statementhad been completed. Defendant state d that he gave t his thi rd statement because he “was sca red of what m y charge pa rt ner might do to [him] or what the officers probably woul d w ant to do to [him].” Defendant did r

ead the statement before h e signed it.

Forrest Duran d te stifi ed that on October 10, 1994, he was only assist ing Defendant at Defendant’ s brother’ s request. Defendant was only interviewed asa witness that

day, but Du ran d was certai n that he was not present when the statementwas typed up. On January 9, 1995, Durand represented Def enda nt, althoug h he had not as yet been paid a retainer fee. After bei ng present duri ng a portion of the interv iew, Durand l eft wit h the impressi on that thepolice were through and were drawing upcharges. Durand r eturned to his of fice, bu t at app roxim ately 4:15 p.m. he received noticethat Defend ant was givi ng a statement. Durand recalledthat he was “s tunne d and shoc ked” w hen h e rece iv ed the m essage. Durand return ed im med iately to thepol icestati on, alt houg h he bel ieved t hat some statem ents were given be fore his return. Durand was present at the conclusi on of the statem ent, followin g which he and Defen dant sign ed the sta temen t. Durand was not notifi ed oreven aware of the third stateme nt given by the D efendant on January 11, 1995. In its rul ing on the m otion to suppress, t he trialcourt found that on January 9, 1995, Defendantcame to the police station with his attorney

at approxi mately 3:00 p.m. Specificall y, the tri al court made the followi ng findings: After discussion w ith the police and [D efendant], [Defe ndant’s attorney] left the police depar

tment. Anderson was advised of his ri ghts at 3: 30 thatafternoon and i nitial ed an acknowledgmentform which described those rights. Anderson reques ted a second conference w ith Mr. Durand before answeri ng anyquestions or making a statem ent.-6- Mr. Durand was calledand returned to the pol ice department . At 5:10 p.m. Anderso n was agai n advised of his ri ghts and signed the advice of rights and waiver of rights forms use d by the M emphis Police Depa rtment. At 5:23 p.m. Ander son was told t hat he was un der arres t, thathe might be charged wi th fir st degree murder, an d, after he acknowledged understandin g the rights which w ere aga in explaine d to him, Anderson began to give his second statement. Anderson admitted calli ng Gregory Harris with full knowledge that he was to be murdered and acc usedRobmaWilliamson of shooti ng the vict im. The statement ended with thefollowi ng: Q: Is your attorney, F orest Du rrand, pre sent du ring this state ment? A: Yes sir. Q: Is t his statem ent given freely and truthfully, withou t any threa ts o r promises? A: Yes sir. Q: I willask you to read over this five page statem ent, an d if you fin d it to be true and correct given by you, I will ask you to i nitialthe bottom right hand corner of the fi rst four pages and si gn your name, date and time on the l ines provi ded below. Do you under stand? A: Yes sir. (Emph asis added ).

The trialcourt fur

ther noted that the Defendant initi aled each page of t he statement and signed it

at 6:16 p.m. on January 9, 1995. Defendant’ s attorney also signed t he statement as a witness.

At trial, the S tate be gan its eviden ce wit h t he testimony of Robert Harris. Harris, t he victi m’s father, testified that i n September 1994, thevicti m was livi ng at home with h is p aren ts a nd workin g fo r Fed eralExpr ess. On September 27, 1994, the victi m left hi s home to go to work and Har ris never saw the vic

tim ali ve again. Police o fficer

s came to their

home early in t he morning hours of September 28 , 1994, to notify th e fam ily of the vic tim’s d eath. H arris went to the morgue and identif ied his son. Harris recover ed his son’s p ersonal proper ty from t he police, includi ng lighters, a sm all knife, a comb, a compact, a t ube of chap-stick, a be eper, two (2) ring s, and on e (1) pen ny.-7- Patric ia Harris, th e victi m’s mother, testifi ed that her s on and the Defendant had known each other si nce elem e ntary sch ool. On S eptem ber 24, 1 994, prio r to leaving forwork, Mrs. Harris gave t he victi m approximately $10.00 when he asked her if she had any m oney. Be cause she had a headache, she laid down i n her bedr oom. When she arose, her son an d Erby Pritchar d were there. Around 5:45 p.m., the v ictim came int o her bedroom and asked what they were going to eat for dinner. After replying that she did not feel well because of her headache, she told him sh e would not be co oking. T his was th e last time she saw the victim a live.

On September 28, 1994, at approxi mately 2:00 a. m., a poli ce officer arri ved at her home and they advi sed her ofthe vict im’s death. The Defendant tel ephoned her home and asked what he could do f or their family d ue to the v ictim’s dea th. Mrs. Harris estimated t hat the Defendant cal led two (2)or three(3) ti mes that day. She explainedon cross-examination that the Defendant had been barred fr om their ho m e and she could not s ay that t he victi m and the Defendantwere fri ends at the t ime of the vict im’s death.

Dr. Thom as Fran cisco is the medic al exam iner fo r Shelby C ounty, and he performed the autopsy of the vi ctim on September 29, 1994. His e xamin atio n reveal ed that ther

e were two (2) gunshot wounds to t he head that were “ ne ar gunshot wounds,” meaning t hat the powder was deposited on the skin itsel f. As the range of fire was f

ound to be “l oose contact, ” he stated t hat the muzzle was not tight against the head but was cl ose enough that t he soot and powder and stipl ing were deposited on the skin adj acent to t he area. Dr. Francisco described that wit h loose contact gunshots, t he muzzle of the gun was probably touching the body upon firi ng. Dr. Francisco described the damage to t he victi m’s brain as t he skull bei ng fractur ed,-8-

with a tearing of

the brain stem itself, resulting in almos t instantan eous d eath. Bo th wounds were fatal, allowin g less than a min ute for t he victi m to die as a result of the gunsh ots.
Erby Pritchar

d testified that he was f riends wit h the victi m. On September 27, 1994, the vict im came to Pritc hard’s home, driving his t urquoise Mazda Protégé, and theyrode around the nei ghborhood for a while. After goi ng to the vi ctim’s home, the two (2) left ag ain in the vi ctim’s Protégé and drove over to the Fell ow Homes area in search of marijuana. Pritchard purchased a “dime sack” of marijuan a for$10.00 and they rol led up a joi nt and then shar ed it. The victi m stopped by Captain D’s and purchased a fish sandwich, the n told Pritchard that hehad to g o ta ke c areof s ome business and wo uld drop him off. Prior to leavinghis home, the v ictim had r eceived
a page from “Bernard.” W hen Pritchard asked i f hecou ld g o al ong w it h th e vi cti m, the victi m indicated t hat he had some business wi th “Nard” t hat he was going to take
care of by him self. Later th at evenin g, Pritcha rd stated that he called the victim ’s home and paged him to fi nd out if he had returned andnever recei ved a response.

Robe rta Wilkins li ves at 1774 West Raines and was seventy-five (75 ) years old at the ti me of the trial. She liv ed by herself in her home which i s near the intersect ion of Raines and Sewanee. On September 27, 1994, she called her son and asked for him to c ome a nd take her to the grocery store. An hour later, she heard a “rumbling”

noise outsi de. Mrs. Wilki ns got up and looked out her front

door, towards the corner of Raines and Sewanee. She esti mated the tim e to be appro ximate ly 7:30 or 8 :00 p.m
. She could see the top of a lit tle car andsaw one (1) person moving around the car who l ooked to be a black male. Mrs. Wilkins saw the figure walk acrossthe road, come back to the car and get in and t hen drive up-9-

Sewanee Road. When her son arrived, they drove to Kroger and she told hi m what had happened. On their way home, they stopped at the intersec tion of Rai nes and Sewanee. Her son got out of the car because he hadobserved what f irst appear ed to be a “paper or box ” on the si de of the road. The police drov e through t he are a a nd her son asked them to stop because he thought he had found a body. Mrs. Wilkins did not

look in t he area of where t he body was found.

W illie Wilkins, Mrs. Wilkins’ son, test ified t hat on September 27, 1994 , he took his mother to the g rocery store. On thei r way home, they stopped at t he intersec tion of Raines and Sewanee because he saw “somethi ng like some eyes s hining.” When Mr. Wilk ins go t a little closer, he observed a pack of dogs and then saw a body lying there. Wilkins sat in his car unt il a policeofficer d rove b y and th en ad vised h im that there wa s a bod y lying in the g rass.

Bob by Jones, an officer wi th the Memphis Police Department, was on dut y on September 27, 1994. He was called to the inte rsection of Raines and Sewanee at approxim ately 11:3 0 p.m. When he arrived, he saw a body lyi ng on the north side of the road. J ones could not at first identif y if t he body was that

of a m ale or fe male
as there was a jacket ar ound the head and the v ictim’ s shirt was partial ly pull ed up to the rib cage. T here we re no sign s of life and th e body w as actua lly stiff. Jones secured the scene w hile waiting for officers to arrive an d assist h im. He recalled t hat the vict im had two (2) rings on his l eft hand.

C.B. Hatch el, ass igned to the c rimina l crime scen e bure au of th e Mem phis Police Department, recounted his i nvestigat ion of thescene on September 27 and 28, 1994 at the i ntersecti on at Raines and Sewanee. He observed t he victi m’s body-10-

in a grassy area t

o the northwest . He took photogr aphs and drew sketches of the body. A comb, some chap-stic k, one (1) penny and a beeper were fou nd scattered about in the g rass n ear the victim’s shoulder. A powdered compact was found in t he victim’s right r

ear pocket. From the photographshe took, Hatche l identified a picture of the vict im in which hi s pants pockets are turned i nside out. The photographs also demonstrated that

the vict im’s coat was pul led up over hi s head.
Sergeant Otis Stew art of the M emph is Police D epartm ent w orks in t he Homicide Bureau and was working t here on September 28, 1994, when he was assigned to this

case. After

talking with E rby Pritcha rd, Stewa rt began to investiga te the Defendantas a possible witness. The poli ce contacted t he Defendant and asked him to come in as a possibl e witness. The Defendant came to thepolice station on October10, 19 94, ac com panie d by an attorne y, Forre st Dur and. D efend ant’s Octob er 10, 19 49 statem ent was read to the jury.

W hile continui ng their inves tigation, the departm ent rece ived mo re info rmatio n linki ng the Defen dant an d Rob ma W illiamson to the victim ’s death. The Defendant
was again requested to come to the pol ice stat ion on January 9, 1995, and he ag ain showed up with hi s attorney Forrest Duran d. Because Defendant was now a potentialsuspe ct, he was advi sed of hi s right s prior to his inter view. Defendant read and executed the waiver of ri ghts form in his attorney’s pr esence. Sergean t Stewart described that Attorney Du rand was “t here p artial ly thr ough most of the or al interview.” He read this s econd statement to the jury . Sergeant Stewart recal led thatForrest Durand came back int o the inte rview room j ust as Defendant was readin g over his statem ent and preparin g to sign it . Durand wit nessed the signi ng of the statement, then t he Defendant was arr ested.-11- On January 11, 1995, the Defendant was a gain advised of his Miran da rights and brought in f

or questioni ng. Prior to the quest ioning, Defendant signed a “telephonewaiver” a nd c alled his fa ther, Darr ell Anderson, at 1:35 p.m. At 1:40 p.m., the Defendant

signed an “Advice of Rights” form which acknowl edged that he had been advised and had waive d his rights. Sergeant Stewart noted that Defen dant’ s l awye r was n ot pres ent an d that D efend ant did not req uest h is attorney’ s p resence at any time during t he questioni ng. As descri bed above, the conten ts of such statem ent was read into e vidence for the jury.

This wa s the clos e of the S tate’s cas e-in-chief.

The Defe ndan t testified on his own b ehalf. D efend ant de scribe d his relation ship with the victim as “best friends, ” seeing each other nearl y every day of the week. Defendant deni ed kill ing the vict im, stati ng that Robma Williamson actua lly killed him. Defendant also de nied any knowl edge of luring t he victi m to the
carso t hat

RobmaWilliamso n could commit murder. He indicatedthat any statem ents which indica ted he did ha ve kno wledg e of W illiamso n’s intent had been added into hi s statements wi thout his knowledge. He had been i n j ail for appro ximate ly sixty-four (64 ) hours when the poli ce came in to ret rieve hi m for questioni ng on January 11, 1 995. Sergeant Stewart took hi m from his cellwithout telli ng him anything and accompanied him to aconference room where another man
was waiti ng. Once i nside t he confer ence room, Stewart adv ised hi m that he wa s there “to clear

up a few matters in the statements that [he ] gave in [ his] prev ious statem ents on the 9th of January.”

Defendant again stated that he was not advised of his ri ghts prior

to givi ng a statement on Januar y 11, 1995. It was only after giving his statementthat Defendant recalled bei ng given the “Advice of Rights” form which-12-

he signed. Pri or to givi ng his statement, Defendant aske d for his attorney on three (3) sepa rate occa sions, bu t was de nied that rig ht each time.

Defendant stated th at he p aged the victim to ask him fo r a ride to a friend ’s ho use. The victim agreed and, after g oing to D efenda nt’s friend’s h ome, Robm a Wi l liamson left with them . Defend ant reca lled that wh en the victim stoppe d at th e intersect ion of Raines and Sewanee, Williamson suddenl y shot the v ictim i n the head. Defendant st

ated he had no ide a of W illiamso n’s inte ntions to kill the v ictim and tha t William son later th reatene d to kill Defe ndant if he told anyo ne.

On cross-e xamina tion, Defe ndant adm itted to m any inc onsis tencie s within his statements. He did admit to a prior conv iction of theft on January 26, 1993 to which he pled guilty.

I. S UPPRESSION OF STATEMENTS

The party preva iling in th e trial co urt is entitl ed to the st rongest legitimate vi ew of the evidence adduced at the suppression heari ng as well as al l reasonabl e and legitimate inf

ere nces that ma y be d rawn from that eviden ce. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996) . So long as t he greater wei ght ofthe evidenc e supp orts the trial court’s findings, those findings sh all be uph eld. Id . at 23. In other wo rds, a trialcourt’s fi ndings of fact in a su ppressi on hearing wil l be upheld unl ess the evidence prepon derates otherwis e. Id . In ev aluating the correct ness of a tr ial court’s ruling on a pretri al motion to suppress, t he appellate court may consi der the proof adduced bot h at the suppression hearing and at trial. State v. Henning , 975 S.W .2d 290, 299 (Tenn. 199 8).-13- Followingthe suppression hearing, counselforthe Defendant conceded that Defendant admitted that as to th e seco nd statem ent, it was a freely given statem ent. The trial court then denied the rem ainder o f Defend ant’s moti on to suppress by written order on Novem b er 8, 1995. The t rial cour t found that

the state ment of October10, 1 994, w as tak en wh en De fenda nt was not a s uspe ct nor w as he in custody. The tr ial cou rt also h eld as to the January 1 1, 1995 statem ent, that “[t]here is ample evide nce that the D efendant kn owingly, intelligently, and vo luntarily chose not to exercise his ri ghts on the occasi on of his t hird statement. The police were not obligated to con tact his attorney und er these circum stances.”

Howeve r, the State has si nce conceded in bot h its bri ef and at or al argum ents before this court that unde r the auth ority of Edwards v. Ari zona , 451 U.S. 477, 484- 85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)and Minnick v. Mississi ppi , 498 U.S. 146, 111 S.Ct. 48 6, 112 L .Ed.2d 4 89 (199 0), the De fendan t was d epriv ed of his rig hts while giving his third statem ent of Jan uary 11, 1 995, pu rsuant t o the Fifth and Fourteenth Amendments of t he United States Constitut ion.

A. S TATEMENT OF O CTOBER 10, 1994

T he Defendan t does not make an argument in his br ief regar ding the t rial court’s refusal t

o suppress the f irst st atement of October

10, 1994. I n Miranda v. Arizona , 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 6 94 (1966), t he United States Supreme Court held t hat the Fif th and Fourteenth Amendments’ prohibit ion against compelled self-incri mination requi res police office rs, be f ore init iating questioni ng, to advise t he putativ e defendantof his rig ht to rem ain silen t and h is right to couns el. S pecifically, Miranda requires pol ice to i nform the person be ing-14-

questioned that (a) he has the rig ht to rem ain silent; (b) any statement made may be
u sed as eviden ce aga inst him; (c ) he has the right to th e prese nce of a n attorney ; and (d) if he can not a fford an a ttorney, on e will be ap pointed for him pr ior to question ing, if he so d esires. 38 4 U.S. a t 444, 86 S .Ct. at 161 2.

Howeve r, an officer’s obli gation to administer Mirandawarnings onl y attaches “where there has b een s uch a restrictio n on a perso n’s free dom as to re nder h im ‘in custo dy.’” Stans bury v. C alifornia , 511 U.S. 318 , 322, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994 ) ( citing Oregon v. Mathi ason , 429 U.S. 49 2, 495, 97 S.Ct. 711, 714, 50 L. Ed.2d714 ( 1977) ). “Cu stodia l interrogation” refers to “questioni ng initi ated by law enforcement officers after a person has been taken into custody or ot herwise deprived of his freedo m of ac tion in any s ignificant w ay.” Miranda , 384 U.S. at 444, 86 S.Ct. at 16 12. In the case sub judice , Defe ndan t cam e to the police station of his
own free wil l after

being requested by t he police to answer some questions regarding his p ersona l relationsh ip with the victim . Imme diately after g iving a state ment, Defendant left th e police station . Even if Defen dant d id con test this statem ent’s admission into evi dence, the law in T enne ssee is such that no Miranda warnin g is required during the initial investigation by p olice where the wit ness isnei the r a p ri me suspect nor in cus tody. State v. Underwood , 669 S.W.2d 700, 703- 04 (Tenn . Cr im. App. 1984 ).

B. S TATEMENT OF J ANUARY 9, 1995

Defendant argues his second statement of January 9, 1995, to the poli ce was erron eous ly a dmitte d in to evidence by the tri al court an d should have been suppressed. Defendant contends that counselwas not pr esent d uring the entire-15-

course of quest ioning and, therefor e, anystatement taken was in clear violat ion of Miranda v. Ariz ona , 384 U. S. at 436, 86 S.Ct . at 1602, a nd Edwards v. Ari zona , 451 U.S. at 4 77, 1 01 S.Ct. at 1 880. It i s signif icant th at foll owing the heari ng on the motion to suppress, counsel for Defendant did not

argue that t he second statement shou ld be suppre ssed as D efendant ha d “alre ady said t hat was a freely given statementon the reco rd.” Therefore, the trial cou rt did no t mak e a sp ecific conclusion on this seco nd statem ent, althou gh it did m ake factu al findings. In addition to arguing t he issue has been wai ved by the Defendant , the State argues thatsuch statem ent wa s given freely an d volun taril y by t he De fenda nt, in full unders tanding of his rights.

The vol unta rin ess test u nder the Te nness ee Co nst itution is more prote ctive of indivi du al rights th an the tes t under th e United States C onstitution
. State v. Stephenson , 878 S.W .2d 530 , 544 (T enn. 19 94). To eff ectiv ely waive his rights, defendantmust have personal aw areness o f both the nature of the ri ght and the
cons eque nces of aba ndon ing his rights. See Stephenson , 878 S.W.2d at 544-45. Additio nally , his statements cannot be the r esult of intimi dation, coercion or decep tion. Id
.
First, we note that t he Defendant has waiv ed this i ssue by submitt ing to th e trialcourt that s uch state ment w as volun tary following the hea ring on the motion to suppress. See Tenn. R. App. P. 36(a) . Defendant hi mself stated that hi s statement was freely and voluntarily given a nd was m ade in the pres ence of his attorn ey. Testimonyfrom his at torney demonstr

ated that he waspresent when thestatement was taken and si gned the state ment as a witness. In any event , pursuant t o the evidence presented documenti ng that Defendant was both presented with and-16-

waived his Miranda rights, we cannot conclude that the second statement given by the Defendant

should have been suppressed. The greater weight of the evi dence suppo rts the trial cour t’s findings th at Defe ndant w as read and then si gned an acknowledgmentof right s form prior

to givi ng his statement . Furth ermore, D efe ndan t’s attorney

was called when Defendant requested prior to the taki ng of that
same statement. Both the evidence at the hearing on the motion to suppress and at trial demonst rate that the preponderance of the evi dence does not fal l in t he Defen dant’s favo r for supp ression. T his issue is without m erit.

C. S TATEMENT OF J ANUARY 11, 1995
Finally, Defendant contends that his thi rd st at ement made to the poli ce on January 11, 1995, wastaken and admitted into evi dence in violation of Edwards v. Arizona , 451 U.S. at 477, 101 S.Ct. at 1880, and Minnick v. Mississi ppi , 498 U.S. at 146, 111 S.Ct. at

486. In Minnick v. Mississi ppi , our Suprem e Court held th at a fair reading of Edwards v. Ari zona and su bsequ ent case s dem onstrate that “ we have interpr eted the rule t

o bar police-init iated in terrogat ion unless t he accused has counsel with him at the time of questioning.” Minnick , 498 U.S. at 153, 111 S.Ct. at 491. When counsel is req uest ed, inter rogation must cease, and off icial s may not reinitiate interroga tion withou t coun sel present , whether or not the accused has consulted with his atto rney. Id . The State conceded both in i ts brief and at oral argum ent befo re this cou rt that Minnickcontro ls this case and that Defendant was deprived of h i s rights under the Fif th and Fourteent h Amendments of the United States Constitut ion regardi ng the thi rd statement on January 11, 199 5. Wh ile there is somecontradic

tion in the testi mony of vari ous witnesses as to whether Defendant requested couns el on Jan uary 11, 1 995, any in consiste ncies are irrelevant.-17-

Defendant invoked hi s right t o counsel on January 9, 1995, and t he p ol ice were, therefor e, prohibited from rein itiating their inter rogation of him w ith o ut counsel presen t on Janu ary 11, 19 95. Minnick , 498 U.S . at 153.
Although reversalof this convic tion i s requi red on th e suppress ion is sue, we will also address t he other is sues raised by the Defendant . The State, concedi ng the trialcourt’s error i n denying theDefe ndan t’s mo tion to s uppre ss his third st atement to the poli ce, fil ed a motion to r ev erse th e tria l court’s judgm ent an d rem and th is
case for a newtrial prior to filing its brie f with this cou rt. Our cou rt, however, deni ed the motion fi nding tha t “this and other issu es raised by the [Defendant] in hi s brief shou ld receive t horough conside rat ion on appeal, as they may resur face upon remand .”

II. A DMISSION OF PRI OR THEFT CONVIC TION

Defendant argues that the tri al court erred in all owing the State to ques tio n him regar di ng his prio r theft convic tion. W hile the Sta te agree s that the th eft convicti on was not relevant to the murd er of the victim, it c onten ds it wa s certa inly relevant to the issue of the De fendan t’s credibility.

Tennessee Rule o f Evide nce 6 09(a) (3) allow s the S tate to im peach a n accused if prior no tic e ha s been given and i f the probat ive val ue of the convi ction outwe ig hs its unfair pr ejudici al effec

t on substant ive issu es. Subdivi sion (a)(2) of Rule 609 further states that the crime m ust either be a felon y or must have involved “dishon esty or false sta temen t.” It has long b een es tablished that theft crimes involve dishone sty. See State v. Butler , 626 S.W .2d 6, 11 (Te nn. 1981).-18-

Furtherm ore, the o ffense of th eft is “highly pro bative” of cre dibility. State v. Baker , 956 S .W.2 d 8, 15 (Tenn . Cr im. App. 1997) (ci tations omitted). The State fol lowed procedural rules, giving not ice to t he Defendant of i ts inten t to impeach him wit h the theft convicti on. Any prej udicialeffect was outweighed by the probative value o f this theft convicti on upon the issue of D efenda nt’s credib ility. This issu e is withou t merit.

III. A DMISSION OF PHOT OGRAPHS

Defendant contends that the trial court erred in admit ting certain photographs of the vict im. Specifi cally, Defendant object s to the admissi on of Exhibi ts 19, 20, 21, 22 and 23. In determining the admissibil ity of photographs, t he court must first determine thatthe evidence is relev ant to the i ssues at tr ial and t hen decide whether the probative value of t he evidence i s substanti ally out weighed by the dange r of unfair prejudice
. State v. Banks , 564 S.W .2d 947 , 949-51 (Tenn
. 1978); Tenn. R. Evid. 402, 40 3. The a dmiss ibility of photographs falls within t he sound discret ion of the trialcourt, and t his court will not inter

fere wit h the tri al cou rt’s exercise of discreti on absen t a clear ab use of tha t discretion
. State v. Braden , 867 S.W.2d 750, 758 (T enn. C rim. App . 1993); Banks , 564 S.W.2d at 949.

We first observe that

the State correctly po ints out with in its brief t hat counsel fortheDef enda nt s pecifi cal ly agreed w it h th e adm i ssion of Exhibits 19 and 20. Therefore, this i ssue is waived as to the admiss ion of the se p hotogra phs. See Tenn. R. App. P. 36(a) ; Teag ue v. State , 772 S.W.2d 915, 926 (Tenn. Cr im. App. 1988); perm . to appeal denied , id . (Tenn. 1989); State v. Killebr ew , 760 S.W.2d 228, 235 (Ten n. C ri m. App.), perm . to appeal denied , id . (Tenn . 1988). H oweve r, as to Exhibits 2 1, 22 an d 23, the D efenda nt did obje ct.-19- Exhib it 21 depicts t he crime scene, showing that the victim’s pants pock et is turned insi de out as if he had be en robb ed. This certainly wa s proba tive as to the State ’s proof to demonst rate that the Defendant

killed an d robb ed the victim. E xhibit 22 is a closeup of t he crime scene it self, on ly showing a portion of the victim’s body. Howeve r, the closeup photogr aph does depict t he pants pocket of the vict im being turned inside out an d that th e victim ’s shirt and jacket had been pul led over his head
as accord ing to testim ony of the officers on the scen e. Finally, E xhibit 23 is simp ly
a p hotogra ph from a different a ngle of the upper p ortion of the victim’s bo dy. It shows the victim’s e xposed midriff, with his shirt and ja cket pulle d over his head.

Exhibits 21 and 22 are probative to theState’s case-in-chi ef. Both depi ct the cri me scene and vari ous personal i tems of the vi ctim which were ident i fied by h is family. Also, the scene depicts t he pants pocket bei ng turned ins ide out to support the State’s t heory of r

obbery and the shi rt and jack et pulle d overhis head which was testif ied to by theDefendant in hi s second statement. The trialcourt w as co rrect in
r uling tha t the probat ive val ue of these photographs outweighs any potenti al for unfair prejudice. The relevancy of Exh ibit 23 is questionabl e, in l ight of t he fact th at otherphot

ographs depi ct t he s ame scene from a dif ferent angle. H oweve r, we note thatnone of these photographs depict a gruesome scene as the wou nd s to the victim are covered by

his shir t and jacket , and only bl ood is vis ible. Therefore, the re was no prejudice in the adm ission of E xhibit 23. T his issue is without m erit.

IV. S UFFICIENCY OF THE EVIDENCE-20- Defendant argues that the evidence was insuf ficient to support a guilty v erdict forfi rst degr ee mu r der. At t he time of t his offe nse, fir st degree murder was a n “intentio nal, premeditated an d deliberate kill ing of another. ” Tenn. Code Ann. § 39- 13-202 (Repe aled 19 95). A de liberate act is “one pe rformed with a coo l purpose .” Tenn. C ode A nn. § 3 9-13- 201(b )(1) (R epea led 19 95). A prem editate d act is “on e done after t he exercise of reflect ion and judgment. ” Tenn. Code Ann. § 39-13- 201(b)(2) (Re pealed 199 5).

When an accused challenges the suffici ency of the convi cting evi dence, the standard is whether, af ter revi ewing the evi dence in the l ight most favorable to the prosecution , any rationa l trier of fac t could have found the es sential elements of t he crime beyond areason able do ubt. Jack son v. V irginia , 443 U. S. 307, 319 (19 79). On appeal, t he State is e ntitl ed to the st rongest legitimate vi ew of the evidence and all inference s therefro m. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict

of guil t removes the presumption of innocence and rep laces it with
a presum ption of gu ilt, the accuse d has the bu rden in this court of il lustrat ing why the evidence is i nsufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle , 639 S.W.2d 913, 91 4 (T enn. 19 82); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning t he credibi lity of the wit nesses, the wei ght and valu e to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by t he trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id
. (Te nn. 1987). N or may this cou rt reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t-21-

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W.2d at 476.

The victim was shot twice in the hea d, with medical evi dence demonstrati ng thateither sho t was fatal. In h is statem ents to the police of Janua ry 9 and Janu ary 11, 1995, the D efend ant ad mitted luring th e victim to pick h im up and th en driv in g him to a remote a rea so that the victim could be killed. In his statem ent of Janua ry 11, 1995, the Defendant admitted to shooti ng and killing t he vict im, both with premeditati on and deliber ation. The Defendant state d tha t he “was under a lot of stres s and [he fe lt] t hat all [he had] done for him, [t he victi m] should have owed [Defen dant] some thing.” Wh en as ked if h e pag ed the victim o n September 27, 1994, at appro ximate ly 5:15 p.m ., with the knowledge that the vict im would be lur ed to the Box town area and had the i ntention of kill ing him, t he Defendant respon de d aff ir ma t ively. In the l ight most favorable to the State, this evi dence was suffi cient where by a rati onal tri er of fact could have concl uded beyond a reasonabl e doubt thatDefendant intentiona lly kill ed the victim wit h both premeditation and del iberati on.

We note th at all evidence admit ted at the t rial, even if admitted errone ously,
can be considered when addressing adefendant’s challenge to the suff iciency of the evidence to sustain the conv iction. See Lockhart v. Nelson , 488 U. S. 33, 109 S.C t. 285, 102 L.E d.2d 26 5 (1988 ); State v. Longstreet , 619 S.W.2d 97 , 100-01 (Tenn. 1981).

V. S UFFICIENCY OF EVIDENCE TO S UPPORT AGGRAVAT ING CIRCUMSTANCE-22- Defendant argues that t he evide nce was insuff icient to support t he aggravating circumstance of murder duri ng the perpetrat ion of a robb ery. I n order to impose a sentence o f life without parole, the jury has to fi nd that the State proved beyond a reasonable doubt one of the aggravat ing factors found i n Tennessee Code Annotated section 3 9-13-20 4(i). In the Defendant’s second statement of January 9, 1995, he admitted t hat the vi ctim was robbed. The victi m’s mothertestified that s he had given the victim $10 .00 earlier th at day. The photographs depic ted the victim’s personal i tems s tr ewn aro und his b ody and his pants pocke t turned ins ide out. Based upon this ev idence and Defendant ’s own admission, the jury r easo nably determined that the murder was committed whil e the Defendant had a substan tial role in com mitting a ro bbery. T his issue is without m erit.

VI. ADMISSION OF EVIDENCE OF OTHER CRIMES

Defendant contends that the State was err

oneously all owed to intr oduce proof of other cri mes by virt ue of his statements to t he police. Rule 404(b) of th e Tenness ee Rules of Evidence st ates that “[e]vi dence of other crimes, wrongs, or acts is not admiss ible to prove the ch aracte r of a pe rson in order to show action in conform ity with the chara cter trait . It may, however, be admissi ble for ot her purpos es.” The “other cr imes” to whi ch Defendantis referring were includ ed in h is statem ents to the police i n which Defen dant i ndica ted the re was a warr ant for h is arrest for cashi ng one of the vi ctim’s check s and that he had been invol ved in a robbery
. Specifically, the statement ref erring to cashing the v ictim’ s check was as follows: Question: Wh y would Mr. Du rand com e with you today?-23- Answer: My brother’ s request. He had found out that I had supp osed ly cashed one of Gregory’s checks, a nd they a [si c] warrant for my arrest for the check. Question: Have you cashed a check belonging to Gregory Harris? Answer: No, sir. Question: Is there any other reason that you b rought a n attorne y with you today? Answer: My brother recommended me to the attorney. My br other contacted the attorney about the check. Then I told hi m about the talk in the street that I had killed G regory.

The othertwo statements to which Defendant

refers i nclude his admissio n that he paged the victim to ask for a ride to so meone ’s home to p ick up mon ey fro m a robbery
.
For each o bjection th e Defe ndant ra ised, the tr i al court complied wit h the requirem ents of Rule 404(b) . The court helda hearing outside the presence of the jury in which i t deter mined th e material issues and then determined that such evidence need not be excl uded according to the provi sions of Rule 404(b)(1) ,(2) and (3). Rule 404(b) al lows such evi dence of “other crimes” to b e admitted w hen it is relevant to a litigated iss ue, such as identity, inte nt, or rebu tta l of acci den t or mistake, and its probative value is not outweighed by the danger of unfair pr

ejudice. See State v. Parton , 694 S.W .2d 299 , 303 (T enn. 19 85); State v
. Hooten , 735 S.W .2d 823, 824 (Tenn. Crim . App. 1987 ).
Although any stat ement t he De fend ant made regarding a warrant for his ar rest forcash in g one of the victim’s check s was not releva nt according to R ule 404(b), neither was it unfairly prejudicial . There was never any co rrobo rating ev idence of-24-

this warrant, and the Defendant hi mself immediately denied cashi ng t he victim ’s check. Pursuant to Rul e 103(a) of the Tennessee Rules of Evidence, the admission
or exclus ion of e videnc e is no t a bas is for err or unless t he rulingaffects a substanti al right of the accused. We find t hat even if the tri al court did err i n refusing to redact the portion of the Defendant’s statement referr ing to this warrant, no substanti al right of the Defen dant was affec ted thereby . In li ght of the convincing evidence of Defe ndan t’s guilt, an y error in the ad miss io n of t his eviden ce was harmle ss. See S tate v. Shell ey , 628 S.W.2d 436, 438 (Tenn. Cr im. App. 1981); Ten n. R. Ap p. P
. 36(b).

The remaining portions of Defendant’s statement to which Defen dant ob jects
as admitted in error we re, in fact, ad missible as releva nt to the issue of intent. The Defen dant state d that, “I had him [v ict im] come to take me to pi ck up some money from a robbe ry.” W hen a sked if he be eped the victim know ing tha t he wo uld lure him to a rem ote are a with th e inten tion of k illin g him, the De fenda nt adm itted tha t this
was his intent. Clear ly, t his evidence went direct ly to t he State’s t heory that the Defen dant, with premeditati on and deliber ation, pagedthe vict im to pick hi m up and then directed h im to driv e to a remote area

where he shot and killed the victim. T his issue is w ithout me rit.

CONCLUSION

Defe ndan t’s third statem ent on Ja nuary 11 , 1995, w as admitted i n error at trial. The statement of J anuary 11, 1995 i s suppressed and is i nadmissible at-25-

Def enda nt’s new trial. Defendant’s conviction i s reversed, and this casei s reman ded to the trial court for a n ew trial.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOHN EVERET T WILLIAMS, Judge