# FILED
January 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9611- CC-00488 Appellee, ) ) Montgomery County V. ) ) Honorable John H. Gasaway, Judge MARCUS A. VELEZ, ) ) (First Degree Murder) Appellant. ) )

FOR THE APPE LLANT: FOR THE APPELLEE: Michael R. Jones John Knox Walkup District Public Defender Attorney General & Repor ter 110 Sixth Avenue, West Springfield, TN 37172 Daryl J. Brand Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 John Wesley Carney, Jr. District Attorney General Steven L. Garrett Helen O. Young Assistant District A

ttorneys General 204 Franklin Street, Suite 200 Clarksville, TN 37

040

OPINION FILED: _______________________ AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Marcus A. Velez , was convicted by a jury of first degree murder. Montgomery Co unty Circuit Court Judge John H. Gasaway sentenced the appellant to life in pris on. On appeal, the appellant pres ents five issues for our review:

1. Whether the evidence of premeditation and deliberation is sufficient to support the jury ’s verdict. 2. Whether the trial court erred in admitti ng photographs of the victim’s b ody. 3. Whether the judge improperly instru cted the jury on the punishment for first degree murder. 4. Whether the trial court erred in admitt ing the appellant’s statements into evidence. 5. Whether the trial court erred in permit ting the state to questi on witness Michael Bow

ers about his plea agreement with the state. After carefully reviewing the record before us, we affirm the appellant’s conviction.
On Saturday morning, March 4, 1995, the appellant, seventeen-year-old Marcus Velez; six

teen-year-old Mike B

owers; a fourteen-year -old friend of the appellant whom we will refer to as “the minor;” and the victim, eighteen year-old Kenneth Battisti, drove to the Bowers’ family farm out side of Clarksville . Upon arrival, the appellant

shot the victim twi ce in the back. Both Bower s and appellant were charged . Bowers entered into a plea agreement with the s tate. The appellant went to trial for first degree murder.

The evidence revealed that Bowers and the minor w ere good friends of the appellant. The appellant had been a f riend of the victim. All the boys were involved in a martia l arts club at a local r ecreation center. The appellant and the victim had a falling out of some sort. The victim made disparaging remarks about the appellant’s martial arts ability and cri ticized the appellant for the way-3- he treated his mother. The appellant told Bowers and the minor that he was going to kill the v

ictim and bury the body.The minor testified that the appell ant made up a story to lure the v ictim to the Bowers’ far m and kill him. The appellant told the victim that he could make some money for helping out at th e Bowers’ farm Saturda y morning.
On Friday, March 3, the appellant and the minor went to Bowers’ house and took a rifle and ammunition to tar get practice. Bower

s later joined them. The minor testified that whil e shooting at some boards, the appellant stated that the bullets would go straight through the victim just as th ey went straight throu gh the wood. Later that day, the appellant and the minor went to Buddy Newman’s house where the appellant st ated that he was tired of the v ictim’s “bullshit” and that he, the appellant, was going to take care of it. The appellant to ld Bowers and the minor that the victi m did not deserve to liv e.
The appellant took the minor home and Bow ers spent the night wi

th the appellant. The next morning,the appellant and Bowers pi cked up the minor and the three went to the recr eation center for a scheduled spar ring match. When no one showed, the appellant drov e to Newman’s house looki ng for the victim. Newman said that the vi ctim was at Josh Carr ier’s house. The appellant w ent to Josh’s house and told Josh and J amie Donegan that he needed the v ictim to work on the farm.
The appellant, Bowers, the minor, and the victim drove to the Bowers’ farm in the appellant’s car. The appellant had Bowers’ r ifle and ammunition. When they arrived, the appellant told the minor and Bowers to g et out of the car. The appellant and the victim dr ove several hundred y

ards into the farm property and got out of the car. The appellant shot the rifle at a tree. Up on hearing the shot, Bowers and the minor began running toward the appellant. When they saw the victim standing, they slowed to a walk. The appellant then shot the victim in-4- the back. Bowers and the minor ran to the scene where they found the victim wheezing and groa ning on the ground. The minor testified that the appellant then asked, “Do you w

ant me to shoot him one more time for g ood luck?” The appellant shot the victim again in the back.
The appellant laid some brush ov er the victim, and the thr ee went to the appellant’s grandfather’s ho use to get tools to bury the victim. They retu rned to the farm and buried the victi m in a shallow grav e. Some of the residents in an adjoining field watched the boys through binocul ars. The boys returned the tools, the rifle, and the ammunitio n. Later, the appellant told hi s mother and Josh Carrier that he had ta ken the victim to the air port because the victim had personal problems and wanted to run away from home.
In his first issue, the appel lant argues that the evi dence of premeditation and deliberation is insufficient to support the jury’ s verdict. When an appellant challenges the sufficiency of the evidence, this Court must dete rmine whether, after viewing the ev

idence in a light most fav orable to the prosecution, any rational trier of fact could ha ve found the essential elements of a c rime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); Tenn. R. App . P. 13(e); State v. Duncan , 698 S.W.2d 63 (Tenn. 1985). The weight and cr edibility of a witness’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542 (Tenn. 1984); Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978). On appeal, the s tate is entitled to both the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). Moreover, guilty

verdicts remove the presumption of innocence, enjoyed by defendants at trial, and replace i t with a presumption of gui lt. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, car ry the burden of overcoming a presumption of guilt when appealing jury convictions

. Id.-5- A jury found the appellant g uilty of murder in the firs t degree, which at that time was defined as “[a]n int entional, premeditated and deliber ate killing of another.” Tenn. Code Ann. § 39-13-202 (Supp. 1 994). A premeditated act is “one done after the exercise of reflection and judgment.” Tenn. C ode Ann. § 39- 13-201(b)(2) (1991). A deliberate act is “one per formed with a cool purpose.” Tenn. Code Ann. § 39-13-201(b)(1) . Several factors wh ich can support the findings of premeditation and deli beration include the use of a deadly weapon on an unarmed victim, declara tions of a defendant of an intent to kill, evidence of the procurement of a weapon, prepar ations for the concealment of the cri me, and calmness immediately after the killing. State v. Bland , No. 02-S01-9603-CR00032 (Tennessee Supreme Court at Jackson, f iled December 1, 1997).
The appellant cites to eviden ce that the shooting occurr ed during a state of passion which, he argu es, proves the lack of premedi tation and deliberation. Bowers testified that the appe llant and the victim w ere extremely angr

y and that they may have been fighti ng. Bowers also tes tified that the appellant was acting very weird and unlike his normal self. The appellant cites to his own statement in which he described himself as very angry and described the shooting as “just then, I shot him.”
The evidence is sufficient to sup port the jury verdi ct of first degree murder. The evidence of premeditation and del iberate is substantial. The appellant made statements before the murder that he w as going to kill the

victim. He devis

ed a plan to lure the victi m to the Bowers’ farm. He w ent target shooting. H e shot an unarmed victim twice in the back. He calmly buried the victim in a businesslike fashion and then fabricated a story to cover up the crime. Statements of intent to kill are evidence of premeditation as are statements such as “I am going to bury the body where no one will find it” and “Do you want me to shoot him one more time for good luck?”-6- The appellant next argues th at the trial court erred in admitting photographs of the victim’s body. He contends that the only issue on which these photos could have been pr obative was whether

the killing was premeditated and deliberate. The appel lant argues that the prejudi cial effect of the photos exceeded their pr obative value because othe r evidence established that the appellant shot the vi ctim twice in the back.Over the objection of the appellant, the trial court admitted two photographs of the victim through the testimony of the medical exami ner, Dr. Charles Har lan. The trial court rul ed that the photos were probativ e and corroborative of Dr. Harlan’s testimony that the victim died of gunshot w ounds. The photographs show the bullet entry wounds to the victim’s back and the bullet exit wounds to the victim’s chest.
Whether to admit photographs is withi n the sound discretion of the tri al court and will not be r

eversed on appeal absent a cl ear showing of an abuse of discretion. State v. McCary , 922 S.W.2d 511, 515 (Tenn. 1996); State v. Evans , 838 S.W.2d 185, 194 (Tenn. 1992); State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). To be admissible, the photog raph must be relevant and pr obative to some issue at trial. Tenn. R . Evid. 401; McCary , 922 S.W.2d at 515. Even if relevant, the photograph may be excluded if its probative value is substantially outweighed by the dang er of unfair prejudice. Tenn R. Ev id. 403; McCary , 922 S.W.2d at 515.

The manner in which the vi ctim was killed is relevant to the issues of premeditation and deliberation. Banks , 564 S.W.2d at 949-50. The appellant contended at trial that the ki lling was of a lesser degree than murder. Photographs showing that the victim was s hot twice in the back ar e relevant and probative evidence of premedi tation and deliberation. Fur ther, as asserted by the state and found by the trial court, the photos are illustrative aids to Dr. Harlan’s testimony. The pr obative value of the photogr aphs, taking into consideration other evi dence that the victim w as shot twice in the back, is not-7- substantially outwei ghed by any prejudic ial effect that they may hav e had on the jury. The photographs ar e not gruesome or shocking as suggested by the appellant. The body was not in an altered condition. The pho tographs show only the victim’s back and chest. The photos do not show the victim’s head and show very little, if any, blood around the victim’s wounds. We find no reversible error regarding the trial court’s decis ion to admit the photographs i nto evidence.
The appellant next argues th at the judge improperly instructed the jury o n the punishment for first degree murder. The app ellant argues that the trial court should h ave ins

tructed the jur y that if the appe llant w as sente nced to l ife imprisonment that he would s erve a minimum of twenty- five years in pris

on before being eligible for pa role consideration. Tennessee Code Annotated §§ 39-13-204(e)(2) & -207(a) (Supp. 1995) provide in relevant part that in a first degree murder c

ase in w hich the state seeks the

punishm ent of dea

th or life without the possibility of parole, the trial c ourt must instruct the jur y that a defendant who is sentenced to life imprisonme nt shall not be eligible for parole until the defendant has served tw enty-five full calendar years of such sentence. In the case at bar, the state di d not file a notice of intent to seek the death penalty or life witho ut the possibility of par ole. Therefore, the court was not required under these sections to so instruct the jury. When no such notice is filed and the defendant is found guilty of first degree murder, the cour t imposes the sentence of life imprisonment. Tenn. C ode Ann. § 39-13-208(c) (Supp. 1995).
The appellant also cites Tenness ee Code Annotated § 40-35-201(b)( 1) (Supp. 1995) which prov ides: “[i]n all contested

criminal cases, exc

ept for capital crimes which are g overned by the procedur es contained in 39-13-204 and 39- 13- 205, upon the motion of either party , filed with the court pr ior to the selection of the jury, the court shal l charge the possible penal ties for the offense charged and all lesser included offenses.” As the state points out, the appellant never filed a-8- motion requesting the court to instruct the jury on applicable penalties for first degree murder and all less er included offenses. Therefore, the tri al court was not required by this

section to instruct the j ury. This issue is w ithout merit.

The trial court’s instr

uction to the jury on the applicable penalties benefits the appellant. The court instr ucted the jury that the puni shment for first degree murder was life impriso nment; for second degree murder, not less than fifteen years and not more than sixty years incarceration; and for voluntary manslaughter, not less than three years and not more than f ifteen years incarceration. In State v. Cook , 816 S.W.2d 322 (Tenn . 1991), our Supreme Court observed that the jury’s knowledge of how lengthy a sentence generally inures to the benefit of the defendant. Her e, the jury was most likely left with the impression that the defendant woul d never be eligible for parole if convicted of first degree murder. It s eems to this Court that the ju ry would have con sidered the sentence for first degree mur der, life imprisonment, as a much harsher sentence than if the judge had informed the jury that the appellant would be eligible for parole in twenty-five years.
The appellant next argues that the trial court erred in admitting his statements into evidence. The appellant made statements at the time of his arrest and gave a v

ideotaped statement approximately one hour later. The appellant filed a motion to suppres s his statements as invol untary because he was not informed of his constit utional rights. At the suppression hearing, the t rial court found that the appellant’s stateme nts at the time of his arrest were spontaneous and not the result of que stioning by the polic

e. The court further found that the appellant was fully advised of his constituti onal rights before giv ing the videotaped statement and that he made a knowing and intell igent waiver of his rights.
A trial judge’s factual findings on a motion to suppress must be affirmed-9- on appeal unless the evidence preponderates otherwise. State v. Tuttle , 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995). The credibi lity of witnesses i s for the judge as trier of fact. Id. The evidence at the suppress ion hearing consisted primarily of the testimony of the arresting officer Detec tive Cliff Smith and the appellant. Detective Smith testified that he arrested the appellant for murder at approximately 9 p.m. on Sund ay night. Detectiv e Smith testified that he advis ed the appellant that he had the rig ht to remain silent, that he had the right to an attorney, and that if he could no t afford an attorney that one woul d be appointed to him. Detective Smith fail ed to inform the appellant that any thing that the appellant said could be used ag ainst him at trial. Detec tive Smith testified that thereaf ter the ap pellant stated th at he had “the gun. ” Smith as ked, “You have the gun?” The appellant replied, “No, Joey has the gun.” W hen the appellant’s roommate started to call Joey , the appellant told her to sto p calling because Joey did not have the gun. The appellant then said that he did no t want to talk anymore. Detect ive Smith testif ied that at tha t point he stopp ed all questionin g. Several moments later, the appellant told Detective Smith, “I want to talk to you.” Detective Smith thought that the appellant meant that he w anted to talk to the detective out of the presence of the other officers so he moved the appel lant down the hallway. Detective Smith told the appellant that he would do w hat he could do to help him. The appellant said that he shot the vict im because the victim had said certai n things about the appellant. The appellant testified that Detective Smith read him h is rights and then immediat ely asked where is

the gun. The appellant testified that Detective Smith then said,“We can help you, let us help you.” The appell ant testified that it was on ly then that he asked the Detective Smith if he could talk to him. Shortly thereafter the appellant was taken to the criminal justi ce center where he w as read his rights and w here he signed the standard admonition and waiver form. The appell ant stated on the videotape that he understood hi s rights and that he wished to waive them. At approximately 9:48 p.m. the appellant gave a vi deotaped statement.-10- In Miranda v. Arizo na , 384 U.S. 436 (1966), the

United Stat

es Supreme Court formulated warnings that must be given to a s uspect before the commencement of custodial interrog ation. Miranda requires law enforc

ement officers to warn suspects that they have the rig ht to remain silent; that any thing said can and will be us ed against them in court; that they have the right

to consult with a law

yer and to have the law yer with them during

interrogation; and that if they cannot afford one, then o ne will be appointed. The need for Miranda warnings, howev

er, is limited to custodi al interrogations. Any statement given voluntarily w

ithout any compelling i nfluences is admissible in ev idence whether or not Miranda

warnings are gi

ven first. State v. B rown , 664 S.W.2d 318, 320 (Tenn. Crim. App. 1984). The fundamental i mport of the privilege w hile an individual is in custody is not whether he or she is allowed to talk to the police without the benefit of warni ngs and counsel, but wheth er he or she can be interrogated. Miranda , 384 U.S. at 478. Volunteered statements of any kind are not barred by the Fifth Amendment. Id. ; see also State v. Goodman , No. 01C01-9512-CC-00423 (Tenn. Crim. App. at Nashville, filed March 13, 199 7); State v. Chambless , 682 S.W.2d 227 (Tenn. Crim. App. 1984);

We find no merit to this issue. The trial cou rt’s duty was to as sess the credibility of the appell ant and Detective Smith at the suppression hearing. The judge accredited the testi mony of Smith. The appellant’s state ments were not elicited through cu stodial i nterroga tion but rather were voluntary. Thus, De tective Smith’s failure to advise the appellant at the time of th e arrest that anything said could be used against him in court was not fatal to the admi ssion of the statements because the statements w ere voluntary. Fur

thermore, the appellant was fully advised of his constitutional rig hts before giving his videotaped statement. The appellant stated on the v ideo that he was informed of and understood his constitutional rights. The appellant signed a waiver of rights form voluntarily w

aiving his rig hts before he was interrogated by Detective Smith.-11- Finally, the appellant argues that the trial co urt erred in permitting the state to question witness Michael Bowers about his plea agreement. Bowers agreed to testify truthfull y in exchange for the s tate’s recommendation that the court accept his plea of gui lty to facilitation of firs t degree murder. The appellant argued in the trial cour

t that this testimony w

as prejudicial because it suggested a predetermination of first degr ee murder. The appellant argued that the testimony violated the jury’s duty to deter mine the degree of murder committed. The trial court shared the appel lant’s concern but held that the terms of the agreement were admissibl e because the plea agreement w as not an adjudication but rather a sug gestion to the court. At t rial, the state elicite d testimony that Bowers had been charged with first degree murder and that, in exchange for his truthful te stimony, the state woul d allow him to plead gui lty to facilitation of first degree mur der. The court quickly

corrected the state, say ing that the plea agreement was a recommendation to the court. The st ate further clarified this for the jury saying that the state had agreed to the plea agreement, subject to the court’s appr oval. Bowers’ ag reement with the state w as relevant to the issue of Bowers’ credibility. The risk of unfair prejudice to the appellant did not substantially outweigh the probative value of Bowers’ testimony. This issue is without merit.

CONCLUSION
After ca reful co nsiderat ion of th e issues p resente d by the ap pellant , we affirm his conviction of first degree murder.

_____________________________ PAUL G. SUMMERS, Ju dge

CONCUR:-12- ______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ WILLIA M M. BARKER, Judge