# FILED

Au gust 15, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JUNE 1997 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A . No. 02C01- 9611-CR-00428 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. BERN IE WEINMA N, ) JUDGE JOHNNY R . GOODE, ) ) (Voluntary Manslaughter) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : EDWA RD WITT CH AN DLER JOHN KNOX WALKUP 2025 Mt. Mori ah Rd., Ste. A- 100 Attorney Gen eral & Repor ter Memphis, Tennessee 38115 PE TE R M . C OU GH LAN Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, Tennessee 37243- 0493 WILLIAM L. GIBBONS Distric t Attorney General PAT IE NC E B RAN HAM Assistant D istrict A

ttorney Gener

al Criminal J ustice Complex 201 Poplar, Ste. 301 Memphis, Tennessee 38103

OPINION FIL ED: _________________

AF FIRMED

JOE G. RI LEY, JUDGE OPINION2 The defendant, Johnny R . Goode, appeals as of right a j ury conv iction of voluntary

manslaughter. He was sentenced to four ( 4) years at the Shelby

County Correction al Center and fin ed $10,000. He presents three i ssues for our review: 1) whether the trial cour

t correctl y refused to s uppress the defendant’ s statement; 2) whether the evidence i s sufficient to sustain the vol untary mansl aughter conv iction; and 3) whethe r the trial court proper ly denied t he defendant probation. The judgment of the trial court is AFFIRMED.

FACTS
On June 10, 1995, the defendant, an admitted “c rack cocain e” addict, sh ot and killed J erome “Bud” Walker. Walker was a contact between the defendant and various d rug dealer

s. On the evening of the shooti ng, Walker flagged the defendant down and asked if he wanted to buy any “crack.” Displeased with his last purchase from Walker, the defendant refused. Walker then sugge sted they dr ive to a di fferent location w here the defendant coul d buy better “crack.”Walker ultimately l ed the defendant to “Rooney ,” another dr ug supplier , from whom the defendant purchased $100 worth of “ crack cocai ne.” After the tr ansaction, Walker asked for a r ide home, and the defendant agree d. As the defendant drove into Walker’s parking lot, the defendant al leged that Walker threatened him wit h a knife and demanded the “ crack cocai ne.” The defendant never actually saw a knife, and a set of keys was the only item found in Walker’s hands. The defendant alleg ed that Walker lurched at hi m, and defendant shot Walker in the neck. Walker died of the bul let wound a short time lat er. The defendant went home and did not call the police. The ne xt morning he received several calls from indi viduals c laiming to be “Kenny,” a drug deale r and friend of Walker’s. The caller insisted that

the defendant go to a car wash to meet with him. The defendant did not recognize t he voice as Kenny’s and suspected he was being set up to be ki lled for shooti ng Walker. The defendant armed himsel f with3

two semi- automatic wea pons and left for the c ar wash. Before leavi ng, he wr ote several n otes explai ning that the shooting of Walker was i n self-defense and if he
werefound dea d, it w

as Kenn y and his fr iends who k ille d him. W hen the defen dant arrived at the car wash, he was approached by Captain Michael Hou ston and Serge ant Jim Nicho ls of the Memphis Police Depar tment. They had recei ved a tip th at the defendant had kil led Walker. After asking the defendant his name, the off icers noticed a bulge in the defen dant’s shirt which appeared to be a g un. At this poi nt, the two officers pulled the ir own weapons. As they took two guns from the defe ndant, Captain Houston asked the defend ant which gun he used to k ill Walker. The defendant repli ed he used the small er one. The officers arrest ed the defendant and placed him in the sq uad car. As Sg t. Nichols was interv iewing witness es on the street , the defendant told C apt. Houston that he had not been read his rig hts. Capt. H ouston stated he was not going to be questioned yet; however, he informed the defendant of his rights. Capt. Houston told the defendant again th at he was not going to be questioned at that time. As they waite d in the c ar, the d efen dant st ated th at he want ed the o ffic er to go to his house and collect a shel l casing and the notes w hich he had w ritten descr ibing the shooting. The defendant signed a consent to search form. The officers went to his house, col lected the notes and shell casi ng, then retur ned to the polic e station where the defendant was again explained his rights. The defendant sub sequently gave a written statement admitting to the shoot ing of W alker. Although charged wit h second degree murder, the defendant was conv icted by the jur

y of the lesse r offense of voluntar y manslaug hter.

MOTION TOSUPPRESS

The defen dant argues that the trial court erroneou sly refused to suppress his4

statements and conten ds they were taken duri ng a custodi al interrog ation before he was adv ised of his cons titutional r ights. H e contends that he w as “in cust ody” w hen stopped and initi ally q uestioned by the police officers and that subseq uent statements and ev idence flowi ng therefrom aretainted as “fru it of the poisonous tree.” I. Custodial Interrogation

Statements of an accused person “stemmi ng from custodia l interrog ation” cannot be introdu ced as evi dence unless cer tain warn ings are g iven to pr otect a person’s pri vilegeagainst sel f-incriminati on. Miranda v . Arizona , 384 U.S. 436, 444 , 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 ( 1966). The Miranda warnings are required only in situations of “custodial interrogation.” State v. Co oper , 912 S.W.2d 756, 759 (Tenn. Cr im. App. 1995). “Custodial interrogat ion” is defined as “questioni ng initiat ed by law enforcement officers after a person has been t aken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda , 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; State v. Smit h , 868 S.W.2d 561, 570 (Tenn. 1993); Cooper , 912 S.W.2d at 759. In State v. Ander

son , our Supreme Co urt held that t he applicable standard to determine wh ether an indiv idual is “ in custody” is w hether under the t otality of the circumstances, a reasonable person in the suspect’s position would conside r himself or herself depr ived of freedom of move ment to a degree associated w ith a formal arrest. 937 S. W.2d 851, 855 (Tenn. 1996). Along w ith the objecti ve standard, the Court lis ted the follow ing non-exclusive factors for court s to consider : the time and location of the in terrogati on; the duration and character of the questioni ng; the officer’s tone of voice and gener al demeanor; the s uspect’s method of tr ansportation to the place of qu estioning; the number of police officers present; any limit ation on movement or other

form of restraint imposed on the susp ect during the interrog ation; any interac

tions between the officer and the s uspect, incl uding the words spoken by the officer to the sus pect and the suspec t’s ver bal or nonverbal respons es; the extent5

to which t he suspect is confronted wi th the law enforcement officer’s s uspicions of guilt or evidence of guilt; and finally, the extent to which the suspect is ma de aware that he or she i s free to refrain from answeri ng questi ons or to end the intervi ew at will. Id .; see also State v. Bush , 942 S.W .2d 489, 499 (Tenn . 1997).

II. Evidence at the Suppression Hearing

The evidence at the suppressi on hearing revealed that t here were three separate instances in which the def endant divulged inculpatory evidence. The f irst was an affirmati ve responseto the police officer’s inq uiry about which g un the defendant used to kil l Walker. The second invo lved incr iminating not es and the matching shel l casing found in the defendant’s c arport as a result of the consent search. The thi rd was a written admission to the killing of Walker signed by the defendant at the polic e station. Defendant’s apprehens ion began w hen Captain Houston and another officer responded to an ano nymous tip. The tip provided the nam e, “Johnny,” and his description as being the p erson responsi ble for kill ing Walker, a descript ion of the defendant’s car and l icense plate number , and where the defendant could be found. The officers approached t he area and identi fied the car; however, it was unoccupi ed. The defendant walked out of a nearby bui lding, and pol ice officers appr oached him. One officer asked the defendan t his name and the def endant answered, “Johnny.” They noticed a bulge in his shirt consistent with a gun and asked him to raise his hands. The defendant hesi tated, and the officers pulled their

weapons. The defendant acceded and w hile remov ing two weapons from thedefendant, Capt. Houston asked, “

Which one of these guns did yo u use to shoot Bud with?” The defendant responded, “t he smaller one.” Immediately thereafter, the officer s placed the defendant under formal ar rest. The officers handcuffed the defendant, put him in the back seat of the squad car, and call ed for a back-up uni t. The defendant told Ca pt. Houston he had not6

been advised of his right s. Capt. Houston informed the defendant that he would not be questioned at that time ; nevertheless, he advised him of his Mirandarights. While waiting for the o ther officer to in terview witness es at the scene, the defendant volunteered that there w ere some notes at his house that he wanted the officer s to get. He al so described where they could find the shel l casing from the pistol us ed to shoot Walker. The officers obtained a consent to search form, signed by the defendant, to search t he area where defendant stated these i tems could be found. After retriev ing the items , the officers proc eeded to the polic e station. Some t hree hou rs lat er, t he de fen dan t was a gain a dvise d of his rig hts, signe d a wai ver, a nd ga ve a full wri tten admission de tailing t he killingof Walker.
III. Analy

sis of Initial Statement
Considering the factors set forth in Anderson and that the defendant was obvio usly d epri ved of his f reed om o f mo veme nt whe n the two of fice rs with drawn weapons searched him and found two pistols, we are constrai ned to conclude th at the defendant was “ in custody” when he w as asked w hich pistol he used to shoot the victim. That statement was erroneously

admitted; how ever, we find its admiss ion harmless in light of his written statement. Te nn. R. App. P. 36(b).

IV. Fruit of the Poiso nous Tree

Defendant contends, however, that the notes seiz ed pursuant to the consent to search and thewritte n admission were “fruit of the p oisonous tree” and inadmissible. See Dunaway v. New York , 442 U.S. 200, 99 S.Ct. 2248, 60 L.E d.2d 824 (1979).7 An illegal, unwarned confession extracted f rom a defenda nt creates a rebuttable pres umption that a subs equent confession, even if prec eded by proper Miranda warning s, is tainte d by the ini tial ill egality

. State v. Smit h , 834 S.W.2d 915, 919 (Tenn. 1992 ). That presumption ma y be overcome by the prosecution, however, if the state can es tablish that t he subsequent confession was given freel y and voluntari ly and that the constituti onal right to be free from self-i ncrimination was not waived due solely

to the psyc hological pressures resulting from givingthe previ ous statement. Id . at 921. Smith listed nine (9) factors to be utilized in determinin g whether the initial, illegal conduct prevents the accused from subsequently (1) making a free and informed choice to waive the state con stitutional right not to provide evidence against one’s self, and ( 2) voluntar ily confess ing his i nvolvement in the cri me. Id . at 919. Those factors are:

1. The use of coerci ve tactics to obtain the i nitial, illegal confession and the c ausal connecti on between the illega l conduct and the challenged, subsequent confession; 2. The temporal pr

oximity of the prior and subsequent confessions; 3. The reading and explanati on of Miranda rights t o the defendant before the subseq uent confession; 4. The circumst ances occurr ing after the ar rest and continuing u p until the maki ng of the subseq uent confession including, but not limite d to, the leng th of the detention and the deprivation of fo od, rest, and bathroom facilities; 5. Th e coe rciven ess o f th e atm osph ere in which a ny questioning took place in cluding, but not limited to , the plac e wh ere the q uest ioni ng o ccur red, the i dent ity of the interrog ators, the form of the q uestions, and the repeat ed or pro longed n ature o f the qu estion ing; 6. The presence of in tervening factors incl uding, but not limited to, consultations w ith counsel or family members, or the opportuni ty to consul t with counsel, if desir ed; 7. The psychol ogical effect of hav ing already confessed, and whether the defen dant was advised that the prior confession may not be ad missible at trial; 8. Whether the defendant initiated the conversati on that led to the subseq uent confession; and8 9. The defendant's sobr iety, educat ion, intelli gence level, and experienc e with the law, as s uch factors rel ate to the defendant's abilit

y to unders tand the administer ed Miranda rights. Id . at 919-920. After examiningthese factors, we conclude the consent to searc h and the writte n adm issio n were prec ede d by Miranda warning s and were not tainted by the initial Miranda -poor question. The state has clea rly overcome the rebuttable presumption. Accordingl y, the ev idence result ing from the cons ent search and th e writt en confession wer

e properly

introduced. Thi s issue is without mer it.

SUFFICIENCY OF THE EVIDENCE
The defendant argues theevidence i s insufficient to support the conv iction of volun tary m ansl augh ter. Spec ific ally, the d efe nda nt co nten ds th at he shou ld ha ve been acquitted on the theory of self-defense. Where sufficiency of the evidenc e is challen ged, the rel evant ques tion for an appellate court

is whethe r, after vi ewing t he evidence i n the light most favorable to th e prosecution, any rationa l trier of fact could have found t he essential el ements of the crime or crimes beyond a reasonable do ubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560, 576 (1979); State v . Abra ms , 935 S.W.2d 399, 401 (Tenn.1996). The weight and credibil ity of the w itnesses' testimony are mat ters entrust ed exclusi vely t o the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn.1984); State v. Brewer , 932 S.W .2d 1, 19 (Tenn.Crim.Ap p.1996). Voluntary manslaughter i s the intentiona l or know ing kill ing of another i n a state of passion prod uced by adequate provocation suff icient to lead a reasonable person to act i n an irrati onal manner. Tenn. C ode Ann. § 39-13-21 1.9 The defendant was ind icted on the char ge of second deg ree murder and t he jury returned a conviction on the lesser offe nse of voluntary manslaughter. Defendant contends he s hot the vic tim in respons e to a threat of bein g robbed w ith a knife. No knife was ever found, ho wever , and the defendant admitted to never having s een a knife. The only thing found in t he victi m’s hands w ere car key s. The jury coul d have rati onally con cluded that the unar med victim w as attempting t o get defendant ’s cocaine producing provocation in the def endant, but that th e defendant ’s acti on i n sho otin g th e vi cti m wa s cl earl y excess iv e and unne cess ary for h is s elfdefense. It was within the prerogative of the jury to reject the claim of self def ense. It is well set tled that w hether an indiv idual acted in self-defense is a factual determinati on to be made by the jury as the sole tri er of fact. Stat e v. Ivy , 868 S.W.2d 724, 727 (Tenn. Crim. Ap p. 1993). The ev idence was sufficient for a rat ional juror to conclude beyond a reas onable doubt that the defendant was g uilty of voluntary mans laughter. Accordingl y, this i ssue is w ithout merit.

DENIA L OF PROBA

TION
The defendant argues that the trial court improper ly denied pr obation. A defendant is elig ible for probati on if the sentence received by the defendant is eig ht years or less, subje ct to some statut ory ex clusions. Tenn. Code Ann. § 40-35- 303(a). A defendant with a total effective sentence in excess of eight years is eligibl e for probation if the i ndividual sentences imposed for the convi ctions fall w ithin the probation eli gibilit

y requi rements. State v. Lang ston , 708 S.W.2d 830, 832-833 (Tenn. 1986). An especially mitigated or standard off ender convicted of a Class C, D or E felony is presumed to be a favor able candidate for alternative sentencing in the absence of evidence to th e contrary. Tenn. Code Ann. § 40-3 5-102(6). A trial court must presume that a defendant sentenced to ei ght year s or less a nd who is not an10

offender for whom incar ceration is

a priorit y is subj ect to alternat ive sentenc ing. State v. Byrd , 861 S.W.2d 377, 379-380 (Tenn. Cri m. App. 1993). It is further presumed that a s entence other than incarcerati on would result in suc cessful rehabilitati on unless rebut ted by sufficient

evidence i n the record. Id . at 380. Howeve r, although a defendant may be pre sumed to be a favor able candidate for alternative sentencing, the defendant has the bur den of establishin g suitabil ity for total probation

. State v. B oggs , 932 S.W.2d 467, 477 (Tenn. Crim. App . 1996); see Tenn. Code Ann. § 4 0-35-303(b). Even though probation m ust be automatically considered, “the defendant is not aut omatically entitled to pr

obation as a matter

of law.” Tenn. Code Ann. § 40- 35-303(b) Senten cing Commis sion Comments; Stat e v. Hartley , 818 S.W .2d 370, 373 (Tenn . Crim. App. 1991). In determining whether to grant or deny probati on, a trial court should con sider the circumstances of th e offense, the defendan t's criminal record, the defend ant’s social his tory and present condition, the need for deterrence, and the best i nterest of the defendant and the publi c. State v. Grear , 568 S.W .2d 285, 286 (Tenn . 1978); Stat e v. Bo yd , 925 S.W.2d 237, 244 (Tenn. Crim. App . 1995); State v. Black , 924 S.W .2d 912, 917 (Tenn . Crim. App. 1995). The def endant's lack of credibility is also an appropriate consideratio n and reflects on a def endant's
potential for re habilitation. State v. Ch estnut , 643 S. W.2d 343, 353 (Tenn. C rim. App. 1982). The def end ant wa s con victe d of volun tary m ansl augh ter, a Clas s C fe lony, and sentenced as a standard offender to four ( 4) years . According ly, the defendant is presumed to b e a favorable candidate for probati on. Tenn. Code Ann. § 40-35- 303 (a), (b) . Proof at the sent encing heari ng reveal ed the defendant had a pri or convicti on for marijuana pos session, and that he was addi cted to “cra ck” cocaineand alcohol. The cour

t noted the defendant’s failure to inv olve the pol ice and his k ill or be killed att itude as “unbel ievable behav ior.” The tr ial court pr operly found that

the defendant’s crimi nal and social history , the circumstances of the cri me, and his poor11

amenability to rehabilitation ma de him unsuitable f or probation. W e agree. This issue is w ithout merit. The judgment of the trial court is AFFIRMED.

________________________ JOE G. RILEY , JUDGE
CONCUR:

__________________________ PAUL G. SUMM ERS, JUDGE

__________________________ DAVID H. WELLES, JUDGE

IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON

STA TE OF TENN ESSEE , ) ) C.C.A. No. 02C01-9611-CR -00428 Appellee, ) ) SHELBY CO UNTY No. 96-00668 vs. ) ) ) (Voluntary Manslaughter) ) JOHNNY R . GOODE, ) ) AF FIRMED Appellant. )12 JUDGMENT
Came the appellant, Johnny R. Goode, by couns el, and the state, by the Attorney Gen eral, and this cause was

heard on the record on appeal from the Criminal C ourt of Shelby County; and up on considerati on thereof, this court is of the opinion that there is no reversible error.
It is, therefore, ordered an d adjudged that the judgmen t of the trial court is AFFIRMED, and the case is remanded to the Cr iminal Court of Shelby Count

y for
execu tion of t he ju dgme nt of that cour t and for c olle ctio n of cost s accr ued belo w.

In the event t he appellant indi cates an intenti on to file an appli cation for permission to appeal to the Supreme Court, he may be admitted to bai l in the additional amount o f $10,000 for a total bond amount of $25,000 wit h sufficient sureties to b e approved by the clerk of thetrial cour t pending the fil ing and disposition of said applicati on. In default of such bo nd, he shall be remanded to the cust ody of the S heri ff of S helb y Coun ty.
Costs of appeal are taxed to the appellant, Johnny R. Goode, for w hich let execution i ssue.

PER CURIAM Joe G. Rile y, Judge Paul G. S umme rs, Judge David H. W elles, Ju dge