# FILED
September 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE JULY 1997 SES SION

STA TE OF TENN ESSEE, ) ) C.C.A . NO. 01C01-9607-CR -00312 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN , JAM ES EDWA RD GA

TES, ) JUDGE

) Appellant. ) (Esp ecia lly aggr avate d rob bery)

FOR TH E APPEL LANT: FOR THE APPELLEE:
KAR L D EAN JOHN KNOX WALKUP Public Defender Attorney Gen eral & Repor ter JEFFERY D eVAS HER PE TE R M . C OU GH LAN Asst. Public

Defender Asst. Attorney General 1202 St ahlma n Bldg. 450 Jame s Rob erts on Pk wy. Nashvil le, TN 37201 Nashvil le, TN 37243-0493 (On Appeal) VICTOR S. JO HNSON, III WENDY S. T UCKER Distric t Attorney General-andJOAN A. LA

WSON Asst. Public Defenders KY MB ER LY HAAS 12th Flo or Stahl man Bld g. Asst. Dist rict Attor ney General Nashvil le, TN 37201 Washington Square Bldg. , Suite 500 (At Trial) 222 Second Ave., North Nashvil le, TN 37201

OPINION FILE D:____________________

AF FIRMED
JOHN H. PEA Y, Judge2 O P I N I O N

The defendant was indicted in Feb ruary 1995 for especially aggra va ted robbery. A jury convicted him of this offense and after a hearing, he was sente nced to nineteen years i n the Tennessee Depar tment of Correcti on. In this appea l as of right, the defendant raises the following issues:

1. Wh eth er the trial court erred in denying the defenda nt’s m o tion to suppress statements made by the defendant to police officers. 2. Whether the trial court erre d in refusing to grant a mistrial afterthe State allowed the jury to hear a porti on of the defendant ’s tape recorded statement that should have been redacted. 3. Whether the trial co urt erred in denying the defendan t’s request for a special jury instruction regarding the applicable range of punishmentand further err ed in instruc

ting thejury on the number of years the def endant would have to se rve before becoming el igible for parole. After a revi ew of the recor d and applicablelaw, we find that these is sues are w ithout meri t. Th us, we aff irm th e jud gmen t of the c ourt belo w.

The facts of the case are as follows. On September 2, 199 4, Anne Deol, of 1220 Second Avenue South in Na shvi lle, r eturne d to her

home sh ortly

after 9 :00 p.m. She drove int o her driveway and parked her car near the steps to her back porch. When she stepped onto thesecond step, she heard voices unde r the stairs. Suddenly, a young man ran arou nd the s tairs, grab bed he r purse, a nd fle d throu gh the back ya rd. Wh ile Ms. Deol stood watching the young man run away, she was shot in the back. She managed to find her way

into her home and called 911. Officers and emergency personnel arr ived shortly thereafter.

At the defendant’s tri al, Ms. Deo l, who was seventy-three years old at the time of th e ro bber

y, t esti fi ed that h er back porc h lights h ad not been illu minated and,3

therefore, she was unable to identify h er attackers . She testified t hat she did see three black males but that she could i dentify none of t hem.

Shor tly af ter t he ro bbe ry, Dete ctive Ricky Rolls of the Metropolitan Police Department, received a call from a woman named SherryReed. Ms. R eed told Roll s that she had discovered a gun in the room of a young man, Leslie Jones, who was stayingat her house. Rolls picked up the g un and passed it along t o Detective Dan Whitehurst who
was investi gating therobbery of Ms. Deol. With the discov ery of the g un and other information, Whitehur st then formed a list of three possibl e suspects: t he defendant, Dwjuan “Juaney” Br

adford, and James “J .T.” Jordan.

On September 14, 199 4, W hitehurst went to see the def endant’s mothe r at her place of employment. The defendant’ s mother agreed to take Whitehurst to her home t o t a l k

t o h e r s o n . Wh en Whitehurst a nd a fellow det ective ar rived at the home, Bradford and the defend ant were present. The def endant, in the presence of his mother, gave the officers a tape reco rd ed statement in w hich he admitted t o his role i n the robb ery. The defenda nt had not been read h is Miranda rights p r ior t o givi ng the statement. After the defendant gave hi s statement, the det ectives l eft.

The followingday, the defendant called Whitehurst and said that he and the other two suspects, Br adford and Jordan, were at the defendant’s house wait ing to be picked up by the pol ice. Whitehurst returned t o the defe ndant’ s homeand arrested all three young men. The defendant was taken to the police department a nd was read his Miranda rights. He then gave a statement o n video tape t hat was si milar in sum and substance to the e arlier st atement.

In his first i ssue, the defendant arg ues that the tri al court err ed by refusing4

to grant his moti on to suppress both statements made to Detective Whitehurst. At the hearing on the motion to s uppress, Whitehurst testified that the defendan t had been a suspect at the time the fir st statement was taken. H e further testifie d that he had not gone to the defenda nt’s home with th e intention of arresting him be cause he did not yet have enough evi dence. He sai d thathe had interv iewed the defendant with the hop es of building a stronger

case. Whitehurst stated that he did not displ ay handcuffs or weaponsand thatthe defendant was never threatened. He testified that the defendant had been free to leave at any point

.

The tape recordi ng of th e defenda nt’s stateme n t reflects that W hitehurst told the defendant that he knew who had robb ed Ms. Deol and that he h ad known for weeks. To this the defendant responded, “So I can go to juvenile rig ht now?” White hurst told him that he coul d and th at in fact, all three youngmen were g oing to juvenile. W hitehurst told the defenda nt, “Juaney [Bradford] is gonna go tonight. . . . Yes, tr ust me. Eve ryb ody

getsto go .” At

this point, the defe ndant t old Whitehur st to h andcuff hi m. W hitehurst refused, sayi ng he just want ed the defendant to tell him the truth. The defendant then confessed to bei ng the one that s hot Ms. Deol

.

Afterhe c onfessed, the d efendant was asked if he wanted to talk t o Br adford, who was waiti ng outside thehouse. The defendant agr eed a nd tol d Whitehurst, “I ain’t gonna run. I [have] no shoes.” W hitehurst replied, “I don’t think you’re gonnarun.” At that point, Whitehurst stepped away so that the defendant an d Bradford could speak

confidentially . Whitehurst left shortly thereafter

without making any arrests.

The def endant contends that the above stat ement should have bee n suppressed because the sta tement was made du ring a custodial inter rogation and the defendant had not been advised of his Miranda rights. “Custodial interrog ation” has been5

defined as “q uesti oning init iated by l aw enforcement officer s after a person h as been taken into custody

or otherwis e deprived of his freedom of action in any si gnificant way.” Miranda v . Arizona , 384 U.S. 436, 444 (1966 ).

The Tennessee Suprem e Court recently addressed this issue in its opinion State v. Ander

son , 937 S.W.2d 851 (Tenn. 1996). In Anderson , the court st ated that in de termining w hether an indiv idual is ‘ in custody ’ and entitled to Mirandawarning s, the relevant inquiry is whether, under the totality of the circumstances, a reasonable per son in the suspect’s position would consider himself or herself deprived of freedom of mov ement to a degree associated with a formal arrest

. The test is obj ective from the view point of the s uspe ct, a nd th e una rticu late d, su bjec tive view of law enforcement officials th at the individ ual being q uestioned is or is not a s uspect does not bear upon the questi on. Anderson , 937 S.W.2d at 852.

The court also listed some factors which may be relevant to the totality of the circumstan ces inquir y. They i nclude: the time and location of the interr ogation; the du ratio n and character

of the questioni ng; the officer’s tone of voice a nd general demeanor; the suspe ct’s method of trans portation to the place of quest io ning; the number of po lice officers present; any

limitation o n movement or oth er form of restrai nt imposed on the suspect during the in t errogation ; any i nter actions between the officer and the suspect, including the words s poken by the officer to the sus pect, and the suspect’s verbal or nonver bal responses; the extent to which the suspec

t is confront ed wi th the l aw en forceme n t officer’s suspicionsof guilt or

evidence of g uilt; and finall y, the ex tent to which the suspect is made aware that he or she is free to refrain from answeri ng questi ons or to end the intervi ew at will. Anderson , 937 S.W .2d at 855 (citations omitte d).

In h is order deny ing the motion to suppress, t he trial ju dge found n o indication of custodial interrog ation. He noted that the def endant was questioned at his home with hi s mother present and that there had been no proof that the d efendant was6

not free to leave or that he had ever felt uncomfortable. This Court is b ound by the tr ial court's determination that the defendant was not in custody at the time of questi oning unless it "cl early appear [s] that there ha[s] been an abuse of di scretion and a violatio n of the rights of the accused." Childs v . State , 584 S.W.2d 783, 788 (Tenn.1979); State
v. Furlough , 797 S.W.2d 631, 639 (Tenn.Crim.App.199 0); Stat e v. Na kdimen , 735 S.W.2d 799, 802 (Tenn.Crim.App.1987).

In applyingthe Anderson factors to the case now before us , we find that the trial judge did not

abuse his dis cretion in de termining t hat the def endant was not in cust ody. The defendant was q uestioned in hi s home around ni n e in the eveni ng. The officers entered the home wit h the defendant’s mother ’s permissi on. The interv iew lasted approximately ten minutes and was non-controversial in nature. The officer’s to ne of voice was that ex pected in a normal conversat ion. He was not harsh in speaking to the defendant. Detective Whitehu rst w as accompanied by one other detecti ve, and they arrived at the defendant’s home i n plain clothe s and in an unmarked car. Obviousl y, the defendant was not transported anywhere for questioning; he was a t home when the officers arrived. Next, the defendantwas in no way limited in movement. W hitehurst testified that

no handcuffs or we apons had been displayed. He further t estified that no threats had been made to the defendant.

W hitehurst testified that hehad confronted th e defendant with evidence of the defendant’s guil t by tell ing the defendant that he knew the defendant had committed the crime. However, w hen the defendant said, “ Handcuff me now,” Whitehurst refused , telling the defendant th at he was not his enemy. W hitehurst did not specifica lly tell the defendant that he was

free to leave the room or free to r efuse to answer

any questions. Nor did Whitehurst specificall y tell t he defendant that he was not under arrest. Near the end of the interv iew, the ot her detective suggeste d that the defendant speak to one of the7

other suspects, Br

adford, who was waiti ng outside. At that point, the defendant agreed to speak to Bradford and told the officers that he “ain’t g onna run.” Whitehurst respo nded that he had not thought the def endan t would r un. The detectives then left the defendant ’s home without making any arrests.

Thus, under the se circumstances , we find that the trial court reached the correct conclusion. A reasonable person i n thi s def end ant’ s situ atio n woul d not have thoughthe was in custody. The defendant wasat his home, w ith his mother , and had not been restrained or

threatened in any

way. Furthermore, the detectives told the defendant they would not h andcuff him. The detectives also told the defendant that they ha d already spoken to Bradford and Jordan, and the de fendant was aware that those tw o had not been arreste d. The defendant’s state ment was pro perly admi tted as evi dence.

Having made this determi nation, t he defendant ’s contention that h is second sta tement w as inadmissible because it was “tainted” by the alleged ill-obtained first statementis wi thout merit. The defendant gave his second statement to the police after he was arrested and read his Miranda rights. As the first statement was a dmi ssible, it could in no way

“taint” thesecond statement. Both statementswere pr operly admi tted.

As his second i ssue, the defendant contends that

the trial court erred w hen it refu sed to grant the defendant’s motion for a mistrial after the jury heard a porti on o f the defendant’s taped stat ement thatthe State had previously agreed to redact. At trial, the State told the court it pl anned to play the audio tape of the st atement the defendant had made at his house to Detective Whitehurst. One of the prosecuto rs explai ned to the
cou rt that it had been agreed that a portion of the tape would not be played because it
was irrelev

ant to the issue s before the court

. The prosecutor info rmed the court that she would have to stop and start the tap e herself but that she had “done the counter thi ng.”8

However, at trial, the portion that was to be omi tted was pl ayed for the jury. The defendant immediately objected and asked for a mistrial . The prosecutor explained t hat she had pushed the stop button on the recorder but that it did not st op.

What the jury

heard was a question from D etective Whitehurst t o the defendant w hile at t he defendant’s house. Whitehurst asked the defendant, “Juaney [Bradford] has got you in trouble b efore, ain’t he?”The volume on th e rec orde r was turned down immediately afte r this so that the juryonly heard this question and not the defendant ’s reply. The trial court denied the defe ndant’s motion for a mistr ial statingthat “‘in trouble’ does n’t mean anythi ng signi ficant. There’s n o thing a bout any kin d of convicti on or

anything of that nature. It just is ‘in trouble’ which could mean at school or anywhere else.”

Whether to grant a mistrial is a decision within the sound discr etion of the trial judge, a nd absent an abuse of that discretion, such action w ill not be di sturbed on appeal. Stat e v. Hall , 667 S.W.2d 507, 510 (Tenn.Crim.App.198 3). Generally , a mistrial will be declared in a criminal case only when there is a "manif est necessi ty" req uiring such action by the trial j udge. Arnold v. State , 563 S.W.2d 792, 7 94 (Tenn.Crim.App.19 77).

In this case, we cannot conclude that the jury’s hearing Whitehu rst’s question was a “manifest necessity ” requir ing a mistr ial. W e find that the trial judge did not abuse his dis cretion in r efusing to gr

ant a mistrial . How ever, we note that i n the future, the better prac

tice woul d be to actually have thetape redacted rather than relying on a tape counter and a possibly malfunctioning tape recorde r.

As his final is sue, the defendant contends that the trial court erre d when it9

denied his re ques t fo r a spe cial j ury i n struction concerning t he applicable r ange of punishmentand further erred when itinstructed the jury on the minimum nu mber of years the defendant would s erve b efore becoming eli gible for par ole. Prior

to trial, the defendant requested, as is prov ided for under T.C.A. § 40-35- 201(b)(1), that the jury be instructed on the possible penaltie s for the offense charged and al l lesser i ncluded offenses. The defendant request ed that the jury be told that hav ing been charged with a Clas s A fe lony, the defendant, if convict ed, could recei ve a sentence of not less than fiftee n years and not more than six ty year s. See T.C.A. § 40-35-111(b)(1 ). Th e defendant also requested that the jury not be instructed as t o the defendan t’s possible parole eligibi lity. The trial judge denied the defe ndant’s request and informed the jur y that if convicted , the defendant woul d receivea sentence between fifteen an d twenty -five years as a Range I standard offender. See T.C.A. § 40-35-112(a)(1). He also informed the jury about the defendant’s el igibili ty for parol e as provi ded in T.C.A. § 40-35-201(b)(2)(A). The def endant now contends that the trial ju dge erred b y not granting his request for the special instructi ons to the jury . We find no me rit to this contention as the trial court wa s simply following the mandate of the statute. Tennessee Code Annotated § 40 -35-201(b) provides:

(b)(1 ) In all contest ed criminal cases, except for capital crimes which are govern ed by the procedures contained in §§ 39-13-204 and 39- 13-205, upon the moti on of eith er pa rty, filed with the court prior to th e sel ecti on of the j ury, the court sh all charge the possible penalties fo r the offense ch arge d and all less er included offenses. (2)(A)(i) When a c harge as to p ossible penalt ies has been requested pursuant to subd ivisio n (b)(1), the judge shall also include in the instruct ions fo r the jury to weigh and consider the meaning of a senten ce of imprisonment for the off ense charged and any les ser included offenses. Such instr uction shall include an appr

oximate cal culation of the mini mum number of years a person sentenced to imprisonment for the offense charged and l esser incl uded of f ense s mus t serve before reaching such person's earliest r elease elig ibility

date. Such calculation shall include such fact ors as the release eligibil ity percentage established by § 40-35- 501, maximum a nd min imum sent ence redu ctio n cre dits auth orize d by § 41-21-236 and the governor's power to reduce prison10 overcrow

ding pursuant t o titl e 41, chapter 1, part 5, if applicable. ( emphasis added).
The trial court did not err in refusing to instruct the jury as the defendant had requested. The trial court followed the statute as to how to instruct the jury on possible punishment for the defendant. Therefore, we find no merit to thi s argument.

The defendant next contend s that T.C.A. § 40-35-201 (b) is unconstitutional. He specificall y claims that the statute i s uncons titutio nally vague, is v iolativeof due process, and is an unconstitutional attempt by thelegislature to exercise judicial power. This Court recen tly addres sed these ver y issues in Stat e v. Howard E . King , No. 02C01- 9601-CR-00032, Shelby Cou nty (Tenn. Crim. App. filed Oct. 22, 1996, at Jackson)( perm. to app. granted March 10, 1997 ). In finding the statute constitu tional, this Court determined that the statuteis no t impermissibly vague, that none of the d efendant’s constitutional rights was vi olated, and that thestatute is not a legisl ative attempt to exercise judicial power. This Court also rejected the defe ndant’s reliance on F arris v. State , 535 S.W.2d 608 (Tenn. 1976) for the propos ition t hat the statute is unconstitutional. As the Court ’s anal ysis i n K ing is quite comprehensive, we find it unnecessary to again explain the reasoning behind these conclusions. Thus, we find no merit to the defen dant’s challenge that T.C.A. § 40-35-201(b) is unconstitutiona l.

For the foregoing reasons, we find no me rit to the defendant’s appeal and affirm the judgment of the court below

.

______________________________ JOHN H. PEA Y, Judge

CONCUR:11

______________________________ W ILLIAM M. BARKER, Judge

______________________________ JERRY L. SMITH, Judge