### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 26,

2000 Session

STATE OF TENNESSEE v. ALMEER NANCE

Direct Appeal from the Criminal Court for Knox County

No. 61277 Ray L. Jenkins, Judge

No. E2000-00170-CCA-R3-CD October 23, 2001

Following the tra nsf er of his case fro m ju ven ile cou rt, a Kn ox C oun ty gra nd j ury i ndict ed the defendant on one count of premeditated murder, one count of felony murder, one count of especially aggr avat ed robbery, two counts of especially a ggravated kidnapping, three counts of aggra vated robbery, one count of aggrava ted assault, and two counts of theft over one thousand but under ten thousand dollars. Prior

to trial the defendant

filed an unsuccessful motion to suppress the statement he gave to

authorities. The case proce eded to trial wher

ein the defendant was convicted as charged

on seven of the afo

rementioned coun

ts: more specific

ally, the jur

y found him g

uilt y of the felony murder, especially aggrav ated robber y, especially aggrava ted kidnap ping, and aggravated robbery offenses. For these crimes he received an agreed upon effe ctive sentence of life pl us twenty -five years in prison. He then filed a “Motion for Judgment of Acquittal, or in the Alternative, Motion for New Trial” allegin

g the trial cour

t erred in failing

to suppress his state

ment. After the denial of

this motion, the defendant brought the instant appeal again raising the suppression issue. However, upon reviewing the record and a pplicable case l

aw, we affirm th

e trial court’s de

nial of the motion to suppress the defe

ndant’s statemen

t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined.

Susan E. Shipley, Knoxville, Tennessee, for appellant, Almeer Nance.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussma nn, Assistant Attorn

ey Genera l; Randall E. Nichols, Distric

t Attorney G

eneral; William Cra

btree and Jo Helm,

Ass istant District Attorneys, for appellee, State of Tennessee.1 The reco rd provid es slig htly conflicting pro of as to whethe r it was Man ning or the de fendant who actually

fired the fatal sho t.

2 Though Manning stated th at the defendant

had not worn a mask at the Sipfs’ the defendant a cknowledged that he had do ne so. Furthermore, Art hur Sipf als o suggested tha t such was t

he case.

3 Manning coul

d not clea

rly re call i f the def endant had l

eft in the Sipf s’ car a lso.

4 Information concernin g the taking of the defendan t’s statement wa s presented at both

the juvenil

e and criminal
court level s; how ever, mo st of the testi mony referenced in this opinion will be that arising out of t he criminal court hearing on the defendan t’s motion to suppress.

-2- OPINION

Factual Backgrou

nd

As the defendant do

es not challeng

e the sufficienc

y of the con

victing proof, w

e will only briefly a ddres s the evidence supporting the convictions. Essentially, on January 16, 1996, the defendant and Robert Manning r obbed at gunpoint Scott’s Market in Knoxville. Two days later Manning picked up the defendant at the defendant’s home. Amanda Goode accompanied the pair. In looking for

a place to rob, the

three finally

came to a Radio Shack. Goode staye d in the car while Manning and the d

efendant, wear

ing toboggan

s/ski masks, entere

d the store. Both

men were once
more armedwith guns, and in the process of the robbery, the store clerk, Joseph Ridings, was shot in the head. 1 He subsequently died from this woun d. U pon leaving the store, Manning and the defendant rejoined Goode in a stolen Mazda, and the trio drove from the scene. They then discove red

a raised garage door at the home belonging to Arthur and Patsy Sipf. Again, Manni ng and the defendant exited the car. Finding the door from the garage to the living area of the home unlocked, the two proceeded into the house. Once more the pair d onned toboggans/ski m

asks. 2 They stole items from the home while holding both Sipfs on the floo r at gunpoint. The offenders then forced the couple into the trunk of one of the Sipfs’ cars. Having done so, Manning and the defendant left in an automobile belo

nging to the Sipf

s. 3 Goode continued in the Mazda. At this point we note that the defendant was a

pparently r

eturned to his home. He was not convicted of any offenses committed after the encou

nter with the Sipfs. Some days thereafter, the authorities captured Manning a nd G oode in Kentucky and therefrom gained i nformation about the defe ndant’s involvement in these crimes. The police arrested the defendant in the early morning hours of January 22, 1996, and subsequently obtained a signed waiver and conf

ession from him. Prior to trial defense counsel unsuccessfully attempted to have this statement suppressed. 4 The trial court conducted a hearing on this motion with four witnesses providing testimony. First De tective Clyde Cowan set out his account of what had happened at the defenda n t’ s home and at the Knox County Central Facility. According to Cowan he observed Sergeant Andy Youn g and Lieutenant Fred Ludwig speaking with the defendant’s mother at the defendant’s5 At the time of the arrest, the defendant lived with his mother and brother.

6 Though Cowan stated that he could not remember whet her the defenda nt had men tioned the p ublic defend er’s office or legal aid, St ewart’ s notes i

ndicate that i

t was th e public de

fender’ s offi

ce which h

ad been reques

ted.

-3- residence. 5 Cowan also claimed to have talked with the defendant’s mother, explaining to her why the police were there; however, he acknowledged that he had not asked her per mission to speak with the defendant. Nevertheless, the defendant was transported to the Knox County Cent

ral Facility

to be interviewed. Detective Dan Stewart joined Cowan in this endeavor a nd beg an by advising the defendant of the reason for the interview and of his constitutional rights. Cowan further stated that at that point the de fendant had indicated that he wanted his attorney, and Stewart left to call the public defender’s office. 6 Upon his return, Stewart allegedly informed the defendant “that he wa sn’t able to make contact with that person or that agency, and it would be the next day .” Both detectives then left the defenda

nt alone, and Cowa

n testified that the

plan at that point was to transport the defendant to “Juvenile.” Howe

ver, when Cowan w

ent into the r oom to retrieve his coat, the defendant volunteered that he wished t o talk. Cowan asked Stewart to return; the defendant was again advised of his rig

hts; a rights waiv

er form was execu

ted at 2:45 a.m.; t

he def endant talked about the events in question and a recorded statement concerning the offenses was subs equen tly taken. Additionally, Cowan affirmed that he had not promised, threatened, or coerced the defendant in order to gain t

he contested stat

ement. The defendant then c

alled Dan Stewar

t. Early in his testimony Stewart acknowledge d having incorrectly

stated during the juvenile court hearing that the defendant had not requested an att orn ey. However, Stewart also explained that he had retracted this statement upon refreshi ng his memory at the previous hearing using his handwri tten notes taken c

ontemporaneously

withthe defendant’s interview. He further recounted that following the defendant’s request for an attorney he had called the public defender’s office. The call was answered by a recording telling him to call during office hours. Stewart

then “told [the defendant] what the phone call had resulted in” and later learned that the defendant had c

hanged his mind a

nd would talk without

a lawyer. After this, Stewart

returned to the room where the defendan t was and took a statement from him. Stewart testified that the defendant had been advised of and had waived his rights as reflected in the waiver form; the officers had then talked with the defendant about the offenses; the defendant ha d subseque ntly given a recorded statement; and no promises, threats, or coercion had be

en employed

to obtain the statem

ent. In addition, this witness was quite clear that he had said nothing else to the defendant unt il bein g advised that the de

fendant wished to

speak without coun

sel. Providing further relevant informat ion was Sergeant B. A. Young of the Kno x County Sheriff’s Department. According to this officer he was at the defendant’s home when the arrest wa s made and talked with

the defendant’s mother. More specifica lly, Young t

estified that he ha

d told Ms. Nance to calm down and had informed her

that they we

re there “to talk

to her son about a criminal offense and look around f or we apons ... used in the criminal offense .” She allegedl y responded

by “stat[ing] that she’d already told the office rs that they could ta

lk to her son and ... look around, just [don’t] wreckher apartment or hurt her son.” Briefly thereafter, Young tra nsported the defendant to the Central Bui

lding but did not tal

k with him during this time. On cross-examination,7 Young a lso indicated that Ms. N ance had not asked w here he was taking the defe ndant.

-4- Young admitted that he had neither advised the d efendant of his rights nor had he told the defendant’s moth

er where he wa

s taking the defe

ndant. 7 Fin all y, the defendant gave his account concerning the night of his arrest and the taking of his statement. He sta

ted that no one had

read him his righ

ts at the time of the

arrest but also no one had questioned him at the scene. However, he testified that the officers at the Central Building had informed him that he had to sign the waiver before he could be appointed an attorney. The

defendant further claimed that i

n telling hi m that an attorney from the public defender’s office could not be reached at that time, Stewart had added comments such as: “that’s how much they care about y ou

... ain’t nothing they could do for [you] ... no need in [y ou] trying to g

o through all

that, get no lawyer

or nothing [sic] ... just tell [me] a nd [I] can tell [your] attorney....” Additionally, the defendant alleged that he had asked for

an attorney numerous times that night before finally talking with the detectives. Turning to cross-examination, the defendant admitted that he had been arrested on two prior occasions; had been read his rights on at least one of these; and had previously been represented by an attorney fr

om the public defender’s office. Nevertheless, the defendant alleged that he had thought the tape recording of

his statement had been for his future attorney to expedite the resolution of his case. After hearing this testimony and listening to arguments of counsel, the tria l court rendered its decision throug

h a written order

denying th

e motion to suppress

. The defendant

was tried and convicted of the multiple offenses as aforementioned. He now contends that his convictions should be reversed and remanded for a new trial because the trial court committed error i

n admitting his stat

ement.

Admission of the Defe

ndant’s Stateme

nt

As his sole issue, the defendant avers that the trial court erred by refusing to find a violation of his constitutional rights in the taking of his statement. The defendant particularly emphasizes that he invoked his

right to an attorney and that he was a minor at the time of questioning. Beca use of his age at that time, he asserts that the evaluation of

his situation should receive heightened scrutiny by this Court. A. Standard of Review

At the outset we note that "[a] trial court's determination that a confession was given knowingly

and voluntarily

is binding on the appellate courts unless the defendant can show that the evidence preponderates against the trial court's rulin g." State v. Keen , 926 S.W.2d 727, 741 (Tenn. 1994); see also
, State

v. Robert Blocker , No. E1999-01624-CCA-R3-CD, 2000 WL 726447 at *2 (Tenn. Crim. App. at Knoxville , June 5, 2000); Statev. Carroll , 36 S.W.3d 854, 864-65 (Tenn. Crim. App. 1999) (quoting State v. Andrade Bruce Williams, Jr. , No. 01C01-9803-CR-00104, 1999 WL 191782 at *3 (Tenn. Crim. App. at Nashville, April 8, 1999)). In addition, the findings of fact made by the t rial court a

t a hearing on a motion to suppress will also be upheld unless the evidence preponderates otherwise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions about wit ness-5-

credibi lit y, “the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to t he trial judge." Id

. B. Waiver of Right to Counsel

As above-noted, the trial court found that the defendant had invoked his right to counsel when his rights were i

nitially expla

ined to him. Howeve

r, in its order den

ying the mot

ion to suppress, the trial court also found that the defendant ha

d initiated furthe

r communication a

nd that, under the rationale of Edwards v. Arizona
, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), no error had occurred. In Edwards , the United States Supreme Court held that "an accused ... having expres sed his desire to deal wit

h the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made av ailable to him,

unless the accused himself initiates further communication, exchanges, or conversat io n with the police." Edwards , 451 U.S. at 484-85, 101 S.Ct. at 1885. If an accused remains silent and cuts off questioning, that silence must be "scrupulously honored." Michigan v. Mosley , 423 U.S. 96, 103-04, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). If, on the other hand, a statement is made after the

invocation of the r

ight to counsel, the court must consider whether the accused initiated the further conversation, and whether, given the tot ality of the circumstances, the waiver of counsel was knowing and intelligent. Oregon v

. Bradshaw
, 462 U.S. 1039, 1043-46, 103 S.Ct. 2830, 2834-35, 77 L.Ed.2d 405 (1983); see also State v. Claybrook , 736 S.W.2d 95, 102-03 (Tenn. 1987). The first question to be

answered, ther

efore, is whether the defendant did, in fact, re-open the dialogue with the authoritie s. In this respect the evidence supports the trial court’s conclusion. For example, testimonyexists that the defendant asked for the public defender. Stewart then called the office and received a recording. He informed the defendant of this fact

and no further questions were asked of the defendant. Shortly thereafter, intending to retrieve his coat, Detective Cowan re-entered the room where the de

fendant was; and

unprompted, the de

fendant indicate

d his desire to spea

k with the officers.

C. Evaluation of Confessions by Juveniles

Having found that follow in g his request for an attorney, the defendant initiated further

conv ersation with poli ce, the inqu iry becomes whe ther the def endant’s wa iver of his righ ts wa s k n owingly

and voluntarily entered. See Bradshaw , 462 U.S. at 1044-47, 103 S.Ct. at 2834-35; Edwards , 451 U.S. at 486 n.9, 101 S.Ct. at 1885 n.9. In State v. Callahan , 979 S.W.2d 577 (Tenn. 1998), the Tennessee Supreme Court held: that juvenile waivers shall be analyzed under a totality -of-the-circum stances test th at requires consideration of

the following fa

ctors: (1)

. .. all circumstances surrounding the interrogation including the juvenile's ag e , experience, education, and intelligence; (2) the juvenile's capacity to understand the Miranda warnings and the consequences of the waiver;8 In Braziel v. State , 529 S.W.2d 501 (Tenn. Crim. App. 1975), this Court found that the “[t]he voluntariness

and admissibility of a juvenile’s confess ion is n ot dependent upon the presence of his parents or attorneys at the interrogation when there h as been a full Miranda warning give n and understood.” Id . at 506.

9 While the report f

urther indi

cates that

the defendant s

howed signs of insecurity and an eagerness t o please, this is insufficient for a findin g that the defen dant’s stateme nt was involunta ry.

-6- (3) the juvenile's familiarity with Miranda warnings or

the ability to

read and write in the languag

e used to give the

warnings; (4) any intoxication; (5) any mental disease, disorder, or retardation; and (6) the presenc

e of a parent, g

uardian, or inter

ested adult.

Id

. at 583. The supreme court further prov ided that “[w]hile courts sha ll exercise specia

l care in scrutinizing purported waive rs by juvenil

e suspects, no sing

le factor such a

s menta l condi tion or education should by itself render a confession unconstitutional absent coercive police activity.” Id

. Turning to the evidence in this case, we f ind that the defendant’s sta tement was prope

rly admitted. While factors surrounding the taking of the statement such as the extreme lateness of the hour and the m other’s absence are of some concern, the evidence relative to the entire situation supports the trial c

ourt’s denial of th

e motion to suppress

the defendant’s

statement. 8 As above-noted, we are to examine t hese claims in

light of the totality-of-the-circumstances using the aforementioned criteria. Two days after the taking of the contested statement, t he defendant turned seventeen-years-old. The defendant had previous experience with the court sys tem, attorney s, and advice conce rning his constitutional rights. According to a psychological evaluation made a n exhibit to the record, the defendant possessed average intelligence. 9 There seems to be no question about the defendant’s ability to read the rights form because he acknowledged doing so. We further note Detective Cowan ’s te stimony that S tewart read the rights to the defendant and allowed the defendant time to read each indi vidual right and then initial on the line beside each right if the defendant understood it. The waiver form submitted as an exhibit bears the defendant’s initials on the line next to each right. Again referring to the Callahan factors, we o b serve that there was no allegation of intoxication which would have interfered withthe defendant’s ability to comprehend

a nd knowingly waive his constitutional rights. It appears that the de fendant knowi ngly an d voluntarily elected to talk to police.

Conclusion

For the foregoing reasons we conclude that no part of the defendant’s allegation merits relief. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE