# FILED
January 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE APRIL 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9607-CR-00275 ) Appellee, ) HAWKINS COUNTY ) VS. ) HON. JAM ES E. BECKNER, JUDG E ) JAMES DARRELL HORNE, ) (Aggravated Burglary, four counts, ) Theft, four counts) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : RUSSELL MATTOCKS JOHN KNOX WALKUP 1609 College Park Dr., Box 11 Attorney General and Repor ter Morristown, TN 37813- 1618 CLI NTO N J. MOR GAN Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General DOUG GODBEE Assistant District A

ttorney General Main Street, Courthouse Rogersville, TN 37

857

OPINION FI LED:

AFFIRMED

CHRIS CRAF

T, SPECIAL JUDGE

O P I N I O N2 Appellant, James Darrel Horne, w as charged in an eight c ount presentment with fouraggravated bur

glari es and four resultant thefts. After a hea ring on Defendant’s Motion to Suppress, which was denied by the tria l ju dge, appellant entered a gui lty plea to each count, all sentences t o be served concurrently, for an effective sentence of three years in the Depar tment of Correction, reserv ing as certified questi ons of law two findings by the tr

ial judge during the mot ion to suppress. The two questions present ed for our review ar

e state d a s follows in a wri tten order entered by the tri al judge:

Could the prosecution witness Linda McClain consent to a search of the defendant’s residence and was the consent to search sig ned by Linda McClain valid? Was the defendant adequately advi sed of his rights under Mi randa prior to the alledged[sic] oral statement made to detectives dur ing custodial interrogation?

The proof presented at the hearing o n the suppression motion is summari zed as follows: Detec ti ve Rocky Croy of the C arter County Sheriff’s Dep artment testified that he was told by his superiors to go to a residence on Anderson Road in Carter

County, Tennessee, with the SWAT t eam, to apprehend appellant on a fu gitive from justice warrant. While waiting fo r appella nt to app ear, Lind a McClain d rove up. She gave his superior, Chief Potter, permission to s earch inside for appellant, and while inside he
saw property in plain v iew that had been reported s tolen just a few days bef or e (appellant

had burglary cases

pending in several c

ounties besides Hawkin s County.) Linda McClain then testified that she and her children were liv

ing with appellant, known to her as David Morgan, at the Anderson Road address , alon g with his half brother and his half brother’s boyfriend. She had her clothes and her chi ldren’s clothes there, and paid the utilities, which were in her name. She admitted consenting to the search, and identified the written consent to search that she gave the officers on the scene. She also testified that s he was the driver w hen the appellant committed the Hawkins County bur glaries and that when s he had driven to the Anderson Road location that da y, it was for the purpose of packi ng her things and leav ing the3

jurisdiction. She had just dropped appellant off to do anoth er burglar y, and was going to get her kids and “make a run for it” (at the time of her testimony, Ms. McClain was serving a 42 year sentence for multiple other crimes.) She stated that she had made
no deals with the State to testify, but that Detecti ve Kidd had agreed to write a letter for her to the parole board after s he had served 12 years o f her sentence. Detective Alan Kidd testified that he show ed some of the property seiz ed from the residence on Anderson Road in Carter County to thr ee victims, who

identified it as property taken in three aggravated burglaries in Hawkins County (the subject of counts
one through six of the presentment.) He also confirmed that the util ity records of the Anderson Road location wer e in the name of Linda McClain. Detective Randy Simpson, with the Sullivan County Sheriff’s D epartment, testified that when he learned of appellant’s arrest he went to Carter County to borrow appellant, to try and solve some Sullivan County bu rglaries. A Detective Hodges from the Carter Cou nty Sher iff’s Department advised appellant of his rights in Simpson’s presence in Carter County, and he ag reed to ride with Simps on to Sullivan County and show him places he had broken into. During the ride, they crossed int o Hawkins County briefly and appellant pointed to a trail er park behind a store, and admitted to breaking into a couple of trailers in the park. (This Cour t must presum e from a silent record that this stat ement wa s made in reference to the fourth res idence referred to in counts seven and eight of the presentment, alth o ugh the victim’s name i s never mentioned, as the question of sup pres sion of the statement has been certified as disposit ive of the case, and no other evidenc e has been presented connecting the appellantwith these two remain ing counts.) Altho ugh appellant executedtwo written waivers, they w

ere both dated after the ride w ith Simpson. The appellant t es tified that Linda McClain lived at three different addresse s, only occasionally staying at the Anderson Road address with him, his brother and his brother’s boyfriend. Her kids s tayed th ere when s he did, but she had no key. He asked her to put the utiliti es in her nam e becaus e of his o utstand ing fugiti ve warrant from Kentucky, and that althoug h she paid the utili ty bills, she used his money. He also testified that hehad broken up with her two weeks before the search because of4

a desire to reconcile with his wife, and that therefore she had no right to consent to the search. The trial judge found from the proof that Lind a McClain had an equal right w ith appellantto use the premises and gave a valid consent to search. He likewise found that appellant was properly “Mirandized” pri or

to giving his or

al statement toDetective Simpson and that he vol untarily, knowingly and intelligently waived his right against self-incrimination. On appeal, a trial cou rt's find ings of f act on a m otion to suppress are concl usive unless the evidence preponderates against tho se fi ndings. State v. Woods , 806 S.W.2d 205, 208 (Tenn . Crim. App. 1990), cert. denied, 502 U.S. 1079, 112 S. Ct. 986 (1992); State

v. Johnson , 717 S.W.2d 298, 304-05 (Tenn. Crim. Ap p. 1986). Findin gs of fact by trial judges are afforded t he w eight of jury verdicts and are conclusive “if there is any evidence to support” them. State v. O’Guinn , 709 S.W.2d 561, 566 (Tenn. 1986). We cannot substitute ou r judgment for that of the trial c ourt or declare error absent a finding that the trial j udge abused his discretio n. S tate v. Melson , 638 S.W.2d 342 (Tenn.1982). The trial judg e was in the best positi on to evaluate the credibility

of the witnesses, and there is ample pro of in the record to support his findings. The judgment of the trial court is therefore AFFIRMED.

CHRIS CRAFT, SPECIAL JU DGE
CONCUR: JERRY L. SMITH, JUD GE

JOE RILEY, JUDGE