# FILED
August 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9801-CC-00033 Appellant, ) ) MADISON COUNTY VS. ) ) HON. WHIT LAFON, TER RY DO N RHE A, ) JUDGE ) Appellee. ) (Motion to Suppress)

FOR THE APPELLANT : JOHN KNOX WALKUP Attorney General and Repor ter ELI ZABE TH T. RYAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES G. (JERRY) WOODALL District Attorney General JAMES W. THOMPSON Assistant District A

ttorney General 225 Marti n Luther King Drive P.O. Box 2825 Jackson, TN 38302-2825 FOR THE APPEL LEE : CLIFFORD M. COLE 1355 Lynnfield Road, Suite 101 Memphis, TN 38119

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The State of Tennessee brings this i nterlocutory appeal purs uant to Tenn. R. App. P. 9 and challenges the Madison County Circuit Court’s decisi on t o suppress TerryDon Rhea’s (defendant’s) stat ement to law enforcement authorities. The trial court found that defendant w as subjected to

custodial interrogati on without having received con stitutionally mandated Mirandawarnings an d, accord ingly, suppressed his statement. On appeal, the st ate contends that

the trial court erred in suppressing defendant’s statement because he was not

in custod y when he gave his statement to the police. We affirm the judgment of the trial court.

I

The proof at the hearing on the motion to suppress showed that on February 5, 1997, Sergeant Jeff Fitzgerald with the Madison County Sheriff’s De partment took a report from the victim of an alleged rape. The vic tim named defendant as the perpe tra tor

of the rape. The next day, Febr uary 6, Sgt. Fitz

gerald attempted to contact defendant by telephoning him and le aving a message on his answering machine. Defendant subsequently returned the call, and Fitzgerald informed defendant of the allegations against h im. Defendant responded that he was familiar with the allegations

and agreed to meet with F itzgerald at his office. At this point, the testimony becomes conflicting. Fitzgeral d testified that defendant arrived at his office at approxim ately 1:20 p.m . accomp anied by t wo friends. He informed defendant that he was not under arrest, did not ha ve to give
a statement and was free to leav e at any time. Defendant gave an initial sta

tement that denied any criminal wron gd oing. In a subsequent stat ement, defendant implicated himself in the offense. Fitzgerald stated the defendant then left th e office with his fr

iends at appr

oximately

4:00 p.m. Fitzgerald testified that defend ant came to the po lice stat ion volunt arily; however, he “probably [would] have g one looking for him” if defendant had not1 Defendant was a member of the Lambuth football team in February of 1996. 3 returned his phone call. He stated that he repeatedly told the defendant that he was free to leave at any time, but defendant remained in his office voluntarily . He never informed defendant of his Miranda rights. Fitzgerald testified that although he had probable cause to arrest defendant prior to hi s giving a statement,he did not arrest defendant because he was not certai n whether the victi m wanted to prosecute. Defenda n t also testified at the hearing . His testimony differed in many respects to the testimony of Fitzgerald. In Feb ruary 1996, defendant was eighteen (18) years old, a student at Lambuth University and ha d a 1.85 grade point avera ge. He spoke with Sgt. Fitzgerald on the telephone a nd agreed tomeet with him at his office. He arrived at the st ation at approximately 12:30 p.m. with two friends. Fitzgerald informed him when he arriv ed that if he had not come to the s tation voluntari ly, Fitzgerald wo uld have “picked[him] up the next day.” Defendant testified that while the secretar y was typing his first statement, Sgt. Fitzge rald’s attitude began to change. Fi tzgerald told him that

he knew of a doctor that would be willing to testi

fy against defendant in court. Defendant noticed a rape kit with his
nam e on it in t he office during the intervi ew. Fitzgeral d told defendant that if he confessed he would sa ve himself, his family and the football team 1 from embarrassment. Fitzgerald informed de fendant that the victim’s father h ad been making threats against the “S.O .B” who committed the r ape, but that if defendant confessed, he (Fitzgerald) mi ght convince the vi ctim’s father not to prosecute. As
a result, defendant gave a second statement implicating himse lf. He left the police station at ap proximatel y 5:30 p.m. Defendant testified that Fitzger ald only told him he w

as free to leave after he signed the second statement. He was not allowe d to leave Sgt. Fitzgerald’s office without Fitzgerald being

present. When he asked for a drink of water, Sgt. Fitzgerald accompanied h im t o the water fountain. He had nev er been arrested before and did not feel free to leave at any time

prior to his signi ng the second statement. Robert Turner, a friend of defendant, also testified at the h earing. Turner4

stated that after he and defendant arrived at the police station, he stay ed in the waitin g area while defendant spoke with Sgt. Fitzgeral d. Turner testified that approximately one hour after arriving , Sgt. Fitzgeral d came into the waiting area and stated that defendant was “in some trouble” and that it would be a while before he
was “done.” Fitzgera ld told Turner that he could leave and pick defendant up when he was “done talking with [defendant].” In its oral findings of

fact, the trial court noted that defendant was eighteen (18) years old, ha d a 1.85 grade point avera ge and had no familiarity w ith the criminal justice system. The trial court found that defendant was the “t arget” of the investigationand reaso nably b elieved that he was i n custody at the time he w as questioned. Therefore , becaus e Sgt. Fitzgerald did not inform defendant of his Miranda rights, the trial court granted defendant’s motion to suppress his statement. From this decision, the state brings this interlocutory appeal.

II

The state contends that the trial court erred in suppressing defendant’s statementbecause defendant was not i n custod y when he gave hi s statement to Sgt

. Fitzgerald; thus, Sgt. Fitzgerald was not required to i nform defendant of hi s Miranda rights. The state further argues that the trial court erroneously consider ed whether defendant was the “focus of the investigation” as a circ umstance warranting suppression of the statement. A. The findings of fact made by the trial court at the

hearing on the motion are binding upon this Court unless the evidence contained in the record preponderates ag ainst these findings. State v. Smith , 933 S.W.2d 450, 455 (Tenn. 1996); Stat e
v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). The trial court , as the trier of fact, is able to assess the credibi lity of the witnesses, determine the weight and value to be afforded the evidence and resolves any conflicts in the ev iden ce. S ee State v. Odom , 928 S.W.2d at 23.5

However, this Court is not bound by the tr ial court’s conclusio ns of law. The appellanthas the burden of establishing that the evidence contained in the record preponderatesagainst the findings of fact made by the trialcourt. Braziel v. State , 529 S.W.2d 501, 50 6 (Tenn. Crim. App. 1975). B. In Miranda v. Arizo na , the Un ited States Supreme Court held that th e prosecution cannot admit a statement by the defendant stemming from“custodial interrogation”

unless it demonstrates the use of proce dural saf eguards e ffecti ve to
secure the privilege agai nst self-incrimination. 38 4 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694. The Court defined “custodial interrogation” as “ questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. In State v. And erson , 937 S.W.2d 851, 852 (Tenn. 1996), the Tennessee SupremeCourt held that in order to assess whether an individual is in “custody” for the purpose

s of Mir anda , a court must inquire w hether “under the totality of the circumstances, a reasona bl e person in the suspect's pos ition would consider himself or

herself deprived of freedom of movement to a degree associated w ith a formal arrest.” In so holding, the Court delineated several factors pertinent to that determinatio n, including: the time and location of the interrogati on; the duration and character of the questioning; the officer's tone of voice and general demeanor; the suspect's method of transportati on to the place of questioning; the number of police officers present; any limitation on movement or other form of restraint imposed on the suspec t during the interrog ation; any interactions

between the officer and the suspect, including the words spok e n by the officer to the suspect, a nd the suspect's verbal or nonverbal re spon ses; the extent to whi ch the suspect is confronted with the law enforceme nt officer's suspicions of gui lt or evidence of guilt; and finally, the extent to which the suspect is made aware that he or she is free to refrain from ans wering questions or to end the interview at will. Id. at 855. The determination of whether an individual is in custody is fact specific, and the trial court should assess the applicability of the relevant factors in making its findings. Id. C. Initiall y, we must agree with the state that the trial court erroneously6

considered the “fo cus o f the investigation” tes t as a basis for suppressing defendant’s statement. Whether the accused is the “focus” of the inv estigation is not r elevant to the inquiry

. Anderson , 937 S.W.2d at 854; State v. Cooper , 91 2 S.W.2d 756, 766 (T enn. Crim. App. 1995). However, upon our review of the trial court’s findings in conjunction with the relevant factors enunciated in Anderson , we must conclude the trial court correctly determined th at, under the totality of the circumstances, a reasonable person in defendant’s position would consider himself in custody. Although defendant agreed to speak with Sgt. Fitzgerald, the interview took place at Fitzgerald’s o ffice. Th e interrogation lasted from three (3) to fiv e (5) hours. Although onl y one officer intervieweddefendant, t he defendant was not allowed to leave Sgt. Fitzgerald’s office without an e scort. In fact, Fitzg erald accompanied defendant to a wat er fountain when he asked for a drink of water. The trial court found that Fitzgerald told the defendant “that if he would give him a s tatement, that would probably keep him out of trouble .” The trial court also found th at Sgt . Fitzg erald persisted in questioning defendant until defendant implicated himself in the offense. The state points to

numerous instances

where Sgt. Fitz

gerald testified that he informed defendant that he was free to leave at any time. However, defendant denied that Fitzgeral d tol d him this until after he sig ned the second, incriminating statement. By its findings, the trial court im plici tly accredited the testimony of the defendant over that o f Sgt. Fit zg erald. W e are not free to ignore these factual determinations. The tri al court w as in a much better position than this Court to assess the credibility of the witnesses. The state has not proven that the evidence preponderates aga inst the trial court’s findings of fact; thus, this Court is bound by those findin gs. In applying these findings to the Anderson criteria, we concl ud e t hat the trial court did not err in granting defendant’s motion to suppress his statement to Sg t. Fitzgerald.
For the foregoing reasons , the judgment of the trial cour t is affirmed.7 JOE G. RILEY, JUDGE

CONCUR:

CURWOOD WITT, JUDGE

ROBERT W. WEDEMEYER, SPECIAL JUDGE