# FILED
October 2, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER SESSION, 1996
STATE OF TENN ESSEE, ) C.C.A. NO. 02C 01-9601-CR-00013 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOHN P. COLTON, JR. TELLY M. SLAYON, ) JUDGE ) Appellant. ) (First Degree Murder )

FOR THE APPELLANT : FOR THE APPELLEE : WALKER GW INN CHARLES W. BURSON Assistant Public Defender Attorney General and Repor ter 201 Poplar Suite 2-01 Memphis, TN 38103 MICHAEL J. FAHEY, II Assistant Attorney Gener al DENIELLE V. YOUNG Legal Assistant 450 James Robertson Parkwa y Nashville, TN 37243 WILLIAM L. GIBBONS District Attorney General JERRY KITCHEN Assistant District A

ttorney 201 Poplar, Third Floor Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE-2- 

## OPINION
On February 10 , 199 5, Appellant T elly Slayton was fou nd guilty by a ShelbyCounty CriminalCou rt jur y of murd er in the perpe tration o f robbe ry in violat ion of Tennessee Code Annotated Section 39-1 3-202(2) (Su pp. 1996). The trialcourt order

ed a sentence of l ife impri sonment. On appeal, Appellant r aises three issues for revi ew: (1) whether the evi dence presented at tri al was suff icient
as a matter o f l aw to s ustain the co nviction ; (2) wh ether th e trial co urt erre d in overruli ng Appe llant’s m otion to supp ress h is statement gi ven to police off icers; and (3) whether the tri al court erred i n admitting, over Appell ant’s o bjecti on , a photograph of t he victi m taken while t he victi m was alive.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

Factual Background On the afte rnoon of Aug ust 6, 1 992, th e victim , Dan ny W hite, an d his friend, Tom Smith, entered the B & B Gro cery in S helby C ounty to play p ool in the groce ry store ’s poo lroom locate d in the back of the s tore. O n his way to the pool roo m, the victim stoppe d at the cash re gister and pu rchased some cigarettes. Th e cash register attendant noticed t hat the vi ctim had at l east two hundre d dollars with him. W hile the victim and Mr. Smith were in the pool room, Appellant
was seen entering the poolroom . Minutes later while Mr. Smith was i n the bat hro om, he ove rhear d a de man d for m oney, the victim ’s refusal, and a gunsh ot. Upon exi ti ng t he bathr oom, Mr. Smith fou nd his fri end dead. The vict im had been shot in the chestwith a .38 caliber g un. Immediatel y after the shooti ng, Appellant-3-

was seen w earing a ski mas k running out of the s tore. On ly sixty-fi ve cents in chang e was fo und on the victim’s b ody. On August 7, 1995, Appel lant, a j uvenile and hi s mother agreed to go with the police to the poli ce homicide depart ment for questioni ng. Upon arrivi ng at the police station, Ap pellant an d his mo ther were taken to an interv iew roo m. Appellant was advised of hi s Miranda ri ghts and signed a waiver of righ ts f

orm. At some point duri ng the questi oning, Appellant’ s mother was asked to l eave, and she left voluntarily. After questioning, Appellant indicated that he wanted to make
a statement. Before giv ing his statement, Appell ant’s mother cameback into t he interv iew room and the po l ice investi gators again read Appellant hi s rights. Appellant t hen adm itted to k illing the victim b ecau se the victim had ro bbed him the day before the incident . The invest igating officer testified that n o threats or intimid ation was used to obtai n Appellant’ s statement. After a hearing on Appe llant’s motion to suppress, the tri al court found that Appell ant’s confession was voluntar

y and admissibl e.

I. Suffi ciency of t he Evidence Appellant

first claims that

the ev idence i s insuf fici ent, as

a matter

of law, to sustain th e convictio n for mu rder in the p erpetr a tion of r obbery. When an appea l challe nges the su fficienc y of the e videnc e, the s tanda rd of rev iew is whether, after vie wing th e evide nce in the light most favorabl e to the State, any rationaltrier of fact could have found theessentialelements of t he crime beyond
a reason able do ubt. Jackson v. Vi rginia, 443 U.S. 307, 318 ( 1979 ); State v

. Evans , 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. deni ed , 114 S. Ct. 740 (1994); T.R.A P. 13(e). On appeal, the State is enti tled to the str ongest legitimate viewof the e vid ence and all reasonable or l egitimate inferences which may be-4-

drawn therefrom

. State v. Cabbage , 571 S .W .2d 83 2, 835 (Ten n. 197 8). Th is Court will not reweigh t he evidence, r e-evaluate the evide nce, or su bstitute its evidentiary inferences forthose reached by

the jury. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 197 3). As the Supreme Court of Tennesse e said in Bolin v. State : This well-settled rule re sts o n a sound foundati on. The t rial judge and the j ury see the witnesses face to face, heartheir testimony and obser ve their demeanor on the stand. Thus the tri al judge and jury are the primary instrum entality of justic e to d etermine the wei ght and credibility to be given t o the testimony of wit nesses. In the trialforum alone i s there human atmosphere and t he totality of the evide nce ca nnot b e rep roduced with a written reco rd in this Co urt.
405 S.W .2d 768 (1966). T hus, a jury v erdict is en titled to grea t weight. Once approved b y the trial court , a jury verdict accredits the witn esses presented by the State and resolves all conf licts in f avor of the State. State v. Hatch ett , 5 60 S.W .2d 627 (Tenn . 1978); State v. Townsend , 525 S.W.2d 842 (Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony, and the reconci liati on of confl icts i n the proof ar e matter s en trusted exclus ively to the jury

as trier of fact. State v. Sheffie ld , 676 S.W .2d 542, 547 (Tenn. 198 4). A jury’s guilty verdictremoves the presumpti on of innocence enj oyed by the defendantat tri al and raise s a presu mption of guilt. State v. Tug gle , 639 S.W.2d 913, 914 (T enn. 19 82). The defendant then bear s the burden of over com ing this presu mptio n o f guilt on ap peal. State v . Brown , 551 S.W.2d 329, 331 (Tenn. 1977). First- degree murder includ es “[a] killing of another com mitted inthe perpetrat ion of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code Ann. § 39-13-2 02(2). Ap pellant a rgu es tha t the evid ence subm itted at tria l is-5-

insuffi cientto support hi s convict ion because ther e was no “clear”

evidence that he intended to rob thevi cti m. Counsel for Appel lant suggests the possibi lity that the victi m lost the money hebroughtinto the poolroom whilegambling. Appel lant also argues that Mr. Sm ith’s testi mon y that he overheard someone demand money from the vict im should not bebelieved because Mr. Smith was smoki ng crack in the b athroo m wh en he supp osed ly overheard t he demand. Furthermore, Appellant

claims that

no one identi fied the v oices of either

the person making the alleged demand for

money or the vi ctim’s vo ice. W hile Appellant’ s speculati on a bout wha t could have happened to the victi m’s money is po ssible, the jury appare ntly believed App ellant took the m oney. In addition, the credib ility of witnesses is entirely within the provinc e of the jury. The fact that

Mr. Smith was hi gh on cocaine w hen he heard the demand for
m oney was considered by the jury

which nevert heless found Smit h credibl e. Sheff ield , 676 S.W.2d at 547. Finall y, Appell ant is i ncorrect i n his assert ion that
no one iden tified the voice of the victim

. Mr. Smith testified that wh ile he w as in the bathroom he heard th e victi m refuse a demand for money. Although noone identif ied Ap pellant’ s voice, Appel lant was posi tivel y identi fied entering the poolroom minutes be fore the fatal shot wa s fired and imm ediately thereafter. Appellant

admitted shooting the vi ctim because the victi m had allegedly robbed Appellant

the day befor

e the inci dent. The vi ctim was seen with at le ast two hundred dolla rs before t he shooting, and only si xty-f ive cents was found on the victim after t he shooting. Clearly, the evidence was suffi cient as a matter of law to support Appel lant’s convicti on.

II. Denialof Appellant ’s Motion to Suppress-6- Appellant

n ex t argues that the trial jud ge erred in denying his motio n to suppress his statement gi ven to the pol ice. Appellant c laims that the state ment
was not given voluntarily because he wa s only sixteen at the time of

the statem ent, the poli ce excluded hi s mother from quest ioning, and the police threatened him with the elect ric chai r. The questi on before us i s whether, under the totality of t he circumstances, Appellant’ s confes si on was the resu lt of a knowing and intel ligent waive r of constitu tional rights. State v. Gordan , 642 S.W.2d 742, 744 (Tenn. Crim. App. 1982). In maki ng that determination, we are mindful that the t rial cour t’s fi ndings on a motion to su ppress are c onclusive on appeal unless th e eviden ce prep ondera tes aga inst those findings. Braziel v. State , 529 S.W .2d 501 , 506 (T enn. C rim. App . 1975). In the instant case, the record r eveals that

Appellant was

informed of

his Miranda rights befo re being question ed. See Miranda v. Arizona , 86 S.Ct. 16 02 (1966). Af

ter being i nformed of his Miranda rights, he signed a waiver o f rights form. Appellant was

asked if he under

stood these rights to

which he responded affirmatively. Before Appell ant gave h is state men t adm itting to k illing the victim he was again expl ai ned hi s Miranda ri ghts. While Appell ant clai ms that the investi gating officer

threatened hi m with the el ectric c hair, t he inv estigati ng officer denied ever making such a comment. Although Appell ant’s mothe r w as not presentthroughout quest ioning, th e volun tarines s and adm issibility o f a juven ile’s confession is not dep enden t upon the presen ce of his p arents or an attorney at interr ogation when full Miranda warni ngs have been given and unde rstoo d. Braziel , 529 S.W .2d at 506 . We fi nd nothing i n the record t hat preponderates again st the tri al court’ s findi ngs that Appell ant’s statement was knowingly and voluntarily entered.-7- III. Admiss ibility of Pho tograp h of the Victim Next Appellant ar

gues that t he trialjudge erredin allo wing the State to introduce a photograph of the vic tim taken whil e he was alive. The pictur e of the victim depicts t he victi m in h is milita ry uniform. Appellant contends that

the photo graph was n ot relev ant an d was overly p rejudic ial. The admissibil ity of

photographs l ies with in the sound discret ion of thetrial judge and willnot be overt urned on appeal except upon a cl ear showing of an a buse of discretion

. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 19 78 ). Ou r courts have held that

pictures

of a homicide victi m should not be admitted at tri al because they are o f tenuou s relevan cy. See, e.g. , S tate v. Dicks , 615 S.W.2d 126, 128 (T enn. 19 81); Stat e v. Strouth , 620 S.W .2d 467, 472 (Tenn. 198 1); State v. Richard son , 697 S.W.2d 594, 597 (Tenn. Crim. App. 1985). As the court said in State v. Dicks , “it woul d have been better had the ‘befo re’ pict ure of [t he vi cti m] been e xcluded since it adde d li ttle or nothing to the sum totalof knowledge of t he jury. ” 615 S.W.2d at 128. Here, the relevance of the photogr aph of the vict im t aken while he was alive was minimal. However , in vi ew of the over whelming evidence that Appellant shot thevi cti m, admission of this photograph was at

most harmless err

or. Tenn. R. App. P. 36 (b).

We conc lude th at the e videnc e was sufficie nt as a matte r of law to susta in Appe llant’s conviction , that App ellant’s state m ent to the p olice admit ting to the shooting was vo luntary , and th at the a dmis sio n of the photograph taken of the victim while he wasalive di d not consti tute prej udicialerror. The judgment of the trialcourt is

therefor

e affirmed.-8- ____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOSEPH M.TIPTON, JUDGE