FILED

October 2, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-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 GWINN CHARLES W. BURSON

Assistant Public Defender Attorney General and Reporter

201 Poplar Suite 2-01

Memphis, TN 38103 MICHAEL J. FAHEY, II

Assistant Attorney General

DENIELLE V. YOUNG

Legal Assistant

450 James Robertson Parkway

Nashville, TN 37243

WILLIAM L. GIBBONS

District Attorney General

JERRY KITCHEN

Assistant District Attorney

201 Poplar, Third Floor

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On February 10, 1995, Appellant Telly Slayton was found guilty by a

Shelby County Criminal Court jury of murder in the perpetration of robbery in

violation of Tennessee Code Annotated Section 39-13-202(2) (Supp. 1996). The

trial court ordered a sentence of life imprisonment. On appeal, Appellant raises

three issues for review: (1) whether the evidence presented at trial was sufficient

as a matter of law to sustain the conviction; (2) whether the trial court erred in

overruling Appellant’s motion to suppress his statement given to police officers;

and (3) whether the trial court erred in admitting, over Appellant’s objection, a

photograph of the victim taken while the victim was alive.

After a review of the record, we affirm the judgment of the trial court.

Factual Background

On the afternoon of August 6, 1992, the victim, Danny White, and his

friend, Tom Smith, entered the B & B Grocery in Shelby County to play pool in

the grocery store’s poolroom located in the back of the store. On his way to the

poolroom, the victim stopped at the cash register and purchased some cigarettes.

 The cash register attendant noticed that the victim had at least two hundred

dollars with him. W hile the victim and Mr. Smith were in the poolroom, Appellant

was seen entering the poolroom. Minutes later while Mr. Smith was in the

bathroom, he overheard a demand for money, the victim ’s refusal, and a gunshot.

Upon exiting the bathroom, Mr. Smith found his friend dead. The victim had been

shot in the chest with a .38 caliber gun. Immediately after the shooting, Appellant
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was seen wearing a ski mask running out of the store. Only sixty-five cents in

change was found on the victim’s body. 

 On August 7, 1995, Appellant, a juvenile and his mother agreed to go with

the police to the police homicide department for questioning. Upon arriving at the

police station, Appellant and his mother were taken to an interview room.

Appellant was advised of his Miranda rights and signed a waiver of rights form.

At some point during the questioning, Appellant’s mother was asked to leave, and

she left voluntarily. After questioning, Appellant indicated that he wanted to make

a statement. Before giving his statement, Appellant’s mother came back into the

interview room and the police investigators again read Appellant his rights.

Appellant then admitted to killing the victim because the victim had robbed him

the day before the incident. The investigating officer testified that no threats or

intimidation was used to obtain Appellant’s statement. After a hearing on

Appellant’s motion to suppress, the trial court found that Appellant’s confession

was voluntary and admissible.

I. Sufficiency of the Evidence

Appellant first claims that the evidence is insufficient, as a matter of law,

to sustain the conviction for murder in the perpetration of robbery. When an

appeal challenges the sufficiency of the evidence, the standard of review is

whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v.

Evans, 838 S.W .2d 185, 190-91 (Tenn. 1992), cert. denied, 114 S. Ct. 740

(1994); T.R.A P. 13(e). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all reasonable or legitimate inferences which may be
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drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This

Court will not reweigh the evidence, re-evaluate the evidence, or substitute its

evidentiary inferences for those reached by the jury. State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973). As the Supreme Court of Tennessee said in Bolin v.

State:

This well-settled rule rests on a sound foundation. The

trial judge and the jury see the witnesses face to face,

hear their testimony and observe their demeanor on the

stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and

credibility to be given to the testimony of witnesses. In the

trial forum alone is there human atmosphere and the

totality of the evidence cannot be reproduced with a

written record in this Court. 

405 S.W .2d 768 (1966). Thus, a jury verdict is entitled to great weight.

Once approved by the trial court, a jury verdict accredits the witnesses

presented by the State and resolves all conflicts in favor of the State. State v.

Hatchett, 560 S.W .2d 627 (Tenn. 1978); State v. Townsend, 525 S.W.2d 842

(Tenn. 1975). The credibility of witnesses, the weight to be given their testimony,

and the reconciliation of conflicts in the proof are matters entrusted exclusively

to the jury as trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

A jury’s guilty verdict removes the presumption of innocence enjoyed by the

defendant at trial and raises a presumption of guilt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). The defendant then bears the burden of overcoming this

presumption of guilt on appeal. State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977).

First-degree murder includes “[a] killing of another committed in the

perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code Ann.

§ 39-13-202(2). Appellant argues that the evidence submitted at trial is
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insufficient to support his conviction because there was no “clear” evidence that

he intended to rob the victim. Counsel for Appellant suggests the possibility that

the victim lost the money he brought into the poolroom while gambling. Appellant

also argues that Mr. Sm ith’s testimony that he overheard someone demand

money from the victim should not be believed because Mr. Smith was smoking

crack in the bathroom when he supposedly overheard the demand. Furthermore,

Appellant claims that no one identified the voices of either the person making the

alleged demand for money or the victim’s voice.

While Appellant’s speculation about what could have happened to the

victim’s money is possible, the jury apparently believed Appellant took the money.

In addition, the credibility of witnesses is entirely within the province of the jury.

The fact that Mr. Smith was high on cocaine when he heard the demand for

money was considered by the jury which nevertheless found Smith credible.

Sheffield, 676 S.W.2d at 547. Finally, Appellant is incorrect in his assertion that

no one identified the voice of the victim. Mr. Smith testified that while he was in

the bathroom he heard the victim refuse a demand for money. Although no one

identified Appellant’s voice, Appellant was positively identified entering the

poolroom minutes before the fatal shot was fired and imm ediately thereafter.

Appellant admitted shooting the victim because the victim had allegedly robbed

Appellant the day before the incident. The victim was seen with at least two

hundred dollars before the shooting, and only sixty-five cents was found on the

victim after the shooting. Clearly, the evidence was sufficient as a matter of law

to support Appellant’s conviction.

II. Denial of Appellant’s Motion to Suppress
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Appellant next argues that the trial judge erred in denying his motion to

suppress his statement given to the police. Appellant claims that the statement

was not given voluntarily because he was only sixteen at the time of the

statement, the police excluded his mother from questioning, and the police

threatened him with the electric chair. The question before us is whether, under

the totality of the circumstances, Appellant’s confession was the result of a

knowing and intelligent waiver of constitutional rights. State v. Gordan, 642

S.W.2d 742, 744 (Tenn. Crim. App. 1982). In making that determination, we are

mindful that the trial court’s findings on a motion to suppress are conclusive on

appeal unless the evidence preponderates against those findings. Braziel v.

State, 529 S.W .2d 501, 506 (Tenn. Crim. App. 1975). 

In the instant case, the record reveals that Appellant was informed of his

Miranda rights before being questioned. See Miranda v. Arizona, 86 S.Ct. 1602

(1966). After being informed of his Miranda rights, he signed a waiver of rights

form. Appellant was asked if he understood these rights to which he responded

affirmatively. Before Appellant gave his statement admitting to killing the victim

he was again explained his Miranda rights. While Appellant claims that the

investigating officer threatened him with the electric chair, the investigating officer

denied ever making such a comment. Although Appellant’s mother was not

present throughout questioning,the voluntariness and admissibility of a juvenile’s

confession is not dependent upon the presence of his parents or an attorney at

interrogation when full Miranda warnings have been given and understood.

Braziel, 529 S.W .2d at 506. We find nothing in the record that preponderates

against the trial court’s findings that Appellant’s statement was knowingly and

voluntarily entered.
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III. Admissibility of Photograph of the Victim

Next Appellant argues that the trial judge erred in allowing the State to

introduce a photograph of the victim taken while he was alive. The picture of the

victim depicts the victim in his military uniform. Appellant contends that the

photograph was not relevant and was overly prejudicial.

The admissibility of photographs lies within the sound discretion of the trial

judge and will not be overturned on appeal except upon a clear showing of an

abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Our

courts have held that pictures of a homicide victim should not be admitted at trial

because they are of tenuous relevancy. See, e.g., State v. Dicks, 615 S.W.2d

126, 128 (Tenn. 1981); State v. Strouth, 620 S.W.2d 467, 472 (Tenn. 1981);

State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App. 1985). As the court

said in State v. Dicks, “it would have been better had the ‘before’ picture of [the

victim] been excluded since it added little or nothing to the sum total of

knowledge of the jury.” 615 S.W.2d at 128.

Here, the relevance of the photograph of the victim taken while he was

alive was minimal. However, in view of the overwhelming evidence that Appellant

shot the victim, admission of this photograph was at most harmless error. Tenn.

R. App. P. 36(b).

We conclude that the evidence was sufficient as a matter of law to sustain

Appellant’s conviction, that Appellant’s statement to the police admitting to the

shooting was voluntary, and that the admission of the photograph taken of the

victim while he was alive did not constitute prejudicial error. The judgment of the

trial court is therefore affirmed.
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____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE