### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 11, 200 6

STA TE OF TEN NES SEE v. MA RC US D. HA YES

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 03-06160 P aula S kahan , Judge

No. W2005-01597-C CA-R 3-CD - F iled May 4, 2006

The de fenda nt, Marcus D . Hay es, wa s indicted for pr emeditated f irst deg ree murder. H e wa s

c on vic te d b y

a jury of the le sse r- inc lud e d o ff

e ns e of se c on d d e g re e mur de r. He wa s se nte nc e d to
tw e nty -thr e e y e ars in c on fi ne me nt. On app e a l, the de fe nd a nt c ha llen g e s th e a dmi ssi bil ity of his statements to police and the sufficie ncy of the convicting evidenc e. After revie w of the r ecor d and the pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J.C. M C L IN , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE and A L AN E. G L EN N , J J ., joined.

An tho ny He lm, Me mph is, Te nn e sse e , f or the app e lla nt, Ma

rc us D. Hay e s.

Pa ul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and J immyL ammey and Alexia Fulg ham, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

I. F AC TS

The proof at trial re flec ts that the victim, Felipe He rnande z, was shot and killed on March 29, 2003. At trial, Thomas Dunlap, minist er of the Hampton Memorial United Methodist Church in M ill ing ton , te sti fi e d tha t on Mar c h 29, 20 03 , ar ou nd 8:3 0 p.m. , he ob se rv e d a c ar p ark e d in a

fi e ld

acr oss the street f

rom the chur ch. He then noticed the same car pull into the churc h parking lot. Five minutes later, while insi d e h i s home, Mr. Dunlap he ard two or three g unshots and looked out the front window. From the fr ont window, he saw a black male rummag ing thr oug h the bac kseat of the

c ar. Mr . Dun lap the n he ard mor e g un sh ots fr om t he ba c k o f h is h ome . H e we nt t o th e ba c k o f h is home and looked out the window. Fr om the window, he sa w the victim and anothe r man “ having a commotion,” which r esulted i n the vi ctim being shot. After calling 911, he re turned to the ba ck-2-

window and sa w the victim holding his neck, saying “ they ’re killing me, [a]nd I ’ve be en shot.” Mr. Du n l a p a l s o s a w a gu n m an , we ar i n g a d ar k co l o re d p u ff

y j ac k et , ru n ar o u n d t h e h o u s e c arry i n g a shotgun in pursuit of the vic tim. After the g unman and the vic tim dis appea red f rom view, Mr. Du n l ap h ea rd “m o re gu n s h o t [ s ]
, b u tl o u d ergu n s h o t s

. ” M r. Du n l ap t h en s aw a p er s o n ru n t h ro u gh his front y ard carry ing what he thought was a shot g un. Howeve r, Mr. Dunlap could not tell i f the person c arry ing a

shotgun in the f

ront y ard w as the g unman he sa w in the bac ky ard.

B ob bie Stu dd ardte sti fi e d th a t aro un d 8 :30 p. m. he a ndhis wi fe he ardno ise s o uts ide . Sh ortly the re a ft e r, so me on e sta

rt e d ba ng ing on his fr on t door

. Af te r he op e ne d th e do or , h e sa w the vic tim ble e din g . The vic tim , who wa s ble e din g , sai d he ha d be e n sho t and re qu e ste d he lp. At that mo me nt, another man, wea ring a blac k puffy jacke t with a pull ed-up hood, appea red a round the c orner

of the house with a shotgun and shot the victim. I n response , Bobbie Studdard shut the door and w ent for his ow n g un . Wh ile he wa s g e tti ng his g un , he he ardmor e sh ots a ndsa w s ome on e ru nn ing a c ro ss his lawn towards the Methodist church.

Michae l Studdard testified that around 8:30 p.m. he he ard g unshots, which s ounded like a small caliber pistol
, fired in rapid succession. When he looked outside, he saw a “sma ller per son”

we ari ng a “ big fl ow ing c oa t” ru nn ing a c ro ss the ba c k o f the lot . M ome nts la te r, he sa w the vic tim run up to the fr ont porch of his pa rents’ house and b an g o n t h e d o o r. Ac cording to Michael Studdard, the victim was ca lling for help. As Michae l Studdard approa ched the vi ct i m , a sm aller black male came around the corne r of the house and shot the victim. At that time, Michae l Studdard ran ba ck into his house. He then hear d more shots and the squealing of tires. He looked outside and

saw a dark colore d car drive off. Michae l Studdar d estimated that the smaller blac k male we ighe d

abo ut 1 50 po un ds

.

Derr ic k a n d So n ia D r e w e r y b o th te s ti f ie d th a t th e y li v e d n e ar th e Stu d d ar d s a n d hear d g unshots. Mr

. D r e w e r y

s tate d th a t th e f

ir s t g u n s h o ts s o u n d e d f

a in t, b u t l a te r , h e h e ar d “ s h o tg un blasts in succe ssion.” After looking outside, Mr. Dre wery saw two g uy s running around in the y ard two houses down. Af

ter Mr. D rew ery

left hi s house, he sa w a blac k male standing over a nother man. The blac k male wa s scre aming “g ive me y our key s.” Acc ording to Mr. Dre wery , the black ma le was

wea ring a white t-shirt, blue jeans, and tennis shoes. He was medium build, about five-ele ven and about 175 pounds. When Mr. Dre wery approa ched the Studdard’s y ard, he asked w hat was g oing

o n , an d t h e v i ct i mre s p o n d ed
, “t h ey j u s t s h o tm e. ” A fe w s ec o n d s l at er , a b l ac k m al e w ea ri n g a “lar g e over stuffed c oat” a pproac hed the victim with a shotgun. Mr. Dre wery stated that he ra n back to his house to avoid being shot, he ard a shot, turned ar ound and saw the two black ma les run to the

car and drive off. Mrs. Dre wery ’s testimony was simil ar to Mr

. Dre wery ’s testimony with t he

e xce pti on that Mr s. Dr e we ry ob se rv e d th e g un ma n w e ari ng a n o ve rs tuf fe d c oat w ith a

ho od . M rs

. Dre wery also testified that she be lieved the g unman was smaller than the other

man.
Donald Ky les testified that he had known the defe ndant for about eig ht y ear s. Ky les stated that the def

endant introduc ed him to the victim the day befor e the shooting

. Acc ording to Ky les, he and the de fenda nt hatched a plan to rob the victim of money and drug s. I n order

to convi nce the victim to joi n them, the defe ndant asked the victim if he wanted to he lp them rob someone they had-3-

kidnappe d ea rl i er and plac ed in a small aba ndoned shed in Millington. The victim ag ree d and broug ht a shotg un with him. Ky les rec alled that the victim hande d the shotg un to the defe ndant who place d it in the backseat of the victim’s ca r.
Ky les testified that the victim parke d the car in the churc h parking lot because he could not drive the c ar into the fie ld where the shed wa s located. A s t h e d ef en d an t an d the victim walked toward the shed, Ky les beg an sear ching the victim’s c ar for money and drug s to ste al. He then hea rd g unshots. Accor ding to Kyles, the def endant r an bac k to car , p o i n t ed a pis tol at him, gra bbed the “big g un” and r an af

ter the vic tim. The defe ndant then shot the victim on the porch of a house a nd
y e lle d a t K y le s to g e t th e ke y s. Ky le s st a te d th a t he tho ug ht the de fe nd a nt w ou ld s ho ot him if he did not ge t the key s, so he ran over to the vi ctim and got t he key s from the victim’s pocket. Ky les and the def endant lef t the are a with the victim’s ca r. Whil e they

wer e driving awa y , the def endant a sked Ky les why

h e did not help shoot the victim and warne d Ky les not to cross him. L ater , they

aba nd on e d the vic tim ’s c ar on B ic kf or d Stre e t. Ky le s des c ri be d the vic tim ’s c ar a s a Gr a ndMa

rq uis
, brownish in color.

Acc ording to Ky les’ testimony
, he was wea ring black jogg ing pants and a g ray shirt, and the defe ndant was w earing a black bubble coat with a hood. Ky les denied seeing any wea pon other than the victim’s shotgun until the def endant pulled the pistol o n h i m

. On cross-examination, Ky les insisted that he did not know the victim was g oing to be killed.

P o l i ce O ffice r D. B owling te stified that he re sponded to the shooting and beg an an investigation of the crime scene

. At the crime scene , Offic er Bow ling observe d the victim ly ing on the po rc h o f t h e Studdard’s r esidenc e. Ac cording to Office r B owling, the Studdards and the Dre wery s were interviewe d and evide nce w as collecte d. Police Serg eant Scott W rig ht testified that he participated in the investi g ation. He r eca lled that the police f ound the victim’s vehicle pa rked on B ic kf or d Stre e t. H e a lso re c a lle d th a t th e de fe nd a nt’ s a rr e st tic ke t lis te d th e de fe nd a nt a s f ive fe e t, four inche s tall and weig hing 140 pounds. Police Serg eant J ohn Mills t estified that he pa rticipated in the crime sc ene inve stiga tion. He reca lled that police re cover ed four shotgun she lls from the crime sc ene. H e also re called that a black puffy jacke t w as rec overe d from a dumpster . Howeve r, he c ou ld n ot r e c a ll w ho le d h im t o th e ja c ke t.

Police Detec tive Ray Sides te stified that he led the investigation into t he victim’s homicide. Detec tive Sides reca lled that sever al d ay s after the shooting, D onald Ky les g ave a statement ind ic a tin g his inv olv e me nt. Af te r t a lki ng wi th Ky le s, De te c tiv e Sid es in te rv ie we d th e de fe nd a nt. P ri or to the int e rv ie w, De te c tiv e Sid e s a dv ise d th e de fe nd a nt o f h is Miranda r ig h ts , a n d the defe ndant sig ned a w aiver of rig hts form. Dete ctive Sid es s t ated that the interview with the defe ndant was r ecor ded. The rec ording was play ed befor e the jury and a tr anscript of the rec ording

was a dmitted as an exhibit in the case

.

Ac c or din g to the de fe nd a nt’ s r e c or de d s ta te me nt, the de fe nd a nt andthe vic tim me t in ja il three y ear s ag o. After

they both go t o u t o f jail, they started doing business toge ther. L ater , the victim beg an dating t h e d ef en dant’s sister a nd living at the de fenda nt’s mother’s house. T he-4-

defe ndant beg an tra nsporting dr ug s for the vic tim. W hile making a drop- off, he was force d to throw

awa y a lar g e amount of dope beca use the “police g ot behind him.” He wa s eventua lly stopped by police and w ent to jail for nine months for violating his pro b at i o n

. W h en h e got out of jail, the vic tim tol d h im tha t he expe c te d re imb ur se me nt fo r the los t dru g s. Th e vic tim tol d h im t o “ se ll h is do pe fo r h im f

or fr e e ,” oth e rw ise , th e vic tim wo uldha rm the de fe nd a nt an d his fa mil y . The vic tim

a lso a sk e d th e de fe nd a nt to sh oo t his bo ss, bu t the de fe nd a nt tol d the vic tim that he wo uldno t do it

a ndc a lle d the vic tim ’s bo ss t o w arn him . T he de fe nd a nt a lso a sk e d th e vic tim ’s bo ss f or $1 ,5 00 to move his family . The de fenda nt taped the conver sation, but the vi ctim somehow g ot a hold of the tape. The victim then told the de fenda nt that if he said anything, the vic tim would kil l the defe ndant and his family . The victim also aske d the def endant if Ky les would shoot his boss.

Acc ording to the d e f

e ndant’s re corde d statement, the victim ca lled the def endant on Saturday and tol d him to come to the hous e and to bring Ky les. The victim wante d the def endant a nd Ky les
to a c c ompany hi m to pi c k u p d ru g s f ro m a n a ba nd on e d s he d in a

fi e ld i n M ill ing ton . T he vic tim asked the defe ndant to help him load the g uns. The victim ha d a 12 g aug e shotgun a nd a .25 ca liber

a uto ma tic pis tol . A ft e r the de fe nd a nt pu t the sh otg un in the ba c ks e a t wi th Ky le s, the y a ll d ro ve to Milli ng ton in the victim’s car. When they rea ched the field where the abandone d shed wa s located, the victim a sked the defe ndant to he lp him “g et the dope,” and told Ky les to stay in the car . When they rea ched the shed, the victim pushe d the defe ndant into the shed and told the defe ndant that he was g oing to die f

or try ing to se t him up. They started fighting

. During the fig ht, the victim dropped the pistol, a n d th e d e f

e n d a n t p ic k e d it u p a n d s h o t th e v ic ti m. T h e v ic ti m r a n o u t o f th e shed and
tow ard s so me ho us e s. Th e de fe nd a nt r a n to the c ar, gave the .2 5 c a lib e r p ist ol t o Ky le s, a ndtol d Ky les that he wa s g oing to kill the vi ctim beca use t he victim tried t o kill him . The de fenda nt then g rabbe d the shotgun, chase d afte r the victim, a nd shot him. Afterwa rd, Ky les took the .25 ca liber pistol and got the ke y s from the victim. The de fenda nt thought he he ard more g unfire. L ater , Ky les drove the victim’s car , dropped the defe ndant off, and got rid of all the e vidence including the g uns and the c lothes they

wore

. The de fenda nt claimed that Ky les wore a big black bubble ja cket a nd he

wo re a sma ll b la c k b ub ble ja c ke t.

Detec tive Sides stated on cross-e x amination that the police ne ver f o u n d any spent shells from

a small-caliber handg un and rec overe d no wea pons. Detec tive Sides de nied telling the d ef en d ant that he could avoid a murder char g e if he confessed. He also denied using any forc e or thre ats to g et a conf ession from the de fenda nt.

Dr. Te resa

Campbell, a for e n s ic p atholog ist, testified that the victim died of multipl e g unshot wounds. Dr. Campbell explained that the victim’s injurie s indicated he was shot w ith both a shotg un

a n d a s ma ll e r

- c a li b e r

w e ap o n

. D r

. O

. C. Sm ith
, a n o th e r f o r e n s ic p a th o lo g is t, te s ti f ie d th a t s e v e r al bu lle ts r e c ov e re d f

ro m th e vic tim ’s bo dy

we re , inhis op ini on , . 22 c a lib e r b ull e ts.

Odell Thorton testified t hat he was the victim’s employ er f or about thre e y ear s. He a nd the victim had a g ood rela tionship. The victim called him “Dad” and o ften socia liz ed with him after work. Mr. Thorton stated that one time the victim stay ed with him for three wee ks. M r. T horton also stated that he k n ew t h e d efendant. Mr. Thorton rec alled re ceiving a phone c all from the-5-

defe ndant on Marc h 26, 2003. The de fenda nt exp l ai n ed t h at he wa s out of jail. He then told Mr. Thorton that the victim ha d place d a bounty on Mr. Thorton’s hea d. The de fenda nt claimed that he had a tape rec ording of it a nd asked Mr. Thorton to me et him somew here

. The defe ndant also asked Mr . T ho rt on to b ri ng $1 50 0 in exch a ng e fo r the tape a nd inf orma tio n on the vic tim ’s wh e re abo uts

. Mr. Thorton told the def

endant he would think about the defe ndant’s proposa l and g et bac k in touch wi th h im. Mr . T ho rt on the n c a lle d th e Col lie rv ill e Pol ic e De pa rt me nt.

Mr. Thorton testified that the victim ne ver thre atene d him. Mr. Thorton also testified that the victim had a g ood reputa tion in the community

. Mr. Thorton stated that he never rec eived a copy of the ta pe re ve a lin g that the vic tim ha d put a bou nty on his he a d. Mr . Tho rt on re c a lle d th a t he did not give much cr edenc e to the de fe n d ant’s story about the bounty

and thoug ht the defe ndant was try ing to make some money afte r g etting out of

jail. On cross-e x aminati o n , M r. Thorton testified that he re c la ime d a

ve hic le fr om the vic tim

a ft e r the vic tim

sto pp e d ma

kin g pa y me nts

.

Detec tive Brian Kier sey

of the Collierville P o lice De partment testified that after being
contac ted by

Mr. Thorton, he c alled the de fenda nt and aske d to hear the tape. T he def

endant r efuse d to meet and sa id he would contac t him later. The d ef en d an t never

did. The next day , Detec tive Ki e rs e y c a lle d th e de fe nd a nt a g a in. At thi s tim e , the de fe nd a nt tol d him that he wa s w ith the vic tim and could not meet. Dete ctive Kier sy stated that the de fenda nt appea red e vasive whe n contac ted. Detec tive Kierse y

rec alled that over

the wee kend he he ard ne ws that the victim had bee n killed.

Samantha Hay es, the defe ndant’s sister, testified that Donald Ky les had a bad reputa tion for telling the tr

uth. She stated that the black puffy coat be longe d to Donald Ky les, and she ha d never seen he r brother

wea r Ky les’ coat. Accor ding to Ms. Hay es, the victim was d at i n g h er s i ster and stay ing at her mother’ s house. Ms. Hay es dec lare d that the victim had a poor re p u t at ion for peac efulne ss. Sidney

Hay es, the de fenda nt’s brother, testified similarly . Sidney Hay es adde d that the victim used to drive a tr uck owned by Mr. Thorton, and the victim got ang ry when Mr. T horton took the truck.

T h e d e f e n d a n tt e s t i f

i e d t h a th e k n e w t h e v i c t i m b e c a u s e t h e v i c t i m w a s l i v i n g w i t h h i s f a m i l y. The de fenda nt stated that he de livered dr ug s for the vic tim. The defe ndant said t h at he had been friends w ith Donald Ky les for many y ear s. The def

endant a lso mentioned that the victim introduced him to M r. Th orton . The de fe nd a nt sa id the vic tim a ndMr . T ho rt on ha d a

g oo d r e la tio ns hip un til Mr . T ho rt on too k a

truc k f ro m th e vic tim

.

Th e de fe nd a nt te sti fi e d that he wa s a rr e ste d w hil e a tte mpt ing to d ro p o ff dr ug s f or the vic tim

. He g ot rid of t he drugs before he was stopped but ended up in jail as a result of a probation violation. When he g ot out of jail, he was told by the victim that Mr. Thornton had taken the victim’s truck. Th e vic tim

wa s a ng ry

abo ut the situa tio n an d ask e d the de fe nd a nt to kill Mr . Tho rt on . The vic tim
t o l d t h e d ef

en d an tt o k i l l M r. T h o rt o n b ec au s e t h e de fe n d an t o we d t h e vi ct i mm o n eyfo r t h e d ru gs he had thr own away

. The defe ndant did not want to kill Mr. Thorton but thoug ht that Ky les might
want the job. L ater , the defe ndant and Ky les hatche d a plan to f ool the victim into believing t hat Ky le s w ou ld kil l Mr. Th orton

. Th e de fe nd a nt wo uld tape the vic tim se tti ng up the job wi th Ky le s,-6-

the n th e de fe nd a nt a nd Ky les w ou ld r ob the vic tim of dr ug s a nda sk

Mr . T ho rt on fo r $ 15 00 in exchang e for

the taped conver sation. Ultimately
, the defe ndant planned to use the tape as evide nce to send the victim to jail for try ing to kill Mr. Thorton. Ho we v er , af t er the def

endant tape d the

conver sation and ca lled Mr. Thorton, the tape “came up missing.”

The de fenda nt testified that when the police initiallycalled him, he tol d them that he had a tape but it was missing. Subseque ntly , the def endant lea

rned that Ky les told the victim about the tape a nd somehow the victim g ot the tape. Thevictim then approache d the def endant a nd told the defe ndant that he kne w the def endant wa s try ing to se t him up. The victim told the def endant that he expected the defe ndant to kill Mr. Thorton; otherwise, the victim would ki l l the def endant’ s family . Acc ording t o t he def endant, he did not call the police ba ck bec ause the victim had d i s co v er ed h i s p l an an d th re at en ed h i s fa m i l y th e d ayb ef

o re t h e s h o o t i n g.

The de fenda nt testified that the day of the shooting , the victim called him and told him to be home. L ater that evening
, the victim woke the de fenda nt from sleep a nd told the defe ndant to follow him out to hi s car

. The defe ndant g ot into the car and observe d Ky les sitti ng in the backse at, wea ring a “buf f,” ove rstuffe d jacke t and holding a shotgun. The defe ndant asked about t he shot g un, and the victim responded, “[w]e g oing to pic k up some dope.” The de fenda nt then observe d the small .25 caliber pistol t ucked in the vic tim’s pants. While en route, the victim stopped at a g as station and

we nt ins ide

. Th e de fe nd a nt a sk e d Ky le s wh a t wa s g oin g on a ndKy le s said, “ e ve rythi ng is s tr a ig ht, man. He f

ix ing to pa y

me the other

half a bout killi ng his boss man.”

The de fenda nt testified that the victim drove to the fie ld where t h e ab andoned she d was located but ha d to park the c ar i n t h e ch u rc h p arking lot because the field wa s too muddy . After parking the car , the victim a sked the defe ndant to a ccompa ny him to the shed. T h e d efendant

c omp lie d, a ndhe a ndthe vic tim wa lke d a c ro ss the str e e t to wa rd s th e sh e d. Ky le s st a y e d b e hin d in the ca r holding the shotg un. When the defe ndant and victim rea ched the shed, the victim “put the g un a g a ins t [th e de fe nd a nt’ s] he a d a ndtol d [hi m], m oth e r f ** ke r y ou tr y ing to s e t me up . D on a ld [Ky le s] a lr e a dy

tol d me .” Th e de fe nd a nt den ied the vic tim ’s a c c us a tio ns , b ut h e a ndthe vic tim started to fig ht. Whi le fig hting, the g un dropped, and the defendant picke d up the g un and starte d shooting. The victim fled out of t he shed. The defenda nt stated t hat he “shot the g un up” and sa w the vic tim g e t up a nd

ru n b a c k to the c ar. At

the c ar, the de fe nd a nt t oldKy le s wh a t ha pp e ne d. Whil e talking to Ky les, the defendant and Ky les saw the victim knocking on the door of Studdard’s house

. The de fenda nt asked Ky les “whe re the key s at? ” Ky les responde d by jumping out of the c ar a nd shooting the vic tim with t he shotg un.

The defe ndant testified that he shot at the victim with the .25 caliber pistol bec ause he was afr aid for his life. H e also stated he was not sure if he hit the victim w h en he starte d shooting beca use the shed was dark. The defe ndant denied shooting the victim with the shotgun a nd stated that he took off his ja cket be fore taking the key s from the victim. The de fenda nt asserte d that he

wore a white t-shirt unde rneath his j ac k et

. T h e d efe ndant said he dr ove the victim’s ca r fr om the churc h parking lot because Ky les was not familiar with Milli ng ton. The defenda nt claimed that he-7-

lied in his original state ment to police bec ause he and Ky les had made a pac t not to tell on each oth e r. Th e de fe nd a nt s a id tha t he c on fe sse d b e c a us e po lic e c ho ke d h im a ndthr e a te ne d h im.

Ba sed upon the e vidence prese nted, the jury found the de fenda nt guilty of sec ond degree

mur de r. Th e tr ia l c ou rt

se nte nc e d th e de fe nd a nt t o tw e nty -thr e e y e ars in c on fi ne me nt.

II. AN AL YSI S

A. M ot ion to Suppr e ss

The de fenda nt first challeng es the admissi bility of hi s statements to police. Specific ally , the defe ndant ar g ues th at t he trial c ourt err ed in admitting his statements to police be cause they wer e obtained in violation of his constituti onal rig hts. W e disag ree

.

Both the U nited States and Tenne ssee Constitutions protect the ac cused f rom compelled self-inc rimination. See U.S. Const. amend. V; Tenn. Const. art. I , § 9. As a re sult, gove rnm ent authorities ar e prohibited fr om using stateme nts made by the ac cused dur

ing c ustodial interrog ation unless the ac cused has been previously advised of his or her constitutional right ag ainst compulsory

se lf inc ri min a tio n a nd ri g ht to a n a tto rn e y , a ndthe a c c us e d kno wi ng ly a ndvo lun tari ly

wa ive s th os e rig hts. See Miranda v. Arizona , 3 84 U. S. 4 36
, 44 4 (1 96 6)

. Whe the r wa ive r of a ri g ht i s v olu nta

ri ly and knowing ly

made is dete rmined by

the total i t yof the c ircumstance s under whic h the rig ht was waived. See State v. Middlebrook s , 840 S.W .2d 317, 326 (Tenn. 1992) . Howeve r, “[a] defenda nt’s subjectiv e p e r c e p ti o n a lo n e is n o t s u f f ic ie n t to ju s ti f

y a c o n c lu s io n o f in v o lu n ta r in e s s in the

c on sti tut ion a l se ns e . Rathe r, c oe rc ive po lic e a c tiv ity is a ne c e ssa ry pr e dic a te to f

ind in g t hat a confe ssion is not voluntary .” Sta te v . S mi th
, 9 3 3 S. W. 2 d 4 5 0
, 4 5 5 ( T e n n

. 1 9 9 6 ) ( c it ations and internal quotations omitted).

When review ing the trial court’s decision on a mot ion to suppress, this court conduc ts a de novo revie w of the tria l court’s c onclus i o n s o f l aw and application of law to fac ts. See State v

. W alton , 41 S. W

. 3 d 7 5, 81 (Tenn. 2001) . Howeve r, the trial c ourt’s finding s of fa ct ar e pre sumed

corr ect unless the e vidence contained in the r ecor d preponde rate s ag ainst them. See State v . Daniel
, 12 S.W .3d 420, 423 (Tenn. 2000) . “Que stions of credibility of the witnesse s, the weig ht and value of the e vidence , and re solution of conflicts in the evidenc e are matters entrusted to the trial judge as the trier of

fac t.” State v. Lawrence
, 1 5 4 S

. W

. 3 d 7 1
, 7 5 (T en n

. 2 0 0 5 ) ( q u o t i n g State v. Odom , 928 S.W. 2d18 , 2 3 ( Te nn . 1 99 6) ). Mo re ov e r, the pr e va ili ng pa rt y is en tit le d to the str on g e st l e g iti ma te view of the evidenc e and a ll rea s o n ab l e and leg itimate infere nces that may be dra wn from that evidenc e. State v. Hick

s , 55 S.W .3d 515, 521 (Tenn. 2001)

. At the suppression hea

ring , Detec tive Sides testified that the defe ndant was inter viewed a s

a su sp e c t. P ri or

to the int e rv ie w, De te c tiv e Sid e s a dv ise d th e de fe nd a nt o f h is Miranda rig hts, and the def endant sig ned and dated a wa iver of rights form. The def endant told Dete ctive Sides that he had a sixth gra de educ ation. As a re sult, Detective Sides re ad the waiver of rights f orm to the defe ndant in addition to allowing the de fenda nt to read it.-8-

Detec tive Sides testified that no promises or t hreats wer e made to the defendant. Ac cording to Detec tive Sides, the defe ndan t told severa l conflicting stories befor e admitting that he shot the vic tim . H owe ver, arou nd 4:0 0 p .m. the de fe nd a nt g a ve a state me nt a dmi tti ng g uil t, andthi s sta t em en t wa s rec orded. D etec tive Sides stated that befor e the de fenda nt ga ve this statement, the de fe nd a nt w a s a g a in a dv ise d o f h is Miranda ri g hts , to wh ic h h e re sp on de d, “ Ye s si r. I t’ ll h e lp m e out? ” De tective Sides e x plained that the def endant’ s response “ I t’ll help me out” re lated to an e arlier

conver sation about g etting the g uilt off the defe ndant’s chest, letting every one know what happene d, and closure

. Detec tive Sides reiter ated that no promises wer e made to the defendant in ex chang e for g ivi ng a state me nt.

The de fenda nt testified that during his interview he initially told the police offic ers that he “didn’t do nothing .” Howe ver, he g ave a statement admitting that he shot the victim with a shotgun afte r “the y

choked [him] out.” The de fenda nt al s o s ai d another office r told him that he was not g oi ng to g e t a

mur de r c ha

rg e ; he wo ulddo thr e e y e ars a ndg o h ome . A c c or din g to the de fe nd a nt, the po l i c e s t o p p e d t h e t ap e r e c o r d i n g o f t h e i n t e r v i e w i n o r d e r t o c h o k e h i m a n d c a l l h i m na me s. Consequently , he wa s afr aid and “ wanted to g et away from all thre e of [the offic ers].”

The de fenda nt testified that he ende d up g iving a n untruthful statement beca use the police promised “I

do three y ear s and I

g et out.” The defe ndant cl ai m ed he could not re ad and de nied

un de rs ta nd ing his Miranda ri g hts . O n c ro ss- e xami natio n, the de fe nd ant a dmi tte d th a t he ini tia lly lied to polic e ab o u t h i s k n o wledg e of the crime. The defe ndant also admitted that he ha d been

arr ested “ a whole lot of times” a nd “p l ed g uiltya lot of times.” Still, t he def endant de nied

un de rs ta nd ing his Miranda rig hts be cause he had “neve r been in no detec tive office befor e [and he] ain’t never been no murder char g e bef ore.” During cross-e x amination, the def endant a dmitted that he shot the victim, but he denied shooting the victim with the shotgun.

At the conc lusion of the hearing, the trial co u rt n oted that the def endant indicated he

un de rs too d h is Miranda rig hts by signing the waiver of rig hts f orm and by

verba l acknowle dg ment pr ior to g iving hi s st ate ment to p oli c e . T he tr ia l c ou rt a lso no te d th a t th e de fe nd a nt h a d a pa st

c ri min a l hi sto ry a nd arr e st re c or d. Th e tr ia l c ou rt fu rthe r n ote d th a t th e de fe nd a nt r e sp on de d w e ll
to questions posed by both attorney s at t he suppression hearing . There fore , the trial court found that the de fe nd a nt u nd e rs too d h is Miranda rig hts. I n addition, the trial court f ound no cre dible evidenc e that the def

endant wa s coer ced by

police.

Upon review of the record, we conclude that the evide nce doe s not preponder ate a g ainst the
tr ia l c ou rt ’s find ing s th a t th e de fe nd a nt kno wi ng ly a ndvo lun tari ly

wa ive d h is Miranda rig hts and fre ely g ave statements conce rning his involvement in shooti ng the victim. Accor dingly , we hold that the tr ia l c ou rt

pr op e rl y de nie d th e de fe nd a nt’ s mo tio n to su pp re ss, a ndthi s is su e is w ith ou t me ri t.

B. Su ff iciency of the Evid ence-9-

The defenda nt next challeng es t he sufficiency of t he convic ting e vidence . Specifica lly , the defe ndant asserts that the evidenc e wa s insufficient bec ause “ the onl y proof of who murder ed [the victim] comes fr om the illega lly obtained stateme nt of the def endant on Ma y

1, 2003.”

Ou r r e vie w b e g ins wi th the we ll- e sta bli sh e d rul e that onc e a jury fi nd s a de fe nd a nt g uil ty , h is or her p re s u m p t i on of innoce nce is re moved and r eplac ed with a pr esumption of g uilt. State v. Evans , 838 S.W .2d 185, 191 (Tenn. 1992)

. There fore , on appea l, the convicted de fenda nt has the burden of demonstrating to this court why the evidenc e will not support the jury ’s verdic t. State v. Car ru the rs , 3 5 S. W.3 d 5 16 , 5 57 -5 8 ( Te nn . 2 00 0) ; Sta te v. Tugg le , 639 S.W .2d 913, 914 (Tenn. 1982). To mee t this burden, the defendant must establish that no “rational trier of f act” could have found the e ssential elements of the crime be y ond a re asonable doubt. J ac k so n v . V irg ini a , 4 43 U. S. 30 7, 31 9 ( 19 79 ); State v. Ev ans , 1 0 8 S

. W

. 3 d 2 3 1
, 2 3 6 ( T e n n

. 2 0 0 3 ) ; T e n n

. R

. A p p

. P

. 1 3 ( e )

. In
contra st, the jury ’s verdic t a pproved by the trial judge acc redits the state’s witnes s es an d resolves all conflicts in fa vor of the sta te. Sta te v . H ar ris , 8 39 S.W. 2d54 , 7 5 ( Te nn . 1 99 2) . T he state is entitled to the strong est leg itimate view of the evidenc e and a ll reasona ble infer ence s which may be draw n from that evide nce. Car ru the rs , 35 S.W .3d at 558. Questions conce rning the cr edibilityof the wi tne sse s, con fl ict s in tria l te sti mon y , th e we ig ht andva lue to b e g ive n th e e vid e nc e , a nda ll fac tual issues raised by

the evidenc e ar e re solved by the trier of

fac t an d n o t t h i s court. State v. Bland , 958 S.W .2d 651, 659 (Tenn. 1997 ). W e d o not attempt to re-we igh or re- evaluate the evidenc e. Sta te v . R e id , 91 S.W .3d 247, 277 (Tenn. 2002) . L ikewise, we do not replac e the jury ’s infere nces dr awn f

rom the circ umstantial evidence with our own infer ence s. Id

.

I n Tenne ssee, a

conviction may

not be based solely

upon a def

endant’ s confe ssion. State v. Sm ith
, 2 4 S

. W

. 3 d 2 7 4
, 2 8 1 (T en n

. 2 0 0 0 ) ( ci t i n g As hb y v . S tat e , 139 S.W . 872, 875 (Tenn. 1911) ). Additional corrobor ating evidenc e is requir ed wh i ch, indepe ndent of the de fenda nt’s confe ssion, tends to establish the c or

pu s d e lic ti of t he off

ense c harg ed. Id . T hete rm c or pu s de lic ti ref

ers to the body of t he crime. Sta te v . She ph e rd
, 86 2 S.W. 2d 55 7, 56 4 (T e nn . Crim. Ap p. 19 92 ). To e sta bli sh the c or pu s de lic ti for a homicide, t he st ate must prove the death of a human being
, and that someone is criminally

responsible for

this death. Se e Sta te v . S he ph e rd
, 902 S.W .2d 895, 901 (Tenn. 1995)

. The c or pu s de lic ti may be established by both dir ect and cir cumstantial evidenc e. Sta te v . E rv in , 731 S.W .2d 70, 72 (Tenn. Crim. App. 1986) . Furthermore , the question o f wh et h er t he state ha s sufficie ntly

proven the c or

pu s d e lic ti is a question for the jury

. Id . at 71.

Whil e the c or

pu s de lic ti c a n n o t b e b a s e d s o l e l y u p o n a d e f e n d a n t ’ s c o n f

e s s i o n , “ [ o ] n l y slight evidenc e of the c or

pu s de lic ti is nece ssary to corr oborate a confession and thus sustain a convic tion.” Id . a t 72 (e mph a sis a dd e d). Th e c or ro bo ratin g e vid e nc e is s uf fi c ie nt t o s us ta in a

c on vic tio n if

“ it
te nd s to c on ne c t th e de fe nd a nt w ith the c omm iss ion of the of fe ns e , a lth ou g h the e vid e nc e is s lig ht, and entitled, whe n standing by itself, to but lit tle consideration.” Ri c k e tts v . S tat e , 241 S.W .2d 604, 606 (Tenn. 1951)

. “A confe ssion may sustain a conviction whe re the re is other evidenc e suff

icient to show the commission of the crime by someone.” Tay lor

v . S tat e , 479 S.W .2d 659, 661-62 (Te nn. Crim. App. 1972).-10-

Af te r c on sid e ri ng the ev id ence in the lig ht m os t f a vo ra ble to the state , w e c on c lud e that a rational trier of fac t c ould have f ound the def

endant g uiltyof sec ond deg ree murder. Contra ry to the defe ndant’s ar g ument on appea l, his confession was c orrobor ated by other indepe ndent evidenc e. As prev io us ly

no te d, the de fe nd a nt’ s c on fe ssi on e sta bli sh e d th a t he sh ot the vic tim wi th a sma llcaliber handg un, then went to the vi ctim’s car , g rabbe d a shotg un, chase d afte r the victim and shot the victim with the shotgun. I n this case, the te stimonyof Dona ld Ky les corr oborate s the def endant’ s enti re confession with little varianc e. I n particula r, Ky les testified that he he ard g unshots, then observe d the def

endant g rab the shotgun and shoot the victim. Also, severa l witnesses testified that the g unman was a

smaller blac k male we aring a dar k, puffy jacke t. Whi le the def endant testified at trial t h at Ky l es shot the victim with t he shotg un, the evidenc e esta blished that the defe ndant was smaller and shorter than K y les. Furthermore , the def endant’ s confe ssion is cor roborated by

evidenc e establishing that the victim was shot with both a small ca liber handg un and a shotg un and died f rom multipl e g unshot wounds. I ndeed, the defe ndant’s own testimony at trial establishes that he shot the victim with a small caliber ha ndg un. T o s u s t ain the def endant’ s conviction for se cond deg ree murder, the state wa s require d to prove that the def endant knowing ly

killed the victim. Tenn. Code Ann. § 39-13-210( a)( 1). I n this particular c ase, the corr oborating evidenc e suff iciently connec ted the def endant with the c ommissi on of sec ond deg ree murder. Consequently , the def endant’ s confe ssion was sufficie ntly corr oborate d and his sufficie ncy arg ument is without m erit.

III . C ON CL USI ON

We a f f irm th e tria l c o u r t’ s d e c is io n to a d mi t th e d e f e n d a n t’ s c o n f

e s s io n a n d c o n c lude that the evidenc e wa s sufficient to support the de fenda nt’s conviction. Acc ording ly
, the j udg ment of the trial court is af

firmed.

___________________________________ J .C. McL I N, J UDGE