# FILED
August 21, 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. 02C01-9712-CC-00460 Appellee, ) ) TIPTON COUNTY VS. ) ) HON. JOSEPH H. WALKER, III, JOHN MALCOLM JOHNSON, ) JUDGE ) Appellant. ) (Rape of a Child)

FOR THE APPELLANT : GARY F . ANT RIC AN (At Trial and

On Appeal) District Public Defender DAVID S. STOC KTON (At Trial and

On Appeal) Assistant Public Defender 118 E. Market Street P.O. Box 700 Somerville, TN 38068-0700 KEMPER B. DURAND (Appe al On ly) One Commerce Square Twenty-Ninth Floor Memphis, TN 38103 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General J. WALTER FREELAND, JR. Assistant

District Attorney

General 302 E. Market Street Somerville, TN 38068

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 It is the policy of this Court not to reveal the names of minor victims of sexual

abuse. 2 OPINION

The defendant, Joh n Malcolm J ohnson, was convicted

by a Ti pt on County jury of one (1) count of rape of a c hild, and the trial court sentenced him to fifteen (15) years . On appe al, defe ndant pr esents th e followin g issues f or our revie w: (1) whether the trial

court erred in denying

defendant’s request for a continuance; (2) whether the trial c ourt erred in finding that the victim was compete nt to test ify; (3) whether defendant was denied his right to a fair tri al due to th e racial com position of the ju ry; (4) whether the evidence w as sufficient to support the jury’s finding of guilt; (5) whether defendant was denied h is con stitutional rights to due process of law and agains t double jeopardy; and (6) whether the trial cour t erred in denying defenda nt’s moti on to suppress his statement given to law enforcement authorities. After a thorough review

of the record, we find no rev ersible error. Accor

dingly, the judgment of the trial court i s affirmed.

FACTUAL BA

CKGROUND

The defendant wasmarried to Janet Johnson, and they had three children. In the early morning

hours of November 9, 1996, Janet awoke and noticed that her bedroom door was closed. Since she had not closed the door, she decide d to checkon her children. When she went into her da ughters’ bedroom, her elev en (11) year old daughter, J.J. 1 , was not there. Janet w alked into the living r

oom and turned on a light. She saw defendant l ying on his back on the couch, and J.J. was sitting astride d efenda nt. Defe ndant was totally n u de, and his penis was partially erect. J.J. was w

earing only a pajama top. Janet took J.J. into a back bedroo m, and defendant followed th em.3

Defendant stated, “Janet, I’m sorry.” He then apologized to J.J. J.J. tes tified at trial that her father came into her bedroom during th a t particular

night. He brought her into the living r

oom and to ld he r to take off her underwear. He wasnot wearing any clothes. Defendant then laid on the couch on his back and told her to lay on top of him. She further testif ied as follows: Q. And do you know where your father’s penis was? A. It was in my vag ina. Q. Okay. Was it a little bit or a l ot in your vagina? A. A little bit.

. . . . Q. Did - - Wh en his penis was in your vagina, did it hurt you? A. Yes, sir. When her mother walked into the room, J.J. picked u p her underwear and went back to her bedroom. Investigator

Linda Gamblin with the C ovi ngton Police Department testified that on November 11, she spoke with defendant concerning the incident. She read defendant his Mi randa r ights, and defendant signed a form waiving those rights. She testified that defendant did not appear to be under the influence of a ny intoxicant

at the time of t he intervi ew. Defen dant the n gave a statement where he admitted that he took J.J. into the living room on the nig ht in quest ion, told J.J. to take off her underwear, and then told her to lay on top of him. How ever, i n the statement, defendant denied penetrating J.J. Defendant testifie d on his own behalf at trial. He s tated that he had been smoking crack cocaine and drinki ng beer on the night of the incident. He testified that when he returned home from band prac tice that night, he fell asl eep on the couch. He woke up, and Janet beg an accusi ng him of sexually assaulting his daughter. He testified that he could not reca ll what hetold Investigator Ga mblin on November

11 be cau se he was under the influence o f crack cocaine at the time. However, he denied penetr ating his daughter, J.J . He also intimatedthat his wife fabricated thi s incidentas a means to punish him for using drugs. He stated that4

she once told him, “[i]f I got back on crack, . . . she’ d make my life a living hell.” The jury returned a

guilty verdic

t for rape of a child. Def endant now brings this appeal as of right.

UNT IME LY MO TIO N FO R NE W TR IAL

Initiall y, we must note, as the defendant concedes, that his moti on for new trial was untimely filed. The judgment of convic tion was entered on August 29, 1997, and the motion for new trial was filed on October 27, 1997. A motion f or a new trial “shall be made . . . within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). This pro vision is mand atory, and the time for filing may

not be extended. Tenn. R. Crim. P. 45(b); see also State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997); State v. Dodson , 780 S.W.2d 778, 780 (Tenn . Crim. App. 1989). The thirty (30) day provision is juri sdictional, and an untimely motion is a nullity. State v. Martin , 940 S.W.2d at 569. Unlike th e unti mely filing of the notice of appeal, this Court does not have the a uthority t o waive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a). The defendant, ther efore, relinquishes

the right to argue on appeal any issues that were or should have been presen ted in the motion for new trial

. Martin , 940 S.W.2d at 569. However, thi s Court, in its discretion, may also take notice of an error which affects a substantial right of the defendant where it may be nec essary to d o substantial justice. Tenn. R. Crim. P. 52(b); State v. Givhan , 616 S.W.2d 612, 613 (Tenn . Crim. App. 1980). A. Denial of

Continuance Defendant firstly contends that the trial court erred in d e nying def endant’s request fora continuance due to the state’s alleged discovery violations. However, this issue is w

aived by d efendant’s fail ure to time ly f ile the motion for new trial. Martin , 940 S.W.2d at 569. Nevertheless, this Court has review ed the record and concludes that the trial cour t did not abuse its discretion in denying defendant’s request for a continuance. See State v. Hurley , 876 S.W.2d 57, 65 (Tenn. 1993); State v. Goodwin , 909 S.W.2d 35, 44 (T enn. Crim. App. 1995).2 In support of his argument that the victim was incompetent to testify, defendant complains t hat the victim was not able to answer many of defense counsel’s questions o n cross-examination. The victim was eleven (11) years old, and there was testimony that she hada learningdisability. However, many of defe nse counsel’s questions were convoluted, confusing, obscure and vague. The following excerpts are some of the questions asked by counsel: Q. If

that statement were untrue or part of it were untrue or y ou were unsure about that, would it be possible that you areunsure about

some of the other

things you’ve talked about here?

. . . . Q. Would

it be accurate and would I be s peaking correctly if what you’ re telling me right now is that a few minutes ago you sho

ok your hea

d no when he asked

you if you knew the diff

erence and you agree now that y ou don’t know the difference? Would that be true?

. . . . Q. Would

it b e acc urat e to say that wit h regard to some of the things y

ou’ve said today

th at yo u’re not sure whether you’ve been telling the truth about all of them or not ? Would that be accurate?

. . . . Q. Let

me rephrase that. Am I -- Do you -- Can you give me an explanation about whether or not this might have been a dream or i t ma y have been - some of the things y

ou said today could be inaccurate or not true? Is that possible?

. . . . Q.
. . . Well, is it pos sible som etimes that your feelings are productsof dreams

or incorrect memories of what happened? As appellate judge

s we confess our i

nability to comp rehend the mean ing of some of the

se questions. We fail to

understandhow an eleven (1 1) year old child with a learn

ing disability could be expected

to respond to such q

uestions. 5 B. Victim’s Competenc y Defendant also alleges that the tr ial court erred in finding that the victim, J.J.,
was competent to testify. This issue is also w aived by the

untimely motion for new trial. Martin , 940 S.W.2d at 569. Nevertheless, after a rev iew of the victim’s testimo ny, we find no abuse of discretion by the trial cour t in find ing the victim competent to testif y. 2 See State v. Hallock , 875 S.W.2d 285, 293 (Tenn. Crim. App. 1993). C. Racial Compositio n of Jury3 The failure to time ly file a motion for new tria

l does not result in a

waiver of this issue. See State v. Patterson , 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997). 6 Defendant further asserts that he was denied his right to a fair trial due to the racial comp osition of the jury. See Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This iss ue is waived for the failure to timely file the motion for new trial. Martin , 940 S.W.2d at 569. Furthermore, defendant concedes that no Batson challenges were made during ju ry selection, and the issue is also waived for this reas

on. See Tenn. R. App. P. 36(a).

SUFFICIENCY OF THE EVIDENCE

In his nex

t issue , defe n dant challenges the sufficiency of the convicting evidence. 3 Defendant claims tha t there was no testimony that he penetrated the vict im, save th at of the v ictim, whom he allege s to be i ncompete nt to tes tify

. Therefore, he contends that no rational trier of fact could have convicted him of rape of a child. A. In determi ning th e suffici ency of th e evidence, this Co urt does not reweigh
or reevaluate the evidenc e. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the st ate's witne sses and resolves all conflicts

in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the evidenc e and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Court will not disturb
a verdict of guilt due t o the sufficien cy of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom are insufficie nt, as a matter of law, for a rational trier of fact to find the accused guilty bey ond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any7

rational trier o f fac t to have found the essential el ements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). B. Rape of a child is defined as “the unlawful sexual penetration of a victim by the defendant . . . if such victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a). Sexual penetration means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part o f a person's body . . . into the genital or anal openings of the victim's . . . body.” Tenn. Code Ann. § 39-13-501(7). C. The eleven (11) year ol d victim testified that her father brought

her into the living room and told her to take off her

underwear. Defendant then rec lined on the couch, totally nude, and told the victim to lay on top of him. He put his hands on her “behind” and then put his penis in her vagina. Furthermore, Janet Johnson’s testimony

corroborated the victi m’s testimony. She testified that she saw defendant lying nude on the couch with a partially erect penis. J.J. was sit ting astride defendant and was wearing only a pajama top. Although defendant clai ms that the victim was inc ompetent to testify, the trial court determined that she was competent. We have previously stat ed that the trial court did not abuse its discreti on in this regard. See State v. Hallock , 875 S.W.2d at 293. Moreover, defense counsel vigorously cr oss-examined the

victim, and the jurywas able to observe this examination an d assess the victim’s credibility accordin gly. It is beyond the province of this Court to second guess this assessment

. Indeed, questions concerning the credibility of the w itnesses, the weight and value to

be given the evidence as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). The evidence was sufficient for a rational trier of fact to find that defendant4 This issue is not waiv ed by th e unt imely f ilin g of th e moti on for new tr ial. If defendant’s argument on this issue is c orrect, a new trial would not be granted. The indictmentwould be dismissed. Untimely filingof the motion for new trial waives only the issues whichmay result in the granting of a new trial. State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). 8 sexually penetrated hi s daughter. This issue i s without merit.

DUE PROCESS AND DOUBLE JEOPARDY

Defendant next asserts that he w as denied his rights to due process of law and against double jeopardy when he was held without bond for three (3) days in the Tipton County Jail. He claims that his detention was punitive, not r

emedial. He, therefore, urges this Cour t to dismiss the subject i ndictment. 4 A. Background On Monday, November 11, defendant was arrested on the present offense. This was Veteran’s Day , a state ho liday. He w as brought before a magistra te on Tuesda y, November 12, for his initial appearance in General Ses sions Court where
an arrest warrant w

as issued. See

Tenn. R. Crim. P. 5(a). Durin g this proceeding, the court denied defendant bail. On Thurs day, November 14, the Gener al Sessions judge set bail, which w

as posted by defendant’s family tha t evening. Defendant was thereafter released. The trial court found that defendant’s de tention until a bond was set did not subject him to double jeopardy as the detention did not constitute “pu nishment” under the United States Constitution. The court also implicitly found that defendant
was afforded sufficient procedural due proces s, as he was

broug ht before a magistratewithin a day of his arrest. Therefore, the trial court denied defend ant’s motion to dismiss the indictment. B. Double Jeopardy The resolution of defendant’s double je op ardy claim turns upon the Tennessee Supreme Court’s recent holding in State v. Pennington , 952 S.W.2d 423 (Tenn. 1997). In Pennington , the Court recognized that jeopardy does not attach in a pre-trial proceedi ng. 952 S.W.2d at 422. The Court noted,9 to be put i n jeopardy, the defendant must be “s ubject to ‘criminal prosecution’ and put to trial.” United St ates v. Gri santi , 4 F.3d 173, 175 (2nd Ci r. 1993 ). The proceeding must be “essentially criminal” and constitute an action “i nt ended to authorize criminal punishment to vindica te pub lic justice.” Id. (citing Breed v. Jones , 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975), and United States ex rel Marcus v. Hess , 317 U.S. 537, 548-49, 63 S. Ct. 379, 386, 87 L. Ed. 443 (1943)). Id. If the purpose of detention is remedial, as opposed to punitive, then the double jeopardy clause is not implicated. Id. at 422-23; State v. Coolidge , 915 S.W.2d 820, 823 (Tenn. Crim. App. 1995). Pre-trial detention in order to “assure a defendant’s presence at trial” is a legitimate remedial pur pose. State v. Coolidge , 915 S.W.2d at 823. In the present case, the defendant w as detained for three (3) day s prior to his release on bond. Jeopardy did not attach at this point. Furthermor e, we agree with the trial court’s finding that defendant’s detention was not punitiv e i n nature. Th erefore, we conclude that defendant was not subjected to doub le jeopardy in viola tion of the Fifth Amendment of the United States Co nstitution and Article I, Section 10 of the Tennessee Constituti on. This issue is without merit. C. Due Process Def endant al so claims that his prolong ed detention without a bond setting violateshis rights to due proc ess of law. “Pre-tri al det ention that is remedial as distinguished from puniti ve is p ermissible provided that the individual is afforded sufficient procedural due process.” Pennington , 952 S.W.2d at 423 (citing United States v. Salerno , 481 U.S. 739, 751, 107 S.Ct. 2095, 2103, 95 L.Ed.2d 697 (1987 ); Schall v. Martin , 467 U.S. 253, 264, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984); Bell v. Wolfish , 441 U.S. 520, 536, 99 S.Ct. 1861, 1872-73, 60 L.Ed.2d 447 (1979)). How ever, defendant was provided suffici ent procedural due process. Defen dan t
was brought before a magistrate within a day ofhis arrest as mandated by Tenn. R. Crim. P. 5(a). Although the General Sessions Court initially denied the defendant bond, the allegation that such a decision was erroneous does not giv e rise to the relief sought

. The failure of the General Sessions C ourt to set bond on November 12 does no t10

give rise to a dis missal of the indictment. This issue has no merit.

MOTION TO SUPPRESS

Defendant contends the trial court erred in refusing to suppress his pre-trial statementto the authorities. In spite of the untimely fili ng of the motion for new trial,
we elect to address this is sue to determine wheth er t he refusal to suppress was plain error. We find it was not. Onlytwo witnesses tes tified at the motion to suppress, Investigator Lind a Gamblin and OfficerDarryl Smith. The defendant di d not testify at the motion to suppress; however, he did testify at trial as to certain matters that would be relevant to the motion. This Court may c onsider those portions

of his trial testimony that are relevant to the motion t o suppress. Se e State v. Henning , S.W.2d (Tenn. 1998). A. Facts Investigator

Gamblin was personal lyacquainted with the defendant. The defendant was a former police officer with the Covington Police Department as well as the former police partner and former neighbor of Investigator Gamblin. Defendant’s wife, Janet Johnson, was a school teacher. OnNovember 11, 1996, at approximately 7:00 a. m, she was on her way to school and spoke with Investigator

Gamblin at

the Covington Police Department. They “talked just briefly,” and the officer was informed that Janet “suspected her husband had forged [some checks].”Janet also st ated there had been “inappropriate c ontact” between the defendant and their daughter. According t o Investigator Gamblin , Janet did not go into a “great

amount of detail.” Janet advis ed Investigator Gambli n that she made the defe ndant leave the residence. Investigator Gamblin a dvised Janet that she would need to talk wi

th the child that afternoon. Later in the morning Janet

contacted Investigator Gamblin and informed her that the defendant was back in the r esidence, and Janet wanted him removed.11

Investigator

Gamblin desired to speak with the defendant and asked Officer Smith to bring the defend ant to the police department “for inv estigation.” Investigator Gamblin testified this was “not an arrest. I just wanted to speak with hi m.” Officer Smith knocked on the front door of defendant’s residence and, after
no response, went inside where he disc over ed the defendant taking a shower. Officer Smith informed the defendant he was b eing taken to the station “ for investigationp urposes” and would hav e to be handcuffed in accordance with departmentpolicy. Being a former police officer with that department, th e defendant indicated tha t he unders tood the “policy” and had “no problem” with it.The defendant did not consider hi msel f “under arrest,” but rather understood he was being taken to the station to be inter viewed by Inve

s tig ator Gamblin. Defendant was transported to the pol ice department in a patrol unit. Upon his arrival at the police station at approximately 11:00 a.m. Investigator Gamblin advised the defendant of his Miranda rights. As

a former police officer, the defendant was very famili ar with the Miranda rights and unders tood them before they were given to him by Investigator Gamblin. Defendant then si gned a waiv er and gave an incriminating statement relating to inappropri ate sexual contact wi th the child. After the givi ng of the statement, the defendant was for mally arrested. B. Trial Court Findings The trial court found that “the officer had probab le cause to order the arrest of the defendant based on alle gations that he had forged checks and had inappropriatesexual contact with the m inor under the age of thirteen (13) years.” A trial court’s fin din gs of fact in a suppression hear ing are conclusive unless the evidence preponderates otherwise. State v. Odom , 928 S .W.2d 1 8, 23 (Tenn.1996). However, the appli cation of the law to the facts found by the trial court is a question of law which this Co urt rev iews de novo

. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997). We proceed to review the tri al court’s ruling un der these principles. C. Seizure Defendant contends he was unlawfull y seized in hi s residence without12

probable cause. We agree. We first determine whether the defendant was, in fact, arrest ed or seized at his residence. Thecrucial inquiry is whether he was “seized” for Fourth Amendment purposes. Whenever an officer accosts an indivi dual and restrains the freedom to walk away, the of

f icer has “seized” that person for Fourth Amendment purposes. State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997). Regardless of the policy of the Covington Police Department or the subjectiv e intenti ons o f the officers, the handcuffing of the de f endant and transporting him to the police department constituted a seizure. Furthermore, this was not an investigatory

stop or detention which,although maybe justified upon reasonabl e suspicion supported by specific and articuable facts, must be temporary and for a li mited purpose. Florida v. Royer , 460 U.S. 491, 103 S.Ct. 1319, 75L.Ed.2d 229 (1983); Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Simp son , ___ S.W.2d ___ (Te nn. 1998). “[D]etention forcustodial interrogati on - regardless of its label - intrudes so severely
on interest s protect ed by t he Fo urth Amendment as necessarily to trigger the traditional safeguards against ill egal arrest.” Dunaway v. New York , 442 U.S. 200, 216, 99 S.Ct. 2248, 2258, 60 L. Ed.2d 824 ( 1979). The defendantwas detained for custodial interrogati on; therefore, Dunaway is controlling. D. Probable Cause Having dete rmine d that the defendant’s seizure di d not qualify as an investigatory

detention, the seizure was much more akin to a formal arrest and must have been founded upon probable cause. State v. Melson , 638 S.W.2d 342, 350 (Tenn. 19 82) . An officer in Tennessee may effect a w arrantless arrest “[w

]hen a felo nyhas in fact been committed, and the officer has reasonable cau se fo r believing the person arrested to hav e committed it.” Tenn. Code Ann. § 4 0-7- 103(a)(3). Improper sexual contact with a child and forgery, regardless o f t he amount of the forged instrument, are felo nies. See Tenn. Code Ann. §§ 39-13- 504(a)(4), 39-14-114(c). Whether probabl e cause exists depends upon w hether the facts and13

circumstances

and reliable information known to the police officer at the time of the arrest “were sufficient to warrant a prudent [person] in believing that the [individual] had committed or was committing an offense.” Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v. Ma r shall , 870 S.W.2d 532, 538 (Tenn. C rim. App. 1993). Probable cause must be more than m ere suspici on . State v. Mels on , 638 S.W.2d at 350. Generally, the subjectiv e motivations and characterizations

by the police officers are not determinative as to the legitimacy of
an arrest, search or sei zure. Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Vineyard , 958 S.W.2d 730, 73 6 (Tenn. 1997). Under both the federal and state constitutions , a warrantless sear ch or seizure is presumed unreasonable w ith the state having the burden t o demonstrate that the seizure was co nducted pursuant to one of the narrowly defined ex ceptions to the warrant requir

ement. Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) ; State v. Yeargan , 958 S.W.2d at 629. Investigator

Gamblin testified at the motion to supp ress tha t she was informed by defendant’s wife that ther e h ad been some “inappropriate contac t” between the defendant and their daughter. Janet did no t give Investigator Gamblin any details concerning

the “inappropriate contact,” and Gamblin indicated that she needed to speak wi

th J.J. late r that day.Th i s information, standing alone, is insufficientto warrant a reasonable person in believing that defendan t had in fact committed a felony sexual offen se. The o ff icer did not have probabl e cause to arrest defendant for sexual abuse at that time. Similarly, according to Investi gator Gamblin, Janet “suspected” the defendant of fo rgery. Janet and Inv estigator Gamblin “talk ed just briefly” concer

ning th i s matter. Investigator Gambli n did not testify about any factual details conveyed to her by Janet. Again, probable cause did not exist for the warr antless arre st of defendant for forgery based upon this conversation. We, therefore, conclude th e trial court erred in its legal determination that5 De f endant raises the

issue on appeal tha

t he was illegall

y arreste d in his home withouta warrant. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, beca

usewe have determined that defendant was illegally seized without probable cause, we need not address this issue. 14 probable cause existed for the arrest of defendant. 5 E. “Fruit of the Po isonous Tree” Because we have determined th at defendant was illegally seized without probable cause, our next inqui ry becomes whether defendant’ s statemen t wa s illegally obtained as a result of the ill egal seizure. The analysis used to

determine admissibil i ty

of such a statement is the “fruit of the poisonous tree” analys is, as opposed to a voluntariness test

. Brown v. Illinois , 422 U.S. 590, 601, 95 S.Ct. 2254, 2260-61, 45 L.Ed.2d 416 (1975); State v. Huddleston , 924 S.W.2d 666, 674 (Tenn. 1996). In order to ascertain w hether a statement obtainedin violation of the Fourth Amendment should be suppressed, the primary inquiry is “w

hether [the statement] ‘was suffici ently an a ct of fre e will to pur ge the prim ary taint of the unlawful invasion.’” Brown v. Illinois , 422 U.S. at 599 , 95 S.Ct. at 225 9 (quoting Wong Sun
v. United States , 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963)); see also State v. Huddleston , 924 S.W.2d at 674. Although this determination is made pur suant to the facts of

each case, the following four considera tions are helpful in this deter mination: (1) the presence or absen ce of Mirandawarnings; (2) th e temporal proximity of the arrest an d t he confession; (3) the presence of interveningcircumstances; and finally, of particular signif ic ance, (4) the purpose and flagrancy of th e official misconduct. Huddleston , 924 S.W.2d at 674. 1. Miranda Warnings Applying the above factors to the present c ase, it is undisputed that defendant received his Miranda warnings upon arrival at the police station. It is also noteworthy

that defendant, as a former police officer, had an intimate understanding of these rights. 2. Temporal Proximity Weighing in favor of suppression of the statement is the temporal proximity of the a rrest and the defendant’s statement. Defendant ga ve the statement to15

Investigator

Gamblin within thirt

y-five (35) minutes of hi s arrival at the police station. However, this factor is not determinative of the issu e. In Rawlings v. Kentucky , 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the defendant and two others were detained by off icers in a residence while other officers left to procure a search warrant. Defendant gave an incrimi nating statementforty-five (45) minutes after the initial detention. Althoug h the Supreme Court recogni zed the short peri od of time between the illegal detention and the statement, the Court n oted that the atmosphere during thedetention was congenial and non- threatening. 448 U.S. at 108, 100 S.Ct. at 2563. Thus, the Court found that the cir cumstances surrounding the detention outweighed the s hort ti me sp an between the detention and the statement. Id. Our s ituati on is analogous to Rawlings . There is nothing to indi cate a coercive or threatening atmosphere surrounding defendant ’s s tatement. The reco rd indicates to the contra ry. These circumstances outwei gh the short time span between the detention and the stat ement. 3. Intervening C ircumstances The facts of this case ar e extreme ly unique and attenuate the t aint of the illegal seizure. Defendant was a former police officer who w as familiar with the proceduresand policies of the Covington Poli ce D epartment. He was personally acquainted with the officers invol ved and, in fact, was Investigator Gamblin’s former partner and neighbor. He clearly understood he was merely wanted fo r questioning. He did not consider himself to be un der arrest when he w as seized, nor when he gave the statement. He w as totally cooperativ

e and willing to g ive a statement. 4. Flagrant Miscondu ct Furthermore, the offi ci al misconduct in this case must be viewed in proper context. In Brown , the impro per arrest was accomplis hed “in the hope that something might turn up,” and its manne r was such “to cause s urpr ise, fright and confusion.” 422 U.S. at 605, 95 S.Ct. at 2262. T hat was not the purpose in this
case. Defendant was not taken to the pol ice department to secure a confessi on. His seizure was

not intended to nor did it caus e surprise, fright or confusion.16 This Court in no way condones war rantless arrests without probable cause. Nor does this Court condone a police poli cy of handcuffing and transporting persons whom the poli ce merel y desir e to question. Specifi cal ly, this Court does not condone that which the Covington Police Depa rtment did in this case. Nevertheless, the lack of intent to secure a c onfession and the absence of surprise, fright or confusion mitigat e the flagrancy of the misconduc t. 5. Result Considering the above facto rs i n light of defendant’s familiarity with the persons and procedures involved, we conclude that defendant’s statement was the product of free will sufficient to “pur ge the primary tai nt of the u nlawful invasion.” Wong Sun v. United States , 371 U.S. at 486, 83 S.Ct. at 416. Therefore, th e statement was admissible ev idence. This issue is without merit.

CONCLUSION
For the foregoing reasons , the judgment of the trial cour t is affirmed.

JOE G. RILEY, JUDGE

CONCUR:17

CURWOOD WITT, JUDGE

ROBERT W. WEDEMEYER, SPECIAL JUDGE