State v. Rudolph Munn ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST SESSION, 1998 April 1, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801-CC-00007
)
Appellee, )
) RUTHERFORD COU NTY
V. )
)
) HON . JAME S K. C LAYTO N, JR.,
RUDOLPH MUNN, ) JUDGE
)
Appe llant. ) (FIRST D EGRE E MU RDER )
FOR THE APPELLANT: FOR THE APPELLEE:
J. STANLEY ROGERS JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
CHRISTINA HENLEY DUNCAN JOHN P. CAULEY
Attorney at Law Assistant Attorney General
Rogers Richardson & Duncan 2nd Floor, Cordell Hull Building
100 North Spring Street 425 Fifth Avenue North
Manchester, TN 37355 Nashville, TN 37243
JOHN G. MITCHELL, JR. WILLIAM C. WHITESELL, JR.
Attorney at Law District Attorn ey Ge neral
P.O. Box 1336
Murfreesboro, TN 37130 J. PAUL NEWMAN
Assistant District Attorney General
Judicial Building Suite 303
20 N. Pub lic Square
Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Rudolph (Rudy) Munn, appeals as of right his conviction of
premeditated first degre e mu rder in the Circuit Cou rt of Rutherford C ounty. The jury
sentenced Defen dant to life w ithout the p ossibility of pa role. In this ap peal,
Defendant raises the following twelve (12) issues:
I. Did the trial court err in denying De fendan t’s motion to
suppress the video taped sta tements o btaine d in
violation of his Four th Amendment rights and in violation
of federal and state wiretap laws;
II. Did the trial court err in denying Defen dant’s m otion to
suppress because Defendant was n ot prop erly advised
of his Miranda rights and did not know ingly wa ive his
Miranda rights prior to makin g the state ments
(Defenda nt’s Issue III);
III. Did the trial court e rr in den ying D efend ant’s motion to
suppress because the statemen ts were not volun tary
(Defenda nt’s Issue II);
IV. Did the trial court e rr in den ying D efend ant’s motion to
suppress because the state men ts were taken in
violation of h is Fifth Am endm ent right to c ounse l;
V. Did the trial cou rt err in not suppressing Defendant’s
subsequent statements under the derivative evidence
rule;
VI. W a s there sufficient evidenc e to convict Defen dant o f
first degree murde r beyond a reaso nable d oubt;
VII. Did the trial cou rt err in failing to declare a mistria l
during th e guilt pha se of the tria l;
VIII. Is the felony murder aggravating circumstance
supported by the evidence;
IX. Did the trial court err in its charges to the jury during the
sente ncing phas e of the trial:
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A. Did the trial court err in charging the
jury with aggravating circumstances
(i)(6) and (i)(7);
B. Did the trial c ourt er r in failing to
instruct the jury on the statutory
definitions of theft and rob bery;
C. Did the trial court err in not
instructing the jury that Defendant
had “ n o c r im inal record or
conviction” as requested by
Defen dant;
D. Did the trial court err in not charging
Tennessee Pattern Jury Instruction
43.03 during the sentencing phase
of trial;
X. Did the trial court err in admitting certain testimony of
Valer ie Ros coe a nd O fficer Pe el;
XI. Did the trial cour t err in its responses/instru ctions to
questions asked by the jury during deliberations; and
XII. Did the trial court err in allowing the jury to view the
video tape of Defendant’s confes sion d uring
deliberatio ns at the s entenc ing pha se of the tria l.
After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.
Facts
The facts pres ented a t trial reveal that on November 28, 1995, at
appro ximate ly 6:13 p.m., the M urfreesboro Police Department received a call that
the body of a white male had been found in the Day s Inn par king lot on South
Church Street in Murfreesboro, Tennessee. The police arrived a few minutes later
and conducted a crime scene investigation during which they discovered the body
was that of a wh ite male w ith a woun d to the he ad. A pock et knife with the blade
open was located n ext to the bo dy, and th e front po ckets of th e victim’s p ants were
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turned inside-out. The body was lying close to the back of a car that was being
towed by a motor home. No wallet, keys, or other items of identification were found
on the body, and no one at the scene knew the identity of the person. An
investigation of the mo tel registry, motel rooms, and surrounding crime scene
revealed no evide nce reg arding th e victim’s ide ntity.
On November 29, 1995, a medical examination and autop sy were performed
on the victim, but again no evidence was discove red which reve aled his identity.
The autops y report did reveal tha t the victim h ad died as a resu lt of a conta ct
gunshot wound to the head with the bullet traversing the brain.
For the two days following the dis cover y of the b ody, the police contin ued th eir
search for the identity of the victim. The police placed a picture of the victim in the
med ia urging citizens to ass ist in identifying the victim. In response, the police
received a call on November 30, 1995, from a pers on wh o thou ght the victim c ould
possibly be Andrew Poklemba, a student at Middle Tennessee State University
(MTS U).
In an atte mpt to verify this information, Officers Eddie Peel and Chris Guthrie,
both of the Murfre esboro Police D epartm ent, along with several other officers, went
to Andr ew Po klem ba’s dormitory room on Novem ber 30, 1995 . Shortly thereafter,
Pokle mba ’s roomm ate, the D efenda nt, arrived at the room. Defendant told the
officers that he ha d not seen his room mate since about 3:45 p .m. Mond ay,
November 27, 1995. Officer Peel asked Defendant if he had any pictures of
Poklemba, and Defendant found two ph otogra phs w hich h e gave to Offic er Pe el.
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After looking at the photos, the officers knew that the victim was in fact Andrew
Poklem ba.
In order to gather further information about Poklemba and his death, the
officers briefly interviewed Defendant in his dorm room. Defendant denied any
personal knowledge of Poklemba’s death or of any motive on anyone’s part to
murder Pokle mba . Defe ndan t did tell investigators that an unknown person came to
see Poklemba on the Sunday proceeding his death. According to Defendant, the
man who came to visit Poklemba had short ha ir and wo re com bat boo ts. Defendant
gave the police an alibi for where he was on the evening Poklemba was killed. He
claimed to have been with a friend named Dennis Bova on the evening of the
murder. However, the police obtained phone records from Defendant’s dorm room
which indicated that Defendant was in his room that evening. Dete ctives G uthrie
and Peel later located Pokle mba ’s vehicle in the vicinity of Abernathy Hall, an MTSU
camp us dorm itory.
On December 1, 1995, after co nduc ting oth er interv iews w ith peo ple who also
knew Poklemba, Officers Peel and Guthrie noticed several discrepancies in the
details given to the m by D efenda nt. These included knowledge that Defendant was
not with his friend Dennis Bova on the evening of the murder as Defendant had
previo usly told the office rs. In fact, at this point the officers had obtained the phone
records of Defendant’s dorm room in determining his whereabouts on the night of
the murder. The officers believed that Defendant had more information about
Poklemba than he had told them the previous day. That afternoon, Officer Peel
contacted Defen dant at his parents’ home in Manchester, Tennessee, and asked
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him if he wo uld assist them in the clarification of thes e deta ils. Defe ndan t volunta rily
agreed to com e to the po lice station to answe r additiona l question s.
At approxim ately 5:00 p.m. on December 1, 1995, Defendant, his parents, and
his two-year-old sister arrived at the police station. Officers Peel and Guthrie,
Defen dant, and h is father, Ron Munn, then went to the third floor where they w ere
escorted into the po lice station in terview/interrogation room, with a sign, “Felony
Booking Room,” over the door. It was equipped with blin ds on the win dows , a sm all
table, chairs, and an audio tape recorder on the table. Unbe known st to Defe ndant,
the room was permanently equipped with a video camera which was hidden in the
clock on the wall. Microphones were in the ceiling above the table and chairs. The
officers did not inform Defendant that the conversations were being recorded by a
hidden video camera and microphones. In another room within the police
department were several video cassette recorders and a monitor. The
conversations in the F elony B ookin g Roo m co uld be monitored by other o fficers in
the sep arate roo m while they were being re corded .
After the four men were seated, Officer Guthrie explained that he was turning
on the tape recorder on the table. He also stated that no one was under arrest and
said that Defendant could leave at anytime. Defendant’s response indicated that he
understood this. Both Officers Peel and Guthrie inquired about the discrepancies
in Defe ndan t’s story, b ut De fenda nt gen erally stayed with his original story. About
twenty minutes into the questioning, Officer Peel asked Defenda nt if he wanted a
Coke, to which Defe ndant responded “yes.” Officer Peel then left the room and
returned with a C oke fo r him. A t no tim e did Defendant state that he wanted to leave
or that he wanted an attorney. At the conclusion of the 54-minute interview, Officer
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Peel indicated that Defendant and his father were free to go and es corted th em to
the lobby where Defendant’s mother, Rita Munn, and Defe ndan t’s little sister were
waiting.
Officer Peel asked Mr. Munn to explain to his wife that Defendant might be
asked to retur n to the station if more inform ation was ne eded. Mrs. M unn was ve ry
upset and she asked Lieutenant Peel if he thought that Defendant had killed
Poklemba. Lieutenant Peel responded, “Ask your son.” Mrs. Munn did so and
Defendant did not respond. Further conversation ensued among them. Officer Peel
stated that he would like to ta lk to Defe ndant o utside the presen ce of his p arents
because he felt that Defendant would come closer to telling the truth if they were not
in the roo m. Rita Munn testified that Lieutenant Peel kept staring at her as if he
wanted her to “get involved in the process,” and that she felt that they were no longer
free to leave at that time. Mrs. Munn then ask ed De fendan t if he wante d to talk with
the police furth er and h e replied th at he did. They all proceeded to the third floor and
Officers Peel and Guthrie and Defendant went in the Felony Bo oking Roo m while Mr.
and M rs. Munn and the little sister waited outside in the hallwa y.
Again, Office r Pee l started the ca ssette record er on th e table and told
Defendant that he w as not un der arres t, that he had voluntarily come to the police
station, and that he could leave at any time he wished. Defendant indicated that he
understood. The officers told Defendant that they thought he knew more than he
was telling them. Specifically, Officer G uthrie state d, “It’s time to te ll it [the truth].”
Officer Peel then stated, “You know who killed him, don ’t you?” A fe w minu tes into
the interview, Officer Peel re ques ted tha t Defe ndan t provid e him with a c opy of h is
fingerprints. Defen dant to ld them that he did no t want to give his fingerprints that
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night. Specifica lly, he said, “C ould I com e . . . do it next we ek whe n my pa rents
aren’t here? I’ll call you and I can come down here.” The o fficers th en told
Defendant that they had a witness who would say he saw Defendant and the victim
arguing the day before the victim was killed. At one point during the interview,
Defe ndan t’s contact popped out. Defendant asked the officers if a mirror was
available. Although a bathroom was located just outside the Felony Booking Room,
the officer told Defendant to pull the blind up on the window and use its reflection for
a mirror. Th ere is no in dication th at Defen dant knew a bathroom was located just
outside the interview room. At least three more times during this interview, the
officers told Defendant that they knew he was not telling th e truth a nd the y urge d him
to tell all that he kn ew. D efend ant ag ain sa id he would rather come back on Monday
and be fingerp rinted. Th e officers to ld him, “N ow’s the tim e to do it [tell the tru th],
with momma and daddy here to support you and be with you .” Office r Pee l then to ld
Defendant the following:
I’m gonn a tell you your m omm a’s gonna ask me if I think
you did it. And I’m gonna say momma yes I do. And you
know w hat she ’s gonna do. She ’s gonna have a fit.
Again, Defendant stated that he would rather come back and talk to the officers later.
At this point, Rita Munn opened the door and came into the interview room.
Mrs. Munn indicated that she had b een listening ou tside the door an d had hea rd
what they were saying. She told the officers, “This sounds like the kind of thing ___
need ___ lawyer ___.” (The blanks represent portions of the transcripts and tapes
that are inaudible.) Officer Peel told her that “[a]ll you have to do is say you want
one.” Mrs. Munn asked the officers, “You’re not intimidating him to tell you
some thing?” D efenda nt then re spond ed, “Th ey’re not. T hey’re be ing nice.”
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Mrs. Munn began to plead w ith her son , in the pres ence o f the officers, that
he should explain what happened. The following is an excerpt of her emotional plea:
You know that if we do n’t get it out in the open, the n ext
stop is we’ll go to a lawyer’s office and we’ll have to go
through all this or he’ll have to make you get it out in the
open becau se soo ner or later we’ll have to all get it out in
the open. Even if you went to confession. The first thing
Father Kurt would say is tell me what happened. If you
were to walk out of this b[uilding] and die tonight, that
would be enough for certain if you lied to these men or
avoid telling them something, then that would be enough
to keep you out of heaven. Is this worth eternal
damnation? Do you understand? Is this worth that? I
don’t think so . You c an’t go to com mun ion and take the
body of Christ and be lieve all that and not believe that he
does n’t love you too, and wo n’t forgive you . That’s the first
step. We can’t take the first step until we know what
you’ve done. We w ill not abandon yo u Rudy. W e love
you too much for that. Yeah. But please, this is like
bleeding an open wound. Can we just get to the end of it?
Please? Okay? Please?
...
They [the officers] think there’s more, they thin k there ’s
more. And you have ___ okay, let’s just get to the end. I’ll
pray for you, okay? Okay? I’ll help you. What happened?
Defen dant res ponde d by sayin g, “I told them what ha ppene d mom ma.”
Officer Guth rie then admitted to Mrs. Munn that they thought Defendant killed
the victim. Specifically, Officer Peel stated:
I think that for whatever reason it was, he and Andrew.
Went to this motel. Andrew was shot. Andrew’s car was
brought back and p arked next to w here y our da ughte r’s
dorm is and left the re. And w hoever d id it, walked on off.
And the discrepan cies in his story, that he’s told, makes us
believe that he was the one that done it. All I’m gonna do
is what I’m gonna do.
Officer Peel then inform ed Mrs. Munn that her son had asked to come back on
Monday to speak further with them.
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Later in that interview, Officer Peel asked Rita Munn, “Do you want to talk to
us or do you want to talk to him by himself?” Officer Peel then asked Defendant, “Do
you want to talk to your m omm a? Or do yo u want to talk to us? ” Momen ts later,
Officer Guthrie a sked D efenda nt again, “D o you wa nt to talk to your momma by
yourself?” Defend ant resp onded , “Yeah.” De fendan t did not spec ifically ask to
leave or to consu lt with an attor ney at an y time. Bo th officers left th e room . The
door to the Felony Booking Room was then closed but not locked. Throughout the
interview there had been the distant sounds of people outside the door, as
evidenced in the video tapes. Officer Peel went into the hall area and O fficer G uthrie
went in and out of the separate video monitoring room.
Mrs. Munn sat close to Defen dant, touc hed him on his kn ee, and pleade d with
him to tell the officers what they wanted to k now. Defen dant then told his m other,
“I shot him.” Defendant proceeded to tell his mother that he shot the victim “[F]or the
money. I told him I was gonna pay him late. I borrowed his gun and sold it, and I
shot him. Didn’t have any intention of paying the money.” At one point, Defendant
provides the following detailed statem ent to his moth er:
W ell, we had to go somewhere else. I told him we were
going to go ___ and meet somebody but he ___ the
license plates on the car, so if we did get ca ught it w ould
be hard to find when we did that, wh en he k nelt dow n to
unscrew the license plate. Then I shot him in the back of
his head. He fell down and I rolled h im ove r and to ok his
license a nd wallet.
Mrs. Munn asked Defendant why he changed the license plates on the car and
Defenda nt responde d, “hard to find me .”
Defendant goes on to tell his mother the following:
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I didn’t like the kid from the ver y begin ning. I h ated h im
with a passion and ___ was the first time. I couldn’t stand
the kid. He used to pick on me beca use I wasn’t as s mart
as he was . I hated him. I couldn’t stand him. He
disgusted me. He had pornographic magazines in the
room, it was disgusting.
Mrs. Munn testified that she thought she and Defendant were alone and that
no one was listening or recording their conversations. Defendant asked his mother
to “Go find th e police s o I can tell the m.” Mrs. Munn told Defendant to “[s]tay right
here [in the interroga tion room ].”
Mrs. Munn then we nt and fou nd Office r Peel an d aske d him to accompany her
inside the Felony Booking Room where she expressed her confusion about what she
shou ld do. De fenda nt then stated to his mother, “Why don’t yo u go a head and te ll
them?” Mrs. Munn then stated, “He says he shot [the victim].” Defendant
interjected, “.22 caliber, is that what you found?” Officer Peel asked if Defendant
wanted to tell the m ab out it an d Def enda nt said , “Don ’t turn on the tap e, I wou ld
rather not tape it.” Following this excha nge, Mr s. Munn asked , “Don’t we have to
have a lawyer?” Officer Peel stated “If you want one, it’s up to you, just whatever
you want to do.” Defendant did not ask for an atto rney n or did he ask to leave the
room. Mrs. Munn expressed a desire to talk with her h usban d and late r asked to
speak with Officer Peel alone. Mrs. Munn and Officer Peel exited the room leaving
Officer G uthrie an d Defe ndant a lone.
Later, Defe ndant’s father and his two-year-old sister entered the interview
room. In the pres ence o f Officer Guthrie, the following conversation occurred
between D efendant an d his father:
Ron Munn: You shot him?
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Defendant: Yes.
Ron M unn: W hy’d you d o it?
Defenda nt: For mon ey.
Ron M unn: Fo r what?
Defen dant: For money. I hate it that I had to ask you for
money, never enough.
Ron Mu nn: Rudy.
Defendant: Plus, I hated the kid -- he was a jack-ass.
Ron Mu nn: Rudy.
After that exchang e, Officer G uthrie exited the interview room, le aving D efenda nt,
his father, and his sister in the room. Defendant and his father continued to discuss
the facts which mo tivated his actions. Spe cifically, Defendant told his father that he
killed the victim for a total am ount of $8 00-900 dollars.
Later, Rita Munn reentered the room and Ron Munn aske d his w ife, “He did
it?” Rita Munn said, “That’s what he said.” A few minutes later, Rita Munn asked
her husband, “Was it an accident?” Defendant responded with the following:
It was inten tional. I did it on purpose. I knew exactly what
I was go nna to d o. I knew w hat to take to take his
identification. I wish I could have put his ca r somew here
else but Aberna thy was the farthes t away from S harp that
there was, th at I cou ld think of, without having to walk too
far. That’s why I put it ove r there.
Rita Munn then asked, “Now what do we do? How come you are not crying? How
come you don’t feel awful about what you did?” Defendant replied, “Because I am
a psychopa th, in my opinion.” Defen dant we nt on to sa y, “I know w hat I did. I know
it was wrong. There is nothing I can do to change that. ___ cry is not going to
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chang e it. I have to ac cept resp onsibility, I’m not gonna sit and cry.” The officers
were not present during any of the above conversation.
Following that exchange, Officer Peel reentered the room. The officer spoke
briefly with Mrs. M unn an d Defe ndant. M rs. Munn then told O fficer Pee l that “[h]e
[Defen dant] should have a lawyer.” Officer Peel stated, “If he wanted one,” and then
quickly changed the subject and left the room.
In the final intervie w, Officers Peel an d Guth rie were w ith Defen dant. At one
point, Officer Peel asked Defendant, “Feel better?” Defend ant resp onded , “Yeah.”
The officers spok e to De fenda nt abo ut bein g an a dult an d havin g to m ake u p his
own mind. D efenda nt then as ked O fficer Pee l to run dow n what w ould ha ppen to
him. Officer Peel to ld Defendant that the District Attorney was on the way and that
he said “yea or nay.” Defendant then asked, “What do you mean yea or nay?”
Officer Peel res ponde d, “On w hat to do. W e are no t trying to rush you. He says
whether to charge you tonight or what to do or let you go home tonight and charge
you later or what.” Defendant told the office rs, “[I]t was all about the gun and m oney,
it’s always been about m oney.” At this point, Officer Peel pushed a copy of the
Miranda warnings in front of Defendant and asked, “Have you read that?” Defendant
then looked at the written Miranda warning and told them “No.” Officer Peel then
stated, “Why don’t you go ahead and read that just to be safe?” Defendant read the
warning for approximately 15-25 seconds, and Officer Peel stated, “Know what you
want to do yet?” D efenda nt stated, “I’m going to wait and see what happens ___ I
don’t want to sign anything.” Officer Guthrie then said, “You understand it?”
Defenda nt responde d, “Yeah.”
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At one p oint, Officer Peel said, “Reckon we can find the billfold,” to which
Defendant replied, “I can help you find it, the keys too.” Defendant then initiated
several topics of discussion relating to the crime. These discussions were not in
response to police questioning, but appeared simply to be an attempt by Defendant
to determine how much the police actually knew. Later, Defendant’s father entered
the interview room and the following exchange occurred.
Ron Munn: Where’s he going from here?
Officer Peel: Well we ain’t started. We’ll have to wait and
see, what y’a ll said, m omm a told u s to wa it until she
comes back.
Defen dant: [G]et a lawyer, that would probably be the best
thing, ___ get lawyer. Y’all said I wasn’t under arrest so I
could lea ve tonigh t and I cou ld just . . . .
Officer P eel: You’re going to b e arreste d tonight.
There was then a discussion about waiting for a lawyer and the Munns were
told that the D istrict Attorney wa s on the w ay. The whole M unn fam ily and both
officers were present in the room at this time. Rita Mun n asked h er son, “Rud y, are
you sorry?” Defendant responded, “Not really. He was a dirty little son-of-a-bitch,
looked at porno magazines.” Moments later, the Munns were told that the District
Attorney was there and they were asked if they wished to talk with him. Defendant
was su bsequ ently arres ted and booke d that eve ning.
Defendant was interviewed in the Felony Bo oking Roo m for a total of 3½ - 4
hours. Defen dant’s motio n to su ppres s the s ecretly -taped statem ents m ade to his
mother and fathe r while in the Felony B ooking Room was de nied by th e trial court,
and the video tapes were admitted into evidence at trial. Written transcripts of the
tapes were pre pared b y both pa rties, but they were never given to the jury. The
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video tapes contained blank portions or “skips” where the parties could not agree as
to what was being s aid. The judg e told the jury the following in regards to the tapes:
[Y]ou’ve heard and viewed a videotape and have been
advised that certain portions of the videotape have been
deleted. Now, you are specifically instructed that you are
not to speculate on these deletions and that these
deletions contain material that is irrelevant and immaterial
to your decision in this case.
In addition, you’ve been advised that the State and the
Defendant disagree as to what some of the statements on
the videotape might have been. You are the exclusive
judges of the statements on the videotape or of what
statement the videotape contains, just as you are the
exclusive judges of all of the facts and evidence in this
case.
Valer ie Roscoe, the victim’s fiancee, testified at trial that she met Poklemba
appro ximate ly a year before his de ath. Sh e and the victim beca me ro man tically
involved in the summer of 1995 and Poklemba spent m ost of his time with Ms.
Roscoe at her h ome in Nas hville. In fa ct, she was in troduc ed to D efend ant on ly
weeks before P oklem ba was murde red.
She testified that Poklemba was an ROTC student at MTSU and had served
in Panam a and in S audi Ara bia. Accord ing to Ms. Roscoe, Poklemba owned several
military type weapons, including a 9mm, a CAR-15, an AK-47, a M-16 and other
guns. He kept these guns at his dorm room. She testified that Poklemba had given
her the CAR-15, and had loaned Defendant the AK-47. She said Poklemba had
been tryin g to get the gun ba ck from Defen dant.
Ms. Rosc oe als o testifie d that on the weekend before his death, she and
Poklemba had traveled to Washington D.C. to meet m embers of Poklem ba’s family.
Ms. Rosco e said tha t upon the ir return to Tennessee, on Monday, November 27,
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1995, she and Poklemba went to the Emb assy S uites M otel to m ake p lans fo r their
wedding. The last thing Ms. Roscoe recalled was that Poklemba said he was going
to return to Murfree sboro to see De fendan t.
Paul Reavis, a student at MTSU and a friend of Defend ant’s, testified that
Defendant offered to s ell him an AR-15 , and Re avis gave Defen dant $200-$250
dollars toward the total purchase price of $500 . Reav is even tually returned the AR-
15 to Def enda nt bec ause thread s in the gun were stripped. Defendant then loaned
him an AK-47 . Reavis testified that som etime on the afternoon of N ovembe r 27,
1995, Defe ndan t had a sked to borro w a sm all caliber handgun from Reavis. The
two of them did not discuss why Defendant wanted the gun. Reavis drove from
MTS U to his home in Hillsborough, Tennessee, in order to retrieve the weapon for
Defen dant. He recalled that he gave th e wea pon to Defe ndan t at app roxim ately 2:00
p.m. that afternoon. Reavis also let Defendant borrow a box of .22 long rifle bullets.
Rea vis testified that he told Defendant that the weap on wa s a sing le-actio n pisto l.
That meant that in order to fire the weapon, the hammer had to be cocked. In other
words, the pistol could not be fired simply by pulling the trigger. Defendant returned
the pistol to Reavis that same evening at approximately 7:30 p.m. Reavis testified
that some of the bullets were missing and there were indications that the gun had
been fired. Again, they did not discuss the reason Defendant had needed the gun.
Two days after the murder, Defendant gave Reavis a duffle bag with “[v]arious
military surplus type of things and web gear” in it, such as rifle maga zines, a
bayone t, a knife, two m agazin e pouc hes, an d a pistol b elt.
Tommy Heflin, a forens ic scientist at the Tennessee Bureau of Investigation
crime lab, testified that “in order for the hammer to engage the firing pin [of the gun
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in question], a transfer bar safety must come up and engage the hamm er. And the
only way you can do this is actually by applying pressure to this trigger area.” He
further testified that the trans fer bar safety is “designed to keep a person from
accidentally discha rging the wea pon.”
Jason Dowdy, a student at MTSU, testified that he lived on the same dorm
floor as Defendant. He said that he loaned Defendant a “silver knife, kind of like a
Swiss Army knife” two-three weeks before Poklemba’s murder for the purpose of
taking down bulletin boards in their dorm hallway. Defendant stated at the police
station that the victim had subsequently asked to borrow that knife from him and that
Defen dant no longer h ad it.
Robert S. Morrison testified that he saw Andrew Pokle mba at app roxim ately
6:00 p.m. on Novem ber 27, 19 95, at th e “Ga me M aster H obby S hop” in
Murfreesboro. Keith Kail, the owner of the shop, also recalled seeing Poklemba at
the hobby sho p that evening. M orrison recalled he aring Poklem ba say that his
roomm ate was coming to pick him up. When a medium-size or small-size two-door
car pulled up in front of the shop, Morrison asked Poklemba, “[i]s that your
roommate” to which Poklemba replied, “[y]es, that’s him.” As Poklemba was walking
out the doo r to get in the car, he told Morrison that he was going to the Day’s Inn.
This was at approximately 6:00 p.m.
At 6:13 p .m., po lice we re notifie d of a b ody in the parking lot at the Day’s Inn.
According to witnesses, Poklemba was lying face down on the pavement with a
hooded parka or jack et hoo d over his he ad. O ne of th ose w itness es, W illiam Nix,
pulled back the hood of the jacket in order to check Poklemba for a pulse. When he
-17-
didn’t find a pulse, he asked another witness to get the police . Mr. Nix wa ited with
the body until the police arrived. Mr. Nix also recalled that there was a silver military
style pocket knife laying next to the body.
The medical exa miner, Dr. Charles Harlan, found that Poklemba died from a
contact gunshot wound to the back of his head. The jacket hood did not have a
bullet hole in it.
During the sentencing phase, Defendant offered the testimony o f his father,
an older sister named Margaret, an older brother named Matthew, a family friend
and former teach er of D efend ant’s n ame d Ray Bould in, a fam ily friend and former
neighbor of the Munns named Abby Stokes, the family pediatrician named Dr. Jerry
Cam pbell, and a friend and fellow church mem ber, To ny Graff. A ccording to these
witnesses, Defendant was born on April 24, 1977, and was the third of the ten
children of Ron and R ita Mun n. His fa ther, R on Mu nn, is a senio r engineer with
Corporate Technology as an operating contractor at the Arnold Engineering
Developm ent Center. Defendant was raised in Manchester and was a member of
the Catholic church which he attended regularly. Defendant had done volunteer
work in a nursing hom e, was active in the Boy Scouts, and played soccer. He made
good grades in high school, was well-known, well-liked and came from a good
family.
At the time of Poklemba’s murder, Defendant was in his third month of college.
On Nove mbe r 6, 199 5, De fenda nt had com pleted a written application requesting
to change rooms because he was not comfortable with Poklemba as his roommate.
Defendant was never known to have been in trouble prior to this inc ident. D uring h is
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release on bon d, Defen dant lived w ith his fam ily and help ed his m other with her
catering business.
I. Fourth A mend ment, 1 8 U.S.C . § 2510 et seq.,
and Tenn. Code Ann. § 40-6-301 et seq.
In his first issue, Defendant claim s that c ertain o f his videotap ed statem ents
shou ld have been suppressed because they were taped in violation of his Fourth
Amendment rights and in violation of federal and state statutes regarding
wiretapping and elec tronic surve illance. See 18 U.S.C. § 2510 et seq.; Tenn. Code
Ann. § 40-6-301 et seq.
When an issue involving the supp ressio n of evid ence is presented for review,
the appellate cou rt must afford the findings of fact made by the trial court the weight
of a jury verdict. State v. Odom, 928 S.W.2d 18, 23 (T enn. 19 96); State v. Makoka,
885 S.W.2d 366, 371-72 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 199 4).
In addition, “the party prevailing in the trial court is entitled to the stronge st legitima te
view of the e videnc e add uced at the s uppre ssion hearin g as w ell as all re ason able
and legitimate inference s that may be drawn from that evidence.” Odom, 928
S.W.2d at 23. Consequently, an appellate court must affirm the judgment of the trial
court unless evidence contained in the record preponderates against the findings of
fact made by the court or a ru le of law ha s been erroneo usly app lied. Id.; Makoka,
885 S.W.2d at 371-72. In evaluating the correctness of a trial court’s ruling on a
pretrial motion to suppress, this Court may consider the proof adduced both at the
suppression hearing and at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn.
1998).
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A. Fourth Amendment
As to his Fou rth Am endm ent claim , Defend ant asserts that he had a
reaso nable expectation of privacy while seated in the police interrogation room.
Specifically, Defendant claims that the statements made to his mother and father
while they were “alone” in the booking room should be suppressed because they
were led to believe th at they we re carrying on private convers ations.
The Fourth Amendm ent provides:
Unreasonable searches and seizures. -- The right of the
peop le to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon
proba ble cause, supported by oath or affirmation, and
particu larly describing the place to be searched, and the
persons or things to be seized.
Under the Fourth Amendment, it is generally recognized that the application
of the constitutional limitations upon governmental intrusion into an individu al's
matters or activities, i.e., whether or not a search occurs, depends upon whether or
not the individual has a reasonab le expectation of privac y relative to those ma tters
or activities. See Califo rnia v. C iraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90
L. Ed. 2d 2 10 (198 6); United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct.
1652, 1656, 80 L. Ed. 2d 85 (1984); Katz v. United States, 389 U.S. 347, 360, 88 S.
Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J. concu rring); State v. Roode, 643
S.W.2d 651, 652-5 3 (Te nn. 19 82). T hese case s reflec t that in determ ining w hat is
a con stitution ally prot ected reaso nable expectation of privac y, a two-part inquiry is
made: (1) has the pers on man ifested a subjective expectation of privacy in the object
of the challenged intrusion and (2) is society willing to recognize that expectation as
reaso nable or justified. See also State v. Bowling, 867 S.W.2d 338, 341 (Tenn. Crim.
-20-
App. 1993). Pointing out that the Fourth Amendment was m eant to protec t peop le
and not places, the United States Supreme Court expressed in Katz that wha t a
person seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected. 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576.
Wh ere the go vernm ent viola tes an expec tation o f privacy which is both subje ctively
and reasonab ly entertained, evidence obtained thereby is not admissible in a
criminal p rosecu tion. Id. at 361, 88 S. Ct. 507, 19 L. Ed. 2d 576.
In this case , Defend ant was required to establish both that he expec ted his
conversations with his mother and father to be private and that such expectation was
objec tively rea sona ble or justified. As to the first requirement, the trial court made
no specific finding of facts about Defendant’s subjective expectation of privacy as to
his conversation with his parents. Therefore, due to the lack of factual findings
concerning this issue, we must employ a de novo standard of review. See State v.
Doug herty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996). After a careful review of the
video tape and the testimony presented, we conclude tha t Defendan t did in fact have
a subjec tive expec tation of priva cy.
The State argues that by Defendant and his mother leaning in close to each
other and speaking in more hushed tones than when others were present indicates
that they did not expect th eir conve rsation to be private. However, we believe that
Defendant and his mother expected just the opposite. First, Defendant had
previo usly asked for the officer to turn off the audio cassette recorder that was visibly
located on the table in the inte rroga tion roo m, the reby le ading him to believe that his
stateme nts were no longer b eing tape d. Seco nd, the offic er invited M rs. Munn to
speak with her son “by himself.” That specific phrase was repeated two additional
-21-
times. Officer Guthrie then asked Defendant if he wanted to “talk to your momma
by yourse lf?” W hen D efend ant sa id that h e wou ld, Offic er Gu thrie m oved a chair
next to Defendant for Mrs. Munn, and then both officers left the room and shut the
door behin d them . This likely could have le d Def enda nt to be lieve tha t he an d his
mother would be talking privately with one another. Third, the very nature of the
conversation, a son confessing to his mother that he killed anoth er hum an be ing, is
certain ly an emotional moment between a moth er and h er son. After w atchin g this
videotaped conversation, we believe the closen ess in proximity between Defendant
and his mother was a natural response under the circumstances. Detec tive Gu thrie
even testified at the suppression hearing that he found the mother’s actions to be
“suppo rtive.” Furthermore, it was the officer who placed the chair so close to the
Defen dant, not Mrs. Munn . Also, altho ugh the y may n ot have b een sp eaking quite
as loudly as when the officers were in the room , Defendan t and his mo ther were
certain ly not whispering so low as to lead us to believe that they though t they were
being secretly monitored. Based on all the above reasons, we find that Defendant
did in fact have a subje ctive ex pecta tion of p rivacy in his con versa tion with his
mother. Likew ise, alth ough the offic ers did not sp ecifica lly say ag ain that Defendant
and his fath er cou ld talk “a lone,” D efend ant’s e xpecta tion tha t the co nvers ations in
that room were private certainly carries over to his later conversations with his father
in that sam e room .
W e must next analyze the second prong as to whether the expectation was
objec tively reasonable. Thus, the question becomes, whether this expectation,
viewed objectively, was reasonable and justifiab le? This Court’s in quiry into
reasonableness asks “whether, if the particular form of surveillance practiced by the
police is permitted to go u nregulated b y constitutional restraints, the amount of
-22-
privacy and freedom remaining to citizens would be diminished to a compass
inconsistent with the aims of a free and open society.” United States v. Hendrickson,
940 F.2d 320, 322 (8th Cir.), cert. denied, 502 U.S. 992, 112 S. Ct. 610, 116 L. Ed.
2d 633 (1991) (citations omitted). Based upon the facts of this case, we find that
Defen dant did n ot have a justified and reason able exp ectation o f privacy.
It is well-settled law in this State that a person does not have an expectation
of privacy in a jail cell, State v. D ulswoth , 781 S.W.2d 277, 284 (Tenn. 1989), on a
jail house telephon e, State v. Leonard D. Hutchison, C.C.A. No. 1028, K nox Co unty
(Tenn. Crim. A pp., July 23 , 1987), o r in the bac k of a police cruiser, State v. Tilson,
929 S.W.2d 380 (Tenn. Crim. App. 1996). The United States Supreme Court has
held that “society is not prepared to recognize as legitimate any subje ctive
expectation of privacy that a prisoner might have in his prison cell . . . [t]he
recognition of privacy rights for prisoners in their individual cells simply cannot be
reconciled with the concept of incarceration and the needs and objectives of penal
institutions.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82 L. Ed.
2d 393 (1 984). L ikewis e it follow s that th ere is no exp ectatio n of priva cy on a jail
house telephone since “it is obvious that a jail shares none of the attributes of
privacy of a home, an automo bile, an office, or a hotel room,” and it is not the
equivalent of a m an’s h ouse , within c onstitu tional p rotectio n, nor is it a place whe re
he can claim constitutional immunity from search or seizure of his person, papers,
or effects. Lanza v. Ne w York, 370 U.S. 139, 143-44, 82 S. Ct. 1218, 1220-21, 8 L.
Ed. 384 (1962). Again, courts have held that no reasonable expectation of privacy
exists in the back seat area of a police car as it has been argued that the back seat
of a police car is e quivale nt to a ja il cell. See United States v. McKinnon, 985 F.2d
525, 527-28 (11th Cir. 1993). Because the facts of the case before us involve
-23-
circumstances which differ somewhat from the above-mentioned cases, we analyze
the issue w ith thes e cas es in mind , while looking to other jurisdictions for guidance
as well.
In State v. Wilkins, 868 P .2d 12 31 (Ida ho 19 94), the arreste e-defe ndan t told
the police officer interrogating him that he would like to be alone with his parents.
He then asked the officer to turn off the tape recorder that had been used during the
interrogation. The officer turned off the tape recorder and left the booking room so
defendant could speak with his parents. However, the emergency dispatcher for the
city heard and recorded the conversation over an intercom system. The
conversation between the defendant and his parents was admitted into evidence.
In denyin g his motion to suppress, the trial court noted that “the dispatcher, who
recorded the conversation between the defendant and his parents, testified that she
listened to conversations in the police booking room regularly for the purpose of
police safety.” Id. at 1237. The dispatcher had testified that whenever someone
was booked, that the monitoring was used as a safety feature in case someth ing
happened and someone needed help. Th e trial court sta ted that “the need . . . to
have a safe and secure police station outweighs any expectation of privacy the
defendant could poss ibly ma intain in this particular setting.” Id. at 1238. The Idaho
Supreme Court agreed with the trial court and ruled that although the defendant had
a subjective expectation of privacy, it was not a reas onab le expectation of privac y.
The supreme court held that “[i]t would be contrary to the governmental interest in
maintaining security and order in facilities where those accused or convicted of crime
are detained or incarcerated to allow an ind ividual d efend ant to c urtail ele ctronic
surveillance of visiting areas by requesting privacy.” Id. It went on to say that
“[g]iven the nece ssity of th is surve illance , the fac t that the police officer in this case
-24-
turned off the tape recorder and left the booking room at [defendant’s] request is not
sufficient to establish an objectively reasonable and justifiable expectation of privacy
in [defendant’s] co nversation with his p arents.” Id.
In State v. Calhoun, 479 So . 2d 241 (Fla. Dist. Ct. App. 1985), the trial court
held that the incarcerated defendant did have a reas onab le expe ctation that his
conversation with his brother in a police interr ogation room w as secu re and p rivate
because such an expectation was deliberately fostered by the police officers and
because Defenda nt had previously expressly invoked his Fifth and Sixth amendment
rights. One o f the officers testified that the conversation was monitored “for
investigative purposes, not just for security.” The appellate court affirmed the
decision, but in a concurring opinion, the judge stated “[h]ad the suspect in this case
not exercise d his rights to rema in silent and to reque st cou nsel, th e video tape w ould
have been lawfully obtained evide nce.” Id. at 245-4 6.
In State v. Hauss, 688 P.2d 1051 (Ariz. Ct. App. 1984), the arrestee-defendant
told the police that he wou ld discus s the crim es with them if they wo uld first le t him
speak with his girlfriend. The officer told the girlfriend that the room was being
monitored and s he rep lied either “OK” or “All right.” Both of the officers involved
testified they were conce rned with the pass ing of a we apon, the discussion of
poss ible escape plans, plans to destroy evid ence , and e ven the girlfriend ’s
involvement in the crimes. The police had hoped the defendant would discuss the
case after talking with his girlfriend as he said he would. However, the defendant
confessed these crimes to his girlfriend an d these tapes w ere adm itted into
evidence. The police did not expec t that he would confess his involvement in these
crimes to his girlfriend. The court held that any expectation of privacy defendant had
-25-
was outweig hed by th e need to mainta in security. Id. at 1055. Also, the court
mentioned the fact that the girlfriend had at least impliedly consented to the taping.
In United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435
U.S. 1000, 98 S . Ct. 1656 , 56 L. Ed . 2d 90 (1 978), the court he ld that the taped
conversation between defendant and a childhood friend which was monitored and
recorded by jail officials was properly admitted, as the intrusion by jail officials,
pursuant to esta blishe d jail policy, did no t violate the F ourth Am endm ent. Also, there
was no violation of defendant’s Sixth Amendment right to assistance of counsel as
there was no interroga tion of defe ndant, either formally or surreptitiously, by the
governm ent durin g the con versation with his friend .
In the case sub judice, we do not believe the trial court erred in denying
Defe ndan t’s motion to sup press the statem ents mad e to his mothe r and his father.
Although we do not necessarily condone the surrep titious m anne r in which the police
video taped Defendant in this case, we cannot, as a matter of law, say that those
actions violated Defend ant’s Fourth A mendm ent rights. Officer Peel testified that the
hidden video camera is used in “[m]ajor felony interviews, major investigations. And
now mos tly just about all the time with a ny investiga tion since we’ve go t it operative.”
Although we can find no testim ony that th e hidde n cam era is use d for safety
purposes as was established in the cases cited above, we can say that this has
obviou sly become ordinary, police station procedure at this particular police station.
Although Defendant was not under arrest at the time he made the statements, as
again distinguished from the cases cited above, case law does not distinguish
between pre-arrest and post-arrest statements for purposes of analyzing the
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reasonableness of a defen dant’s exp ectation o f privacy. See McKinnon, 985 F.2d
at 528.
W e do not ho ld that a defendant’s statements obtained through the
surreptitious taping in a police station interview room will always be admissible.
Howeve r, under th e facts of this case, we hold that although Defendant had a
subjective expectation of privacy, he did not have a legitimate or reasonable
expec tation of privacy. W e note that ha d the c onver sation s bee n of a le gally
recognized confidential nature by virtue of the relationship between Defendant and
the person with whom he was communicating at the time of the surveillance (e.g.
conversations between defendants and their attorneys, licensed physicians, and
religious a dvisers), ou r holding m ight be diffe rent.
B. Federal and State Wiretapping Statutes
Defendant also argues the recording of his conversation with his mother
violated Title III of the Omnibus Crime and Control and Safe Streets Act of 1968
(Title III), as well as the Te nness ee W iretapping and Ele ctronic S urveillance Act,
both of whic h proh ibit the u nauth orized interception and disclosure of oral
communications. See 18 U.S.C. § 2511(1)(a); Tenn. Code Ann. § 40-6-301 et seq.
“Oral communications” is defined in the federal sta tute as “any oral communication
uttered by a person exhibiting an expectation that such communication is not subject
to interception under circumstances justifying such expectation, but such term does
not include a ny electro nic com munic ation;” 18 U .S.C. § 2510(2 ). Our state statute
is essen tially identical. See Tenn. C ode Ann . § 40-6-303(1 4). The definition of “oral
communication” has been interpreted to include the reasonable expectation of
privacy standard used for Fourth A mend ment p urpose s. See United States v. Hall,
-27-
488 F.2d 19 3, 196 (9 th Cir. 197 3); S. Re p. No. 10 97, 90th Cong . 2d Ses s., reprinted
in 1968 U.S. Code Cong. & Admin. News 2178 (the definition was intended to be
interpreted in accordance with the principles enunciated in Katz). In other words,
we should use the same standard for determining the protection of the wiretap laws
as is emp loyed in Fourth Amendment cases. Therefore, as we did in the case of the
Fourth Amendment claim above, we also conclude that Defendant was not entitled
to the pro tection of th e federa l and state wiretap law s. This iss ue is witho ut merit.
II. Miranda
(Defen dant’s Iss ue III.)
Defendant argues that the statements should have been suppressed because
he was not advised of his Miranda warnin gs eve n thou gh he was a lleged ly in
custody when he m ade incrimina ting statemen ts. In reviewing this issue, we are
again mindful that a n appe llate court m ust uph old a trial cou rt’s finding of fa ct in a
suppression hearing unless the evidence in the record preponderates against those
findings. Odom, 928 S.W.2d at 23.
In Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d
694 (1966), the United States Supreme Court ruled that the Fifth and F ourteen th
Amendmen ts' prohibition against compelled self-incrimination requires police
officers, before initiating questioning, to advise the putative defend ant of his righ t to
rema in silent and his rig ht to coun sel. Spe cifically, Miranda requires police to inform
the person being questioned that (a) he has the right to remain silent; (b) any
statement made may be used as evidence against him; (c) he has the right to the
presence of an atto rney; and (d) if he cannot afford an attorney, one will be
-28-
appointed for him prior to questioning, if he so desires. 3 84 U.S . at 444, 86 S. Ct.
at 1612, 16 L. Ed . 2d 694 . If these warnings are not given, statements elicited from
the individual may not be admitted for certain pu rposes in a crimin al trial. Stansbury
v. Califo rnia, 511 U .S. 318, 3 22, 114 S. Ct. 1526, 152 8, 128 L. Ed. 2 d 293 (199 4).
Howeve r, an officer's obligation to administer Miranda warnings only attaches
"where there h as be en su ch a re striction on a p erson 's freed om a s to ren der him ‘in
custo dy.’” Id. (quoting Oregon v. Mathiason, 429 U.S . 492, 495 , 97 S. C t. 711, 714,
50 L. Ed. 2d 714 (1977)). In Miranda, the Court explained that a "custodial
interrogation" refers to "questioning initiated by law enforcem ent officers after a
person has been taken into custody or otherwise deprived of his freedom of action
in any sign ificant way." 3 84 U.S . at 444, 86 S. Ct. at 16 12.
Thus, when determining whether or not there was custodial interrogation, the initial
inquiry is whether the suspect was "in custody." The trial court will be given a wide
latitude of discr etion in its decision, and that decision will not be overturned by this
Court unless it appears there has been an abuse of the trial court's discretion and
a violation of the appellan t's rights. See State v. S mith, 868 S.W.2d 561, 570 (Tenn.
1993), cert. denied, 513 U.S. 960, 115 S. Ct. 417, 1 30 L. Ed . 2d 333 (1994); State
v. Nakdimen, 735 S.W .2d 799 , 802 (T enn. C rim. App . 1987).
"The initial determination of custody depends on the objective circumstances
of the interrogation, not on the subjective views harbored by either the interrogating
officers or the person being question ed." Stansbury , 511 U.S . at 323, 11 4 S. Ct. at
1529, 128 L. Ed. 2 d 293 . Spec ifically, the inquiry is "how a reaso nable [perso n] in
the suspect's position would have understood his situa tion," i.e., w ould h e have felt
that he was not free to lea ve and, thus, in cu stody. Berkem er v. McC arty, 468 U.S.
-29-
420, 442, 10 4 S. Ct. 3138 , 3151, 8 2 L. Ed. 2 d 317 (1 984). See also Michigan v.
Chesternut, 486 U.S. 56 7, 573, 108 S . Ct. 1975, 197 9, 100 L. Ed. 2 d 565 (198 8);
State v. Mosier, 888 S.W.2d 781, 784 (Tenn . Crim. A pp. 199 4); State v. Furlough,
797 S.W .2d 631 , 639 (T enn. C rim. App . 1990).
The Tennes see Sup reme C ourt has expressly adopted the objec tive ana lysis
employed by the United State Supreme Court and rejected as irrelevant to the
determination of custody any inquiry into the subjective beliefs of law enforcement
officials about the culpability or g uilt of the per son be ing que stioned. State v.
Anderson, 937 S.W .2d 851 (Te nn. 1996). T he court ado pted several no nexclusive
factors to aid in the objecti ve ass essm ent of w hethe r a reas onab le pers on wo uld
consider hims elf or herse lf deprived o f freedom of move ment to a degree associated
with a formal arrest. Relevant factors include the following:
(1) the tim e and locatio n of the interrogation; (2) the
duration and character of the questioning; (3) the o fficer’s
tone of voice and general demeanor; (4) the method of
transportation to the place of questioning; (5) the number
of police officers present; (6) limitations on movement or
other forms of restraint imposed during the interrogation;
(7) interactions between the officer and the person being
questioned, including the words spoken by the officer and
the verbal or nonve rbal responses of the person being
questioned; (8) the extent to which the person being
questioned is confronted with the officer’s suspicions of
guilt or evidence of guilt; and finally (9) the extent to which
the person being ques tioned is awa re that h e or sh e is
free to refrain from answering questions or to end the
interview a t will.
Anderson, 937 S.W.2d at 855. Although Miranda says the type of interrogation
prohibited must be initiated by a law enforcement official, Anderson, 937 S.W.2d at
853, the term “interrogation” for Miranda purposes refers to “[N]ot only express
questioning, but also to any words or actions on the part of the police (other than
-30-
those normally attendant to arrest and custody) that the police should know are
reaso nably likely to elicit an incriminating response from the suspect. . . . A practice
that the po lice sho uld kn ow is reasonably likely to evoke an incriminating response
from a suspe ct thus am ounts to interrogation.” Rho de Isla nd v. Inn is, 446 U.S. 291,
301, 100 S . Ct. 1682, 168 9, 64 L. Ed. 2d 297 (1980 ).
It should be noted that the fact that an interview takes place at a police station
or that the environm ent is perceived to b e “coercive” is not determinative of the
custody issue. For example, in Oregon v. Mathiason, the Court noted the following:
Any interview of one suspected of a crime by a police
officer will have coercive aspe cts to it, sim ply by virtue of
the fact that the police officer is part of a law enforcement
system which may ultimately cause the suspect to be
charged with a crime. But police officers are not required
to administer M iranda warning s to everyone whom they
question. Nor is the requirement of warnings to be
imposed simply because the qu estion ing tak es pla ce in
the station house, or because the questione d pers on is
one wh om the police su spect.
429 U.S. at 495, 97 S. Ct. at 714.
W e should m ention tha t our review of this issue is aided b y the fact that
Defe ndan t’s statem ents are in the record as audio visual tape recordings.
Considering the totality of the circ ums tance s, includ ing the factors deline ated in
Anderson, the evidence in the record does not preponderate against the lower
court’s finding that Defendant was not in custody when he was interviewed by law
enforcement officials. In this case there were actually a series of interviews. The
first one began at approximately 5 p.m. and it took place in a 12 x 12 foot room
marked “Felony Booking Room” at the Murfreesboro Police Department. The
officers had initiated contact with Defendant, but D efenda nt volunta rily agreed to
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come to the station with his fam ily to clear up discrepancies the officers had found
in Defe ndan t’s story about what happened. The officers talked with Defendant for
3 ½ - 4 hours after which time Defendant was formally arrested. At times, the
officers ques tioned Defe ndan t alone in the ro om, a t times certain family mem bers
and the officers were present, and at times, it was just Defendant and one or both
of his pa rents p resen t. The police did vigo rously q uestio n Def enda nt and at certa in
times even accused Defendant of not telling the truth or at least not telling the whole
story. Specifically, the officers told Defendant “it’s time to tell the truth,” “you know
who killed him ,” and “y our sto ry doe sn’t ho ld wate r.” The officers even to ld
Defe ndan t’s mother, in the presence of Defendant, that they knew Defendant had
killed the victim. However, even though the officers were extremely inquisitive and
often times accusatory, their demeanor was always polite and courteous towards
Defen dant. In fac t, during the interview D efendant told h is mother that the officers
were being nice to him and that they were no t intimid ating h im. De fenda nt is
reminded throughout the interview that he is not under arrest and is free to leave at
any time. However, on at least three o ccas ions, D efend ant m ention ed tha t he wo uld
like to come back the following Monday and talk to the officers w hen his pare nts are
not with him. On each occasion, it appears that the officers either changed the
subject or kept pressing him to tell the truth. Nonetheless, until near the end of the
interview when Defendant indicated that he thought he could go home and the
officers advised him that he would be arrested that night, there is no evidence in the
record th at Defen dant tried to leave the room a nd that the officers refu sed.
In consideration of all the foregoing, we cannot say that Defendant was
subject to custodial interrogation. Although there are certainly some factors which
point towards custo dial inte rroga tion, the eviden ce as a who le in the rec ord sim ply
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does not preponderate against the trial court’s determination that Defendant was not
in custod y during th e interview . There fore, this issu e is withou t merit.
III. Voluntariness
(Defen dant’s Iss ue II.)
In addition to his argument in the preceding issue tha t he was subject to
custodial interrogation, Defendant also contends that his statements were not
volunta rily given. Specifically, Defendant argues that all of his statements sho uld
have been suppressed, or at least the statem ents mad e to his mothe r and father,
because they were not voluntarily given. In denying Defendant’s motion to suppress,
the trial court sim ply stated th at Defen dant’s sta temen ts were “certainly volunta ry”
but did not further address this issue or make any detailed findings of fact as to why
the stateme nts were in fact volun tary.
Along with the principles discussed in Issue II, the United States Supreme
Court has also interpreted the Fifth Amendment to require that an incriminating
statement or confession be freely and voluntarily given in order to be admissible.
This even applies to statements obtained after the prop er Miranda warnings ha ve
been issued. See State v. Kelly, 603 S.W.2d 726 (Tenn. 1980). Statements and
confessions not made as a result of custodial interrogations must also be voluntary
to be adm issible. See Arizona v. Fulima nte, 499 U.S. 279, 286-88 , 111 S. C t. 1246,
1252-53, 113 L. E d. 2d 30 2 (1991 ). It must not be extracted by “any so rt of threats
or violence, nor obtained by any direct or implied promises, however slight, nor by
the exertion o f any imp roper influe nce.” Bram v. United States, 168 U.S. 532, 542-
43, 18 S. Ct. 183, 187, 42 L. Ed. 568 (1897) (citation omitted). Moreover, due
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process requires that confessions tendered in response to either physical or
psychological coercion be supp ressed . Rogers. v. Richmond, 365 U.S. 534, 540-41,
81 S. Ct. 735, 739, 5 L. Ed. 2d 7 60 (196 1); Kelly, 603 S.W.2d at 728-29. This has
evolved into the “tota lity of circum stance s” test to determine whether a confession
is voluntary. Fulima nte, 499 U.S. at 285-87, 111 S. C t at 1251- 52; State v. Crump,
834 S.W .2d 265 , 271 (T enn.), cert. denied, 506 U.S. 905, 113 S. Ct. 298, 121 L. Ed.
2d 221 (19 92).
The voluntariness test under the Tennessee Constitution has been said to be
more protective of individual rights than the test under the United States
Constitution. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). For the
relinquishment of rights to be effective, Defendant must have personal awareness
of both the n ature of the right and th e cons equen ces of ab andon ing his righ ts. See
id. at 544-45. Additionally, his statements cannot be the result of intimidation,
coercion or dece ption. Id. at 544. In determining whether the statem ents were
voluntary, the reviewing court looks at the totality of the circumstances surrounding
the relinqu ishme nt of the righ t. Id. at 545.
The trial court found that the statem ents were m ade voluntarily. W e have
studied th e eviden ce, cons idering the totality of the circumstances, and we cannot
conclude that the trial court erred by denying Defendant’s motion to suppress on this
issue. The court’s determination that the statements were given knowingly and
volunta rily is binding upon the appellate courts unless the defendant establishes that
the evidence in the record preponderates against th e trial court’s ru ling. Odom, 928
S.W.2d at 23. There is no sufficient basis for holding that the alleged admissions
were not free and voluntary simply because the Defendant was unaware, at the time
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of the conversations, that he was being recorded. Deception itself does not render
statem ents inadm issible where the deception is not of the type reason ably likely to
procure an untru e statem ent. See R.K. Procu nier v. A tchely, 400 U.S. 446, 448-49,
91 S. Ct. 485, 487, 27 L. Ed. 2d 524 (1971). Therefore, Defendant has fa iled to
meet his burden of demonstrating that the evidence preponderates against the trial
court’s holding. Although the atmosp here surroun ding the interroga tion may have
proved distressin g to this 18 -year-old m an, there is little evidence to support that the
statement was coerced or in any way involuntarily g iven. This issue is with out me rit.
IV. Fifth Amendment Right to Counsel
Defendant argues that his videotaped statements should have been
suppressed beca use th ey wer e obta ined in violation of his Fifth Am endm ent right to
coun sel. Defen dant a sserts that he expre ssed a des ire to have coun sel prese nt,
and that the officers should have ceas ed all q uestio ning o r shou ld have limited their
questioning to a clarification of whether he desired to have an attorney.
First of all we will m ention tha t the Fifth Amendment provides the right to
counsel at any po lice-initiated cu stodial interr ogation . See, e.g., Edwards v. Arizona,
451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2 d 378 (1 981); State v. Huddleston, 924
S.W.2d 666 (Ten n. 1996); State v. Bates, 804 S.W.2d 868 (Tenn. 1991). Only the
suspect can ass ert his right to c ounse l. See Huddleston, 924 S.W .2d at 669-7 0
(citing Davis v. United States, 512 U.S . 452, 114 S. Ct. 2350, 1 29 L. E d. 2d 362
(1994). H oweve r, as discu ssed a t length in Iss ue II, Defendant was not subject to
custodial interrogation and therefore the officers were under no obligation to issue
Miranda warnings.
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At some point after Defendant confessed to the murder, the officers did tell
Defendant to read a sheet of paper containing the Miranda warnings. When he
finished reading them, Defendant refused to sign the wa iver, bu t he told the officers
that he did unde rstand the wa rnings. Soon after he read the warnings, the o fficers
asked Defendant, “Reckon we can find the billfold,” to which Defendant responded,
“I can help you find it, the ke ys too.” Defen dant h ad no t reque sted a lawyer at this
point, so these statements are admissible.
Defendant did eve ntually te ll the officers that he wanted a lawyer. Specifically,
he said, “get a lawyer, that would probably be the best thing . . . get lawyer.” He
went on to say that he w as “waiting on a lawy er.” Once Defendant had
uneq uivoca lly requested a n attorney, the officers were required to cease further
questioning of Defen dant. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880,
68 L. Ed. 2d 378 (1981); State v. Huddleston, 924 S.W .2d 666 (Te nn. 1996).
Howeve r, after carefully reviewing the transcript of the tapes and the tapes
themselves, we are of the opinion that any incriminating statement Defendant made
after asserting his Fifth A men dme nt right w as in re spon se to q uestio ns by h is
mother, not the officers. The following conversation ensued between Defendant and
Mrs. Munn after he express ed a desire for a n attorney:
Mrs. Munn : Rudy are you sorry?
Defenda nt: Not really.
Mrs. Munn : Why?
Defendant: He was a dirty little son of a bitch, looked at
porno m agazin es, . . which is why . .
Mrs. Munn : W hy wou ld you w ant to k ill him, did he do
something to you?
-36-
Defen dant: . . . other th an he w as a jerk.
The type of interrogation prohibited by Miranda must be initiated by a law
enforcement official. Anderson, 937 S.W.2d at 853. Since the incriminating
statem ents were m ade in response to his mother’s questions, those statem ents are
admissible. The trial court made no finding of fact that Mrs. Munn was acting as an
“agent” or an “exte nsion” of th e officers. Likewise , we do no find an y objective
evidence in the record that the officers were using the mother to elicit further
information from Defendant. Defendant has made no showing that his mother acted
at the beh est of the o fficers or an y other Sta te agen t.
Furthermore, any error in the admission of Defendant’s statements after
stating he wanted a lawyer wa s, at mos t, harmle ss beyo nd a rea sonab le doub t.
Tenn. R. App . P. 36(b). Proof of guilt was overwhelming, and the foregoing
statem ents were merely cumulative to other admissible evidenc e whic h clea rly
establish ed guilt. See Hartm an v. State , 896 S.W .2d 94 (Ten n. 1995).
V. De rivative E videnc e Rule
Defendant argues that the admissibility of his taped confession to his mother
violated his constitutional rights, and that any subsequent confession is also tainted.
Since we have ruled that Defendant’s confession of the murder to his mother did not
violate any of his constitutional rights, the derivative evidence rule, or “fruit of the
poisonous tree” rule, is wholly inap plicable. See State v. Underwood, 669 S.W.2d
700 (Tenn. Crim . App.), perm. to appeal denied (Tenn. 1984). This issue is without
merit.
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VI. Sufficiency of the Evidence
Defendant argues that the evidence is insufficient to support the jury’s gu ilty
verdict of first degree murder. When an accused challenges the sufficiency of the
convicting evidence, the standard is whether, after reviewing the evidence in the light
most favorable to the prosection, any rational trier of fact could have found the
essential elements of the crime b eyond a reason able do ubt. Jack son v. V irginia,
443 U.S. 3 07, 31 9 (197 9). Th is stan dard is applic able to finding s of gu ilt predicated
upon direct e videnc e, circumstantial evidence or a combination of direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). On appeal, the State is entitled to the stronges t legitimate view of the
evidence and all inferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the trier
of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493
S.W .2d 474, 476 (Tenn. 197 3).
Questions concerning the credibility of the witnesse s, the weig ht and va lue to
be given the evidence, as well as all factual issues raised b y the evidence, a re
resolved by the trier of fact, not this c ourt. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied (Tenn . 1987). Nor may this court
reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict
approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts
in favor of the State. Grace, 493 S.W .2d at 476 .
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All homicides are presumed to be murder in the sec ond de gree. State v.
West , 844 S.W .2d 144 , 147 (T enn. 19 92); State v. Brown, 836 S.W .2d 530 , 543
(Tenn. 1992). That State b ears the burd en to pro ve prem editation in order to e levate
the offens e to mu rder in the firs t degree . West, 844 S.W.2d at 147.
At the time the offense was com mitted , first deg ree m urder not co mm itted in
the perpetration of one of several specifically enumerated crimes required the
“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-
202(a)(1). A prem editate d act is one “done after the exercise of reflection and
judgm ent” and requires a previously formed desig n or inte nt to kill. Tenn. Code Ann.
§ 39-13-2 02(d); West, 844 S.W .2d at 147 . The ele ment of premeditation is a
question for the jury and may be inferred from the manner and circumstances of the
killing. State v. Bord is, 905 S.W.2d 214, 221 (Tenn. Crim. App. ), perm. to appeal
denied (Tenn . 1995); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993),
perm. to appeal denied (Tenn. 199 4).
In the present case, Defendant clearly planned the murder, procured a
weapon, lured the victim to the D ay’s Inn , and c ause d the vic tim to pos ition him self
so that Defendant could deliver a single shot to the back of his head. Following the
murder, Defendant hid the victim ’s vehicle a nd then attemp ted to mislead the police
during their investig ation. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)
(citation omitted) (evidence of use of deadly weapon on unarmed victim,
preparations prior to killing for purposes o f concealm ent, and cruelty of killing are
relevant circum stanc es in establishing prem editatio n). As m ention ed ea rlier in this
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opinion, Defendant offered the following detailed statements showing a
“premeditated and intentional killing” of the victim:
W ell, we had to go somewhere else. I told him we were
going to go ___ and meet somebody but he ___ the
license plates on the car, so if we did get ca ught it w ould
be hard to find when we did that, when he knelt dow n to
unscrew the license plate. Then I shot him in the back of
his head. He fell down and I ro lled him over an d took his
license a nd wallet.
...
Ron Munn: You shot him?
Defendant: Yes.
Ron M unn: W hy’d you d o it?
Defenda nt: For mon ey.
Ron M unn: Fo r what?
Defen dant: For money. I hate it that I had to ask you for
money, never enough.
Ron Mu nn: Rudy.
Defendant: Plus, I hated the kid -- he was a jack-ass.
Ron Mu nn: Rudy.
...
It was in tention al. I did it on purp ose. I knew exactly what
I was gonna to do. I knew wha t to take to take his
identification. I wish I co uld ha ve put h is car somew here
else but Abernathy was the farthest away from Sharp that
there was, that I could think of, without having to walk too
far. That’s why I put it over there.
Furthermore, Defendant confessed to the murder, and we h ave pr evious ly
found that confe ssion to b e adm issible. Eve n abse nt the con fession, there is still
certain ly sufficient circumstantial evidence from which the jury could find that
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Defendant had a “previou sly formed de sign or intent to kill.” West, 844 S.W.2d at
147. Th is issue is w ithout me rit.
VII. Mistrial
In this issue, Defendant argues that certain comm ents mad e by Detective
Guthrie should have resulted in a mistrial. Specifically, Detective Guthrie testified
during direct examination to the following:
Q: (General Newman) Now, I believe that there has been
prepared and you have helped in preparing a transcript of
this particu lar interview; is th at correc t?
A: (Detective G uthrie) Yes, sir.
Q: (General Newman) And what is the significance of the
blank portions of that interview or the blank spaces: What
does that indicate?
A: (Detective Guthrie) Certain th ings we re left out that
would b e dam aging to th e defen se.
Following this exchange, defense counsel objected and moved for a mistrial. The
blank spac es in the transcript and o n the tape we re there b ecau se the parties could
not agree as to what was being said during that particular portion of the videotape.
The judge ruled that the transcript would not be submitted to the jury and then ga ve
the following curative instruction:
Ladies and Gentlem en, the videotap es or tapes yo u are
about to view th is mo rning h ave be en ed ited to delete
portions thereof which were deemed by the court to be
either irreleva nt or im mate rial to this particular case. So
don’t concern yourselves with -- you’ll see some jumps
and there may b e some blank spots. D on’t concern
yours elf with those. There is nothing in there that you
should hea r.
-41-
Whether an occurren ce during the c ourse of a trial warrants the entry o f a
mistrial is a matter which addres ses itself to th e soun d discretio n of the trial co urt,
and this Cou rt will not interfere with the exercise of that discretion absent clear
abuse. State v. McPherson, 882 S.W .2d 365 , 370 (T enn. C rim. App . 1994), perm.
to appeal denied (Tenn. 1994). The burden of establishing the necessity for mistrial
lies with the pa rty seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim.
App. 1996). In making this determination, no abstract formula should be
mec hanic ally applied, and all circu mstan ces sho uld be tak en into ac count. State v.
Mounce, 859 S.W .2d 319, 322 (Tenn. 199 3).
It is well-established that jurors are presumed to follow the instructions given
by the trial judge. See State v. Laney, 654 S.W.2d 383, 389 (T enn. 19 83); State v.
Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985). Based on the adequacy
of the trial court’s instruction and Defendant’s failure to demonstrate prejudice, we
cannot say tha t the sta teme nt by D etective Guth rie “mo re prob ably than not affected
the judgm ent” in this ca se. Tenn. R . App. P. 36(b); Tenn. R. Crim. P. 52(a). Thus,
the trial court did not abuse its discretion in denying Defendant’s motion for a mistrial
as the statem ent did no t create a manifest necessity for a mistrial. Any error was
harmless . Tenn. R. A pp. P. 36(b); Te nn. R. Crim . P. 52(a).
VIII. Aggravating Circumstance (i)(7)
Defendant argues in this issue that there is an insufficient nexus between the
murder and the und erlying felony, thus m aking aggra vating circumstance (i)(7)
inapplicable.
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The jury found that the “murder was knowingly committed, solicited, directed,
or aided by the de fenda nt while the defendant had a substantial role in committing
or attempting to commit, or was fleeing after ha ving a s ubsta ntial role in committing
or attempting to commit, any . . . robbery . . . [or] theft.” Tenn. Code Ann. § 39-13-
204(i)(7).
In supp ort of his argument that the nexus between the murder and the
underlying felony is insufficient, Defendant relies on State v. Terry, 813 S.W.2d 420(Tenn. 1991). In Terry, the defendant was a preacher whom had embezzled
substantial sums of money from his congregation over a period of time. He began
stealing the money in March of 1987, and in June of 1987 the defendant killed the
church handyman, placed him in the church building, and then torched the building
in hope s that a uthoritie s wou ld think that it wa s defe ndan t’s body that would be found
in the ruins. Id. at 421. In sentencing the defendant to death for this offense, the
jury applied the felony murder aggravating circumstance on the basis of the
underlying larceny. Id. At the motion for new trial hearing, the trial judge granted the
defendant a new sentencing hearing. The judge found that the jury was warranted
in finding that a larceny had o ccurred, but he also found tha t the State did not pro ve
that the m urder was c omm itted wh ile the defendant was engaged in the commission
of the larcen y. Id. at 422. The Tennessee Supreme Court agreed with the trial
judge that there was an insufficient nexus between the murder and the larceny. Id.
at 424. In so holding, our supreme court stated that application of the felony murder
aggravating circumstance depends upon the “temporal, spatial and motivational
relationships between the capital murder and the collateral felony.” Id. at 423
(quoting 67 A.L.R .4th 887 , 892 (19 89)).
-43-
Applying those factors to the circumstances of this case, it is clear that
Defe ndan t’s argument is without merit. Here, the murder and the collateral felony
occurred at the same tim e and in th e sam e place. T he victim w as disco vered w ith
his pants po ckets turn ed inside out. Defendant confessed numerous times that he
killed the victim because of mo ney. Fu rtherm ore, he told the officers that he could
help them in finding the victim’s wa llet. Based on the physical evidence as well as
Defendant’s own admission, we conclude that the evidence is sufficient to support
the jury‘s findings as to ag gravating circum stance (i)(7).
IX. Jury Charge
Defendant argues in this issue that the trial court committed reversible error
as a result of several jury instructions prior to the jury’s deliberation concerning
sentencing.
A. Aggravating Circumstances
The jury was instructed on two aggravating circumstances: (1) the murder was
committed in order to avoid lawful arrest and (2) the murder was committed during
the course of a felony. See Tenn. C ode Ann . § 39-13-204 (i)(6) and (7). Howe ver,
the jury only found Defe ndan t had c omm itted the murd er durin g the cours e of a
felony. It did not find th at he had committed the murder in order to avoid lawful
arrest. Defen dant n everth eless argue s that n either a ggrav ating circumstanc e is
applic able to this ca se an d that in structin g the ju ry on tw o agg ravato rs resu lted in
great prejudice.
-44-
First, as discussed in the previous issue, the jury was prese nted w ith am ple
evidence in support of the aggravating circumstance that the murder was committed
during the cour se of a felo ny. See Tenn. Code Ann. § 39-13-204(i)(7). Second,
Defendant has not shown how instructing on the murder to avoid lawful arrest
prejud iced h im in any wa y. See Tenn . Code Ann. § 39-13-204(i)(6). Although we
may agree that aggravating circumstance (i)(6) was inapplicable to the facts o f this
case, we find no prejudice and any error in charging this was harmless. Tenn. R.
App. P . 36(b); Te nn. R. C rim. P. 52 (a).
B. Statutory De finition of Theft and R obbery
Defendant argues that the trial court erred by failing to instruct the jury on the
statutory definitions of theft and robbery. Specifically, Defendant argues that the trial
court’s use of T.P.I. Criminal 9.01 and 11.01 in charging the definitions of these
offenses wa s confusing to the jury.
The supreme court has held that a trial court is required to provide the jury
with the statutory definition of any felony relied upon by the State as an aggravating
circumstance under Tenn. Code Ann. § 39-13-20 4(i)(7). State v. Nich ols, 877
S.W.2d 722, 73 5 (Ten n. 1994 ); State v. Hines, 758 S.W.2d 515, 521-24 (Tenn.
1988). Furthermore, pattern jury instructions are not officially approved by this Court
or by the General Assembly and should be used only after careful analysis. They
are merely patterns or suggestions. While previously printed forms may be
conven ient, they m ust be revised or sup plem ented if nece ssary in order to fully and
accurately con form to applica ble law. See State v. Hodges, 944 S.W.2d 345, 354
(Tenn. 19 97).
-45-
After a careful review of the pattern instructions charged by the trial court and
the statutory de finitions of the ft and rob bery, we fin d that the d efinitions are very
similar, albeit the pattern instructions are lengthier and more specific. However, we
find no significant difference between the statutory definitions and the pattern
instructions and therefore, any error in not charging the statutory definitions of theft
and robbe ry is harmless. T enn. R. Ap p. 36(b); Ten n. R. Crim. P. 5 2(a).
C. Nonstatutory Mitigating Factor
Next, Defenda nt argues that the trial court erred by refusing to instruct the jury
that he had “n o crim inal rec ord or c onvictio n.” W e em phas ize at th e outs et that th is
alleged error is not of constitutiona l magnitude , as jury instructions on specific non-
statutory mitigating circumstances are not co nstitutiona lly mand ated. See Hodges,
944 S.W .2d at 351 -52; Odom, 928 S.W .2d at 30; State v. Hutchison, 898 S.W.2d
161, 173-7 4 (Tenn. 19 94). Therefore, the right to such instructions, as well as the
form an d conte nt of the ins tructions, d erives so lely from the statute.
The court charged the jury with the statutory mitigating factor which states that
“defendant has no significant h istory of prior crim inal activity.” Te nn. Co de Ann . §
39-13-204 (j)(1). However, Defendant urged the trial court to charge the jury that
Defendant had “no criminal record or conviction.” In Odom, which was decided
some six mo nths b efore th e insta nt cas e wen t to trial, the suprem e court interpreted
Tenn. Code Ann. § 3 9-13-20 4(e)(1) to re quire jury ins tructions o n non-s tatutory
mitigating circumstances raised by the evidence and proffered by a defendant as
having mitigating value. In addition, the court stated tha t instructing on non statutory
mitigating circumstances must n ot be fact s pecific an d imply to the jury that the judge
-46-
had made a finding of fact. Instead, the instructions on nonstatutory mitigating
circumstances must be “dra fted so that whe n they are considered by the jury, the
statutory mitigating circumstances are indistinguishable from the nonstatuto ry
mitigating circumstanc es.” Odom, 928 S.W.2d at 32. The supreme court further
interpreted the “no distinction” portion of the statute as precluding the trial judge from
revealing to the jury that a request was made and from identifying the party making
the requ est. Id.
Defendant does not specifically state why the mitigating factor proposed by
him should have been included. We do not believe that the instruction offered by the
court that the “defendant has no significant history of prio r criminal a ctivity” failed to
convey Defendant’s theory of mitigation to the jury. We find very little difference
between the two instructions. Furthermore, had the trial judge offered Defe ndan t’s
fact-sp ecific instruction, it could have implied to the jury that the judge had made a
finding of fact in contravention of Article VI, § 9 of the Tennessee Constitution.
Odom, 928 S.W.2d at 32. Though not explicitly stated in Odom, the clear implication
is that instruction s on n onsta tutory m itigating circum stanc es m ust be phras ed in
general catego ries similar to the statuto ry mitigating circums tances . In this case, the
trial court offered the more ge neralized instruction to the jury to conform to the
evidence and the law. See id. The statutory mitigating factor charged was not as
spec ific as Defendant’s special request. However, the instruction given by the trial
court generally encompassed the su bject con tained w ithin the sp ecial requ est.
There fore, we conclud e that the trial court’s refusal to ch arge the jury on the
nonsta tutory mitiga ting circum stance did not co nstitute erro r.
D. Request for Modified T.P.I. Instruction
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Defendant asserts that the trial co urt com mitted er ror when it refused to
charge Tennessee Pattern Jury Instruction 43.03 during the sentencing phase of
trial. That instruction addresses the situation where the defendant refuses to testify
during the guilt phase of trial. It states:
The defendant has not taken the stand to testify as a
witness but you shall place no sign ificance o n this fact.
The defendant is presumed innocent and the burden is on
the state to prove his gu ilt beyon d a rea sona ble doubt. He
is not req uired to take th e stan d in his own beha lf and h is
election not to do so cannot be considered for any
purpose against him, nor can any inference be drawn from
such fac t.
T.P.I. 43.03.
The jury in this case was g iven this instruc tion du ring the guilt phas e of trial.
Defe ndan t’s concern at the sentencing hearing was that the jury should be instructed
that the burden is upon the State to prove aggravating circumstances. In response
to his concern, the trial cou rt correctly advised Defendant that the pattern instruction
for sentencing for life imprisonment or life imprisonment without the possibility for
parole addressed this concern. That instruction included the following language:
The burden of proof is upon the state to prove any
statutory aggravating circu mstance or circumstances
beyond a reasonable doubt. A reasonable doubt is a
doubt based upon reason and common sense after careful
and impa rtial con sidera tion of a ll the evid ence in this case.
See T.P.I. 7.04(a).
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In light of the foregoing instruction, we find Defendant’s request to be
unwarranted. Defendant wanted the jury to know that the State had the burden of
proof as to the aggravating circumstances, and we find that the instruction given
accomplished that purpose. Any error in not charging T.P.I. 43.03 was harmless and
does not co nstitute reversible error.
X. Admissibility of Certain Testimony
Defendant argue s that th e trial co urt com mitted error b y perm itting ce rtain
testimony at the sentencing hearing. First, he argues that the testimony of Vale rie
Roscoe, the victim’s fiancee, was irrelevant and inadmissible under Tenn. R. Evid.
403. Ms. Roscoe testified conc erning her we dding plans with the victim and the fact
that she intended to convert to Catholicism. Defendant objected to Ms. R osco e’s
testimony and the trial court overruled it on the ground that her relationship with the
victim was in fact ma terial. Secondly, Defenda nt asserts that the trial cou rt abused
its discretio n by allowing the State to call Officer Peel as a rebuttal witness
concerning Defenda nt’s statemen ts regarding his p rior criminal activity. The S tate
offered the testim ony of Peel in order to demonstrate to the jury that Defendant
stated that he had p rior criminal ac tivity and to clarify or correct what the defense
had charac terized as a statem ent mere ly bein g attributed to him. T he trial court
found the officer’s testimony to be in rebuttal and not beyond the scope of
Defen dant’s pro of.
Defendant has not sho wn how the testimony of M s. Roscoe or Officer Peel
prejudiced him. Although we find the relevancy of parts of Ms. Roscoe’s testimony
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to be questionable, any error in admitting the testimony would be harmless. Tenn.
R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Therefore, we find no merit to this issue.
XI. Jury Instruction to “Continue Deliberations”
During deliberations following the sentencing hearing, the jury twice sought
guidance from the judge. In the first instance, the jury sent two questions to the
judge. First, the jury wanted to know “C an the 5 1 years s entenc e [for life
imprison ment] ever be changed by statute,” and se condly “W hat happe ns if the Jury
cannot come to a unanimo us decision? ” In response to those questions, the judge
simp ly replied that he could not answer those questions. A few minutes later, the
jury sent a statement to the judge informing him that they could all agree on the
aggravating circumstances, but that they could not reach a decision as to the
sentence to impose. The jud ge sen t a written response instructing them to “continue
deliberatio ns per e arlier instruc tions.”
Defendant argue s that th e trial co urt failed to follow the gu ideline s set fo rth in
Kersey v. State, 525 S.W .2d 139 (Tenn . 1975) a nd in Se ction 5.4 of the ABA
Standards Relating to Trial by Jury by directing the jury to “co ntinue de liberations .”
Defendant argues that the statement essentially coerced the jury into returning the
verdict. Specifically, the Kersey court formulated the following instructions a judge
should issue when face d with a dead locked jury:
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The verdict must represent the considered judgment of
each juror. In orde r to retu rn a ver dict, it is necessary that
each juror agre e thereto . Your verd ict must be
unanim ous.
It is your duty, as jurors, to consult with one anoth er and
to deliberate with a view to reaching an agreement, if you
can do so withou t violence to individual jud gmen t.
Each of you must decide the case for yourself, but do so
only after an impartial consideration of the evide nce with
your fellow jurors. In the course of your deliberations, do
not hesitate to reexamine your own view and change your
opinion if convinced it is erroneous. But do not surrender
your honest conviction as to the weight or effect of
evidence solely because of the opinion of your fellow
jurors, or for th e mere purpos e of return ing a verd ict.
Kersey, 525 S.W.2d at 145. T he co urt also noted that the charg e ma y be giv en on ly
in the form specified in that opinion, and then, only when it was given as part of the
main charge. “Strict adherence is expected and va riations will not be pe rmissible .”
Id. at 145.
As to the first set of questions sent to the judge by the jury, we find that the
questions alone are insu fficient to show that the jury wa s deadlock ed. The jury
simp ly asked if the verdict h ad to b e una nimo us; it did not actually say tha t they were
deadlo cked. T herefore , we find tha t the dictate s of Kersey do not ap ply.
As to the judge’s response to the second question sent to him, “continue
deliberations per earlier instructions,” we find that the comment was not directe d to
jurors in the minority, nor did it urge such jurors to reevaluate or to cede their views
to those of th e majo rity. Similarly, the court did not impose a deadline on the jury for
its deliberation. We find tha t the ca se is sim ilar to State v. Baxter, 938 S.W.2d 697,
703 (Tenn . Crim. A pp. 199 6), perm. to appeal denied (Tenn. 1997), in which the
judge told the jury, “I’m g oing to ha ve you co ntinue to d eliberate.” See also State v.
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Dick, 872 S.W .2d 938 , 946 (T enn. C rim. App . 1993). As in Baxter, we do not view
the trial court’s comments as requirin g a reve rsal of th e con viction. A n error in the
charge to the jury is not grounds for reversal unless it affirmatively appears that the
error has affected the results of the trial. Tenn. R. App. P. 36(b); Vanderbilt
Univers ity v. Steely , 566 S.W .2d 853, 854 (Tenn. 197 8). The rem arks by the cou rt
were not an “und ue intrusio n . . . into this exclu sive provin ce of the ju ry . . . .”
Kersey, 525 S.W .2d at 144 ; see also State v. Goad, 707 S.W.2d 846, 851 (Tenn.
1986); Bass v. Bark sdale , 671 S.W.2d 476 (Tenn. App. 1984) (adopting Kersey and
noting that “[n]othing should be done or said to a juror which can in any manner be
taken by that juror to indicate that he or she should abandon an honestly h eld
conviction in order to reach a verdict . . . .”). Therefore , Defend ant is not e ntitled to
relief on this ground.
XII. Viewing of Video Taped Confession in Jury Room
In this issue, Defendant contends that the trial cour t abuse d its discretion by
permitting the jury to view the video tape of his confession during the deliberations
following the sentencing phase of the trial. Rule 30.1 provides as follows:
Jury Exam ination of E xhibits -- Upon retiring to consider
its verdict, the jury shall take to the jury room all exhibits
and writings wh ich have been re ceived in e vidence , except
depositions, for their examination during deliberations,
unless the cour t, for good cause, determines that an
exhibit should not be taken to the jury room.
Tenn. R. Crim. P. 30.1 (emphasis added). First, it is well established that a jury in
a bifurcated trial may rely upon the evidence presented during the guilt phase of trial.
See Tenn . Code Ann. § 3 9-13-20 4(e); State v. Teague, 897 S.W.2d 248, 250-51
(Tenn . 1995). T herefore , contrary to Defendant’s assertion, it is irrelevant that the
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State did not introduce the videotape as evidence during the sentencing hearing.
Defendant also argues that the tape should have been excluded because it was
made in violation of his federal and state constitutional rights as discussed
previo usly in this opinio n. Tenn. Code Ann. § 39-13-204(c) states that “introduction
of any evidence secured in violation of the constitution of the United States or the
constitution of Tenne ssee” is not auth orized. Howe ver, as we determined in Issues
I-IV, introduction of the tape was not a violation of any of Defendant’s constitutional
rights. We can find no “good cause” reas on as to why th e videotape sh ould not have
been ta ken to the jury room . There fore, this issu e is withou t merit.
Conclusion
After a careful review of the entire record, including the transcripts, exhibits,
video ca ssettes, a nd briefs, w e respe ctfully affirm the judgm ent of the tria l court.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
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JOSEPH M. TIPTON, Judge
___________________________________
JOE G. RILEY, Judge
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