State v. Keith Slater ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
January 27, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9709-CC-00435
Appellee, )
) GILES COUNTY
VS. )
) HON. JIM T. HAMILTON,
KEITH SLATER, ) JUDGE
)
Appellant. ) (Premeditated First Degree
) Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
HERSHELL D. KOGER PAUL G. SUMMERS
131 North 1st St. Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478 LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
T. MICHAEL BOTTOMS
District Attorney General
RICHARD H. DUNAVANT
ROBERT C. SANDERS
Asst. District Attorneys General
P.O. Box 304
Pulaski, TN 38478-0304
OPINION FILED:
AFFIRMED IN PART; VACATED; AND REMANDED IN PART
JOE G. RILEY,
JUDGE
OPINION
The defendant was convicted of premeditated first degree murder by a
Giles County jury and received a sentence of life imprisonment. In this appeal as
of right, the defendant challenges: (1) the sufficiency of the evidence; (2) the trial
court's refusal to suppress his taped phone conversation with his roommate; and
(3) its refusal to suppress his statement to the police. Upon our review of the
record, we AFFIRM IN PART, but REMAND for another hearing on the motion to
suppress defendant’s statement to the police.
I. FACTS
The victim, Melvin Franklin, was shot twice at his trailer home in the early
morning hours of August 31, 1996. One bullet struck him in the back and the
other in his right buttock. Kevin Folston, a neighbor, heard the gunshots and
saw Kendrick Young's car leaving the scene with its lights off. He did not see
defendant in the car; however, shortly thereafter he saw a man come to the
trailer door and then leave. Mattie Louise Gordon, the victim's niece, found
Franklin's body several hours later.
The police initially arrested Young for the homicide. In his statement to
Investigator John Dickey, Young implicated his roommate, the defendant, as the
shooter. Dickey had Young make a taped phone call to defendant’s workplace.
During the conversation, defendant acknowledged shooting the victim.1
Based upon Young’s statement and the recorded phone call, Dickey
obtained an arrest warrant for defendant which was executed. Once at the
station, defendant was booked, taken into Dickey’s office and given his Miranda
warnings. Defendant gave a statement outlining his involvement in the shooting,
including an admission that he was the triggerman.
1
A transcript of the pho ne call was prov ided to the jury, but wa s not included in the re cord.
The record does contain the original recording. The tape reflects defendant and Young discussing the
incident. Defendant answers in the affirmative Young's question that if he (Young) were convicted,
would he (the defendant) come forward and say that he (the defendant) shot the victim. It further
portrays Young asking defendant if anyone else knew that he (the defendant) shot the victim, to which
the defendant responds in the negative.
2
A. Testimony of Kendrick Young
Young testified at trial that he and defendant drove in Young's car to
Franklin’s home. They went to retrieve money that Young thought Franklin had
taken from his cousin, Clarence Jacobs, earlier that evening. Young entered the
trailer and found Franklin at the kitchen table “[s]moking crack.” He asked about
Jacob’s money and Franklin denied taking it. Young said he then took Franklin’s
drugs and pipe and walked toward the back of the trailer.
According to Young’s testimony, at this point defendant asked him, “[w]hat
you want to do, man?” to which Young replied, “I don't know.” He was looking
out a window when defendant said, “[b]ye, Melvin.” Young then heard a
gunshot. When Young turned around, he saw the defendant “right there” and
ran. He heard about four shots but did not see a gun.
Young testified that he ran to his car, pulled out his own gun, started the
engine, the defendant got in, and they drove off. When Young asked the
defendant why he shot Franklin, defendant responded, “it's the third time
somebody stolen from us, and (sic) just can't have it.” Only then did Young see
defendant with the .38 caliber gun that defendant threw away soon thereafter.
Young denied shooting the victim or seeing the victim pull a gun.
B. Testimony of Bobby Gerald Wright and Joelean Magraff
Bobby Gerald Wright testified that he was in the trailer bedroom with his
girlfriend, Joelean Magraff, when Franklin was shot. He testified that he heard
Young's voice, but not the defendant's. He denied hearing anyone say, “[b]ye,
Melvin.”
Magraff testified that she, too, heard a voice that sounded like Young’s.
Although she identified the voice as Young’s in her statement to Investigator
Dickey near the time of the incident, by trial she was unsure. However, she was
certain she did not hear or see anyone else in the trailer; nor did she hear
anyone say, “[b]ye, Melvin.”
3
C. Testimony of Law Enforcement
Investigator Dickey testified that he recovered a .38 caliber gun using
information provided by Young. Robert E. McFadden, a Tennessee Bureau of
Investigation (TBI) forensic scientist specializing in latent fingerprints, testified
that he found no fingerprints on this weapon. Donald Carmen, a TBI forensic
scientist specializing in firearms identification, testified that the two bullets
recovered from the victim's body exhibited the same “class characteristics” as
the test bullets fired from the .38. However, he could not determine whether
there was a match of “individual characteristics” because the bullets recovered
from the victim's body were damaged in a manner consistent with their having
struck bone.
D. Testimony of Defendant
Defendant also testified at trial and acknowledged ownership of the gun
found by Investigator Dickey. He stated that he bought it from Young about two
years earlier. Defendant testified that Young went to the victim's trailer alone,
returned a while later, and told defendant that he had shot Melvin Franklin.
Defendant alleged that they worked on a story together in which he would admit
to shooting the victim. The defendant claimed that he “was trying to help out a
friend” and that, because he had no prior record, he thought “it wouldn’t be as
bad on me.” For this reason, defendant claims he stuck to the story although
Young did not.
Defendant also acknowledged the contents of the taped phone
conversation with Young. But, he averred that when Young asked him if anyone
else knew that he (the defendant) shot Franklin besides him (Young), that he
thought Young was asking if anyone else knew that Young had shot the victim.
He admitted saying, “be sure to tell [the police]; be sure to remember that we
went to get my gun and Clarence's 40 or $50.00, and he pulled that damn gun
out on me and I took it away from him.” The defendant denied shooting Melvin
Franklin.
4
II. SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence is insufficient to support his
conviction. When a defendant challenges the sufficiency of the convicting
evidence, we must review the evidence in the light most favorable to the
prosecution in determining whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979).
We do not reweigh or re-evaluate the evidence and are required to afford the
State the strongest legitimate view of the proof contained in the record as well as
all reasonable and legitimate inferences which may be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). It is the defendant's burden to
illustrate to this Court why the evidence is insufficient to support the verdict
returned by the trier of fact in his or her case. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are
resolved by the trier of fact, not this Court. State v. Cabbage, 571 S.W.2d at
835. A guilty verdict rendered by the jury and approved by the trial judge
accredits the testimony of the witnesses for the State, and a presumption of guilt
replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973).
In August 1996, the time at which the instant offense was committed, first
degree premeditated murder was defined as a “premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1996). A
premeditated killing is one “done after the exercise of reflection and judgment”
and where “the intent to kill [was] formed prior to the act itself.” Tenn. Code Ann.
§ 39-13-202(d). Premeditation does not require that the purpose to kill pre-exist
in the defendant's mind for any definite period of time. Id. However, the
defendant's state of mind at the time he decided to kill “must be carefully
considered in order to determine whether [he] was sufficiently free from
5
excitement and passion as to be capable of premeditation.” Id.
In this case, the proof established that the victim was shot twice from
behind. Young testified that he and the defendant went to the victim's home to
recover some money and that, while they were there, the defendant shot the
victim, firing about four shots. Young further testified that, when asked why
defendant shot Franklin, defendant responded it was because the victim had
stolen from them.
Young also testified that he saw the defendant throw away the murder
weapon which the police later found with his assistance. The bullets recovered
from the victim's body had the same “class characteristics” as the recovered
weapon, and the defendant admitted the gun was his.
Finally, defendant admitted to shooting the victim in the taped phone
conversation with Young and in his statement to Investigator Dickey. Under the
standards for determining the sufficiency of the evidence on appeal, this proof is
sufficient to support the defendant's conviction for premeditated first degree
murder.
Therefore, this issue has no merit.
III. TAPED PHONE CONVERSATION
The defendant also contends that the trial court should have suppressed
his taped phone conversation with Young. The conversation took place after
Investigator Dickey coached Young regarding what questions to ask defendant.
Dickey was with Young when the call was made and simultaneously listened to
and recorded it.
Defendant argues that this activity violated his Sixth Amendment right to
counsel in that it was improper for Young, “acting as a tool of the police
department, to interrogate [him] under the guise of a phone call between
friends.” We disagree.
The Supreme Court of Tennessee has held that the right to counsel does
not attach until adversary judicial proceedings have been initiated. State v.
6
Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980); see also State v. Meeks, 876
S.W.2d 121, 127 (Tenn. Crim. App. 1993). “Initiation” occurs upon the issuance
of a formal charge, i.e., an arrest warrant, a preliminary hearing or the issuance
of an indictment or presentment. State v. Mitchell, 593 S.W.2d at 286.
In this case, the phone call was made during the investigation of the
homicide. At that point, the only evidence of defendant's involvement was a
claim by their primary suspect who was already charged with the crime. The
police were entitled to investigate Young's allegations before placing the
defendant under arrest. “‘There is no constitutional right to be arrested.’”
Clariday v. State, 552 S.W.2d 759, 769 (Tenn. Crim. App. 1976) (quoting Hoffa
v. United States, 385 U.S. 293, 310 (1966)). Therefore, defendant's right to
counsel was not violated by Young's phone call to him, or by the recording
thereof. The trial court did not err in refusing to suppress this evidence.
This issue is without merit.
IV. DEFENDANT’S CONFESSION
Finally, defendant avers that the trial court erred by refusing to suppress
his statement to Investigator Dickey following his arrest. In this statement, the
defendant confessed to shooting the victim.
A. Pre-Trial Motion
At the pre-trial hearing on the motion to suppress, Investigator Dickey
testified that: (1) while being processed, defendant asked to speak with his
mother, but there was no mention of contacting an attorney; (2) defendant never
asked for attorney Bob Massey or any other attorney; (3) after being given his
Miranda warnings, defendant agreed to give a statement; and (4) defendant
never indicated a desire to stop the interview.
Defendant testified at the hearing that: (1) during the booking process, he
repeatedly asked to call his mother so she could contact an attorney for him; (2)
he specifically mentioned the name of attorney Bob Massey; (3) he went into
7
Dickey's office where he was advised of his Miranda rights; and (4) he "told
[Dickey] plenty of times I wanted to talk to my lawyer, but he was [sic] always
say, 'in a while. In a while. Not right now.'"
Martha Slater, defendant’s mother, testified that when she was finally
allowed to see defendant, she asked him why he did not ask to see her.
Defendant’s response was that he had asked for her and attorney Bob Massey,
but that the police refused both requests.
The trial court denied the motion to suppress but specifically declined to
make any findings of fact regarding this issue as evidenced by the following
exchange with defense counsel:
THE COURT: Well, I’m interrupting you but I don’t
think it makes any difference whether he asked for an attorney or
not in the hallway. The officer did what I taught him to do, had I
been in an in-service training class. I would have said, take the
defendant in there and read him his Miranda rights before you do
another thing, after you get his fingerprints and his name and age
and address, and whatever.
MR. KOGER: Right. But I think, Your Honor, with all
due respect, that the state of the law in Tennessee is -- it’s one of
these what I call magic words. When the defendant says, I want a
lawyer --
THE COURT: No, sir. You’re wrong, if you think that’s a state
law.
MR. KOGER: -- then everything stops until one of two
or three things happen. Either the defendant gets a lawyer or the
defendant initiates conversation.
THE COURT: That’s not true. The state of the law in
Tennessee is that if Mr. Slater -- and I’m going to give him the
benefit of the doubt. If he asked him, said, I’d like to talk to Bobby
Massey [an attorney]. He said, okay, just wait a minute. Wait until
we get through processing you.
He got through processing him. He took him in the office.
He set him down. He gave him his Miranda rights. And he waived
his Miranda rights. And I don’t know what he told Mr. Dickey, after
he did that, but where is the beef?
MR. KOGER: The beef is that when you say, I want to
talk to Bob Massey [an attorney], that you have invoked your Sixth
Amendment right to counsel, and the police can’t touch you. They
can’t talk to you about anything.
THE COURT: I’m going to overrule that motion. He
gave him the Miranda rights. He gave him his Miranda rights at the
proper time. I think he followed proper procedure.
There is a question in my mind whether he ever asked for an
8
attorney. I don’t know. He may have or he may not have. I don’t
know who to believe.
MR. KOGER: Judge, for the purpose of the record,
Your Honor, when you say you are giving us the benefit of the
doubt, does that mean that you are making a finding of fact that he
did, in fact, ask for an attorney.
THE COURT: No, sir. I’m making a finding of fact that
one said yea and one said nay, and I don’t know which one to
believe. I don’t think it makes any difference if he did.
We respectfully disagree with the trial court’s conclusion that it was irrelevant
whether or not the defendant requested legal counsel prior to being Mirandized.
B. Right To Counsel
There is a Sixth Amendment right to counsel that attaches after initiation
of adversarial proceedings. Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct.
1404, 1407, 89 L. Ed. 2d 631, 638 (1986). In Tennessee, issuance of an arrest
warrant triggers such “initiation.” State v. Huddleston, 924 S.W.2d 666, 669
(Tenn. 1996); State v. Mitchell, 593 S.W.2d at 286. Thus, if a defendant
requests counsel during the booking process and after his arrest pursuant to an
arrest warrant, police-initiated interrogation is forbidden. Michigan v. Jackson,
475 U.S. at 630, 632. Any subsequent statement made by a defendant as a
result of such police-initiated interrogation must be suppressed regardless of
whether the defendant executed a Miranda waiver. Id. at 636.
There is also a Fifth Amendment right to counsel that attaches during
custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct.
1880, 68 L. Ed. 2d 378 (1981). Again, if a defendant requests counsel while
being given his Miranda warnings or during custodial interrogation, the
interrogation must cease. Id. at 482; State v. Huddleston, 924 S.W.2d at 669.
Any subsequent statement made by a defendant as a result of police-initiated
interrogation must be suppressed. Edwards v. Arizona, 451 U.S. at 484-85.2
2
An equivocal or ambiguous request for counsel does not trigger the Edwards requirement
under the Fifth Am endment. Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362(1994); State v. Huddleston, 924 S.W.2d 666, 669-70 (Tenn. 1996).
9
C. Necessity for Remand
Defendant’s testimony directly contradicted the testimony of Investigator
Dickey. Defendant testified he repeatedly asked for counsel. Dickey testified
that defendant said “[n]othing directed toward an attorney.” A determination of
facts is necessary before this Court can address this issue. The trial court
declined to make findings. As an appellate court, we are unable to make
findings of fact. Further, under the circumstances, it would not be appropriate to
simply remand for the entry of findings based upon the previous hearing. Thus,
this case must be remanded to the trial court for another hearing on the motion
to suppress.3
V. CONCLUSION
Based upon the foregoing, the judgment of conviction must be VACATED
and the case REMANDED for another hearing on the motion to suppress.
If the trial court determines upon remand that defendant did not request
counsel, it shall enter an order accordingly and reinstate the judgment of
conviction. Defendant may then appeal that issue to this Court. If the trial court
determines that defendant did request counsel, it should grant a new trial and
suppress defendant’s statement.4
The judgment of the trial court is affirmed as to the other issues raised in
this appeal.
________________________________
JOE G. RILEY, JUDGE
3
We have ex amined the rec ord in an effort to determ ine whether the ad mission of defen dant’s
confession was harmless error should it be determined to be error at all. We are unable to conclude
that the jury would necessarily have reached the same result without the defendant’s confession.
4
A similar procedure was followed in State v. William Chouinard, C.C.A. No. 03C01-9311-CR-
00357, McM inn County (T enn. Crim. Ap p. filed February 9, 19 95, at Knoxville); rehearing denied
August 8, 1995.
10
CONCUR:
(Not Participating)___________________
PAUL G. SUMMERS, JUDGE
_________________________________
L. T. LAFFERTY, SENIOR JUDGE
11