State v. Callahan ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMBER SESSION, 1996 April 24, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9507-CC-00203
)
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. R. JERRY BECK
NATHAN ALLEN CALLAHAN,) JUDGE
)
Appellant. ) (First Degree Murder)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
STEPHEN M. W ALLACE CHARLES W. BURSON
District Public Defender Attorney General and Reporter
DARIAN B. TAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
H. GREELEY W ELLS
District Attorney General
NANCY S. HARR
Assistant District Attorney General
Blountville, TN 37617
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure. The Defendant, Nathan Allen Callahan, was convicted by
a Sullivan County jury of one count of first-degree murder and one count of
second-degree m urder, respectively, for the shooting deaths of his mother and
younger sister. The jury set punishment for the first-degree murder conviction at
life imprisonment and fined the Defendant $47,000.00 for the count of second-
degree murder. The trial court ordered twenty-two years imprisonment on the
conviction for second-degree murder to be served concurrently with the life
sentence. The Defendant appeals his convictions and raises the following
issues: (1) That the evidence is insufficient to support the conviction for murder
in the first degree; (2) that the trial court erred in denying the Defendant’s special
jury request; (3) that the trial court erred in failing to suppress his confession; and
(4) that the trial court erred by not suspending the fine imposed by the jury. After
careful review of the issues and the record, we affirm the judgment of the trial
court.
On March 30, 1994, Gale Callahan and her thirteen-year-old daughter,
Holly, were shot to death in the garage of their home. At the time of the murders,
the Defendant had just turned fifteen. He lived with his parents, Gale and Glen
Callahan, and his younger sister, Holly, in a suburban neighborhood in the Indian
Hills community of Sullivan County. At around age fourteen, the Defendant’s
behavior had changed; he had new friends, his grades began to drop, he stopped
doing homework, and he started skipping classes. In the fall of 1993, after
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becoming suspicious that his son might be using drugs, Glen Callahan installed
a recorder to tape his son’s telephone calls. On New Year’s Eve, 1993, Mr.
Callahan recorded the Defendant talking with a friend about using marijuana. He
also talked about sneaking out of the house and driving the new Trans-Am
Pontiac his grandfather had bought for him. Mr. Callahan confronted the
Defendant, who denied that this was true and refused to reveal his drug source.
Mr. Callahan became enraged and smashed the Defendant’s electric guitar,
another gift from his grandfather.
Mr. Callahan stayed that night with the Defendant who lived in the
downstairs area of the house, fearful of how he might react. The next morning,
the Defendant went into the bathroom to take a shower, but actually crawled out
the window. After discovering he was missing, his parents searched for him and
later found him lying under the basement steps. Mr. Callahan sold the
Defendant’s car, took him for random drug tests, and became very restrictive of
his activities and his access to money. He had an outpatient mental health
evaluation in January which revealed no significant mental disturbance, but did
indicate substance abuse. The recommended treatment was outpatient
counseling, with more extensive treatment possible if the drug screens continued
to appear positive. Subsequent drug screens continued to test positive for
marijuana and the Defendant’s parents monitored his activities at school. They
bought a new black Chevrolet Camaro and promised the Defendant a learner’s
permit to drive if two drugs screens came back negative. The car keys were kept
locked up.
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The situation remained somewhat the same during the month before the
murders. Mr. Callahan noted at trial that the Defendant rarely expressed emotion
and that he had never seen him cry. The Defendant never expressed anger,
even after his guitar was smashed, his car was sold, and he was restricted.
However, two days before the killings, the Defendant asked his sister, in the
presence of her friend, “what would you do if I killed my Mom and Dad?” His
sister Holly replied: “Nathan, shut up. That’s not nice to say. You shouldn’t do
that, I would hate you forever if you did.”
On the day of the murders, the Defendant had lengthy telephone
conversations with two of his friends. He initiated a discussion about whether he
should kill his parents. Unbeknownst to the Defendant, these telephone calls
were tape-recorded. They revealed the animosity he harbored toward his family
and the planning and execution of the murders. The Defendant devised the plan
to kill his mother and sister after they returned home from a shopping trip. His
father was away on a business trip and was expected to be back later that
evening. The Defendant retrieved a 20 gauge shotgun, a present from his
grandfather that was stored under his parents bed. He located a box of
ammunition, loaded the chamber with four shells and placed the gun outside
behind a fence near the garage. During this time, the Defendant remained in
phone contact with James Saylor, who participated actively and made
suggestions.
W hen the Defendant saw that his mother and sister had returned, he set
the telephone down, still off the hook, and went outside. He picked up the
shotgun and hid behind his Camaro, that was parked in the driveway. His mother
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and sister opened the garage door and walked inside toward a door leading into
the house. As they neared the door, the Defendant walked into the garage. His
sister, Holly, turned around and he shot her in the lower front. He then shot his
mother in the shoulder. He walked within a few feet of his sister and shot her in
the head, then reloaded the gun and shot his mother in the buttocks, in her back,
and in her head. The brains of both victims were blown from their heads.
The Defendant left the garage and picked up the telephone, telling James
Saylor that he had killed his mother and sister. He took money and his m other’s
cellular phone and put the shotgun and a box of shells in the Camaro. Saylor
became concerned and told his m other, Terrell Saylor, what the Defendant had
done. Terrell Saylor called the Defendant, then allowed her son James to talk
with him while still listening on the line. The Defendant again stated that he had
killed his mother and sister. Fearful that he would come to their home, Terrell
Saylor called 911 and reported the incident. The Defendant left the house,
driving the black Camaro.
Mem bers of the Sullivan County Sheriff’s Department were dispatched to
the Callahan residence. Noticing that the garage door was open, the officers
went inside and discovered the bodies of Gale and Holly Callahan. The officers
also did a protective sweep of the home, noticing a number of bloody footprints
both in the garage and in some areas of the house. Lieutenant Reece Christian
arrived on the scene to investigate. A number of shell casings were observed in
the garage. Gale Callahan’s purse was lying in a laundry basket, where the
Defendant had left it after taking some cash.
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Meanwhile, the Defendant drove to the Fort Henry Mall to look for Jonathan
Mann, another friend. He approached Andrew Carter, a school classmate, in a
video arcade and announced that he had just killed his mother and sister. The
Defendant pulled the car keys out of his pocket and asked “you believe me now?”
The Defendant also stated that he needed to find somewhere to hide. He left the
mall and went to a convenience store, the Greenwood Market. While he was
using the pay phone, someone at the market called 911 and reported his
presence. He then left and drove to the B&C Market, another convenience store.
Charles Addison, a local resident, saw the Defendant at the Greenwood Market
and followed him to the B&C. He observed the Defendant on the pay phone. Mr.
Addison then reported the Defendant’s whereabouts. Soon thereafter, Lieutenant
Christian and two other officers arrested him at the B&C Market. The officers
saw a shotgun and a box of shells through the hatchback window. The
Defendant was transported to the Sheriff’s Department.
There, Glen Callahan, who had returned from his business trip, gave
permission to question the Defendant. After being advised of his rights, the
Defendant gave a lengthy confession. Lieutenant Christian wrote out the
statement as the Defendant made the oral confession. The Defendant reviewed
and signed the document. A urine drug screen was conducted and the results
were negative. The Defendant was housed in the Upper East Tennessee
Regional Juvenile Detention Center until he was transferred to the Lakeshore
Mental Institute for an evaluation. He was determined to be competent to stand
trial. He was returned to the Detention Center. On July 7, 1994, the Defendant
was transferred to the Sullivan County Criminal Court for prosecution as an adult.
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The Defendant was indicted on two counts of first-degree murder for the
shotgun deaths of Gale and Holly Callahan. He was transferred to the Sullivan
County Jail, a secure facility, and was housed separately from the adult
population. The Defendant was tried on March 13-17, 1995, and was convicted
on a jury verdict of one count of first-degree murder and one count of second-
degree murder. The jury imposed a sentence of life imprisonment for the first-
degree murder and a $47,000.00 fine for the second-degree m urder. A
sentencing hearing was held on March 18, 1995, after which the trial judge
imposed a sentence of twenty-two years for the charge of second-degree murder
to be served concurrently with the life sentence. The Defendant contests his
convictions and the fine set by the jury.
I. Sufficiency of the Evidence
In his first issue, the Defendant argues that the evidence was insufficient
to support the verdict of murder in the first degree for the death of Gale Callahan.
He contends that the State failed to prove the element of deliberation because
he was in an emotional state when the killings occurred.
W hen an accused challenges the sufficiency of the convicting evidence,
the standard is whether, after reviewing the evidence in the light most favorable
to the prosecution, 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 (1979). Questions concerning the credibility of the witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by
the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754
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S.W .2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
A jury verdict approved by the trial judge accredits the State’s witnesses
and resolves all conflicts in favor of the State. State v. Grace, 493 S.W .2d 474,
476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate
view of the evidence and all inferences therefrom . Cabbage, 571 S.W .2d at 835.
Because a verdict of guilt removes the presumption of innocence and replaces
it with a presum ption 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. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493
S.W.2d at 476.
The Defendant claims that the evidence was insufficient to prove
deliberation as required for first-degree murder. The trial judge instructed the
jury under Tennessee Code Annotated section 39-13-202(a)(1), which states, "(a)
First degree murder is: (1) An intentional, premeditated and deliberate killing of
another...." Tenn. Code Ann. § 39-13-202(a)(1) (1991). A " '[p]remeditated act'
means one done after the exercise of reflection and judgment. Premeditation
may include instances of homicide committed by poison or by lying in wait."
Tenn.Code Ann. § 39-13-201(b)(2) (1991). A "’[d]eliberate act' means one
performed with a cool purpose." Tenn. Code Ann. § 39-13-201(b)(1) (1991).
The Tennessee Supreme Court has addressed the issues of premeditation
and deliberation in State v. Brown, 836 S.W .2d 530 (Tenn. 1992), and in State
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v. W est, 844 S.W .2d 144 (Tenn.1992). In Brown, the court emphasized that
deliberation and premeditation are two separate elements of first-degree murder.
Deliberation, the court said, "requires some period of reflection, during which the
mind is 'free from the influence of excitement, or passion.' " Brown, 836 S.W .2d
at 540. Thus, deliberation requires “the formation of a cool, dispassionate intent
to kill.” W est, 844 S.W .2d at 147. Premeditation does not require a specific
amount of time to pass between the formation of the idea and the act. Brown, 836
S.W.2d at 540. However, the intent necessary to commit first-degree murder
may not be formed in an instant because of the additional requirement of
deliberation. Id. at 543. The court also noted that repeated blows or shots,
alone, were not enough to prove first-degree murder. Id.; see also State v.
Darnell, 905 S.W.2d 953, 961-62 (Tenn. Crim. App. 1995).
The Defendant contends that the act of shooting his mother was not free
from passion such that the deliberation was formed to support his conviction.
“Passion” has been defined as “any of the human em otions known as anger,
rage, sudden resentment or terror which renders the mind incapable of cool
reflection.” State v. Tune, 872 S.W .2d 922, 926 (Tenn. Crim. App. 1993) (quoting
State v. Bullington, 532 S.W.2d 556, 560 (Tenn. 1976)). Yet, the presence of
agitation or anger does not necessarily preclude a finding that the act was
performed with the necessary deliberation. See State v. Gentry, 881 S.W.2d 1,
5 (Tenn. Crim. App. 1993).
The Defendant points to the tape recording of his telephone conversations
just prior to the murders. He asserts that his demeanor demonstrates that he
was not free from the passion of the moment. The tape recording was played for
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the jury at trial. The Defendant’s father and grandfather testified that the tape
recorded conversation did not sound like his normal voice and that he sounded
agitated. The Defendant highlights excerpts of the tape in which he forms the
intent to kill. However, he claims that it was done in an excited state fueled by
his friend, James Saylor’s encouragement. The Defendant does make some
statements such as “Ah shit, I’m going to be so goddamn nervous trying to drive
(after he murders the victims)” and that it would be “damn fun” or that “[s]on of a
bitch, I’m going to try it. You want me to call you back?” At a later point in the
conversation, they discuss Saylor coming over to the Defendant’s house after he
does the killings, yet Saylor conditions it by saying “I thought you were going to
do that first” and “if you’ll do it, I’ll come over.” The Defendant voices some
agitation by saying “I can’t believe what the fuck we’re doing.” He asserts that the
anxiety he was experiencing just prior to the murders had not subsided such that
he was free from passion.
Yet, there is evidence that the Defendant coolly calculated a plan, that he
implemented the plan, and that he considered the consequences before he
acted. In his confession, he admitted to thinking about killing his parents two
weeks before the murders and he talked to others about killing his parents two
days before the murders. In his confession, he states:
I told my sister that I was thinking about killing our parents to see what
Holly thought about it. Holly did not believe me and told me not to do it.
She did not think I was serious but I was definitely serious about killing my
parents. . . . [I] called Jonathan at his home and talked with him. We
talked about killing my sister and my mother and he did not believe me.
I told him I did not like the way my sister and my mother were treating me.
. . . I have been thinking about killing my father, mother and sister for about
2 weeks. Because they would never let me go out and do anything with
my friends.
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From the recorded telephone conversations, the Defendant considered
that if he killed his family “we’re going to need some place to stay.” Also, he plans
the event: “They just went out to eat. W hy don’t you come over. I’m going to
shoot them as soon as they walk in the door. Come up behind them, and shoot
them in the garage so I don’t get blood all over the house.” “You know where my
car is at, out back there, I’ve got the gun laying down there.” When the
Defendant hears that two other boys are at Saylor’s house he asks: “Does he
know what I’m going to do? Hey, you better not tell them, just in case.” He states
that “if I get caught. I’ll go to jail. . . . If I get pulled over, I’m gonna have to shoot
the goddamn cop. I can’t outrun his fuckin’ ass ‘cause they’ll have roadblocks.
. . . I could get myself in a shit load of trouble right now. How many years do you
think I’d get? Life?” “We’re going to pawn all my Mom’s jewelry out of state.”
Finally, when Saylor suggests giving the Defendant’s mother Valium in her food,
the Defendant responds:
Defendant: No, I’m shooting her ass, bitch.
Saylor: Poison her. That would be the best way.
Defendant: I have to kill her, bitch, what if she wakes up, what the
fuck am I gonna say?
Saylor: She ain’t gonna wake up if you poison her right.
Defendant: I want to leave tonight, you sorry bitch. I’m gonna shoot
her, shut the fuck up, I’m shooting her.
Dr. Nancy Lanthorn, a clinical psychologist, testified for the Defendant.
She had evaluated him and listened to the audio tape of the telephone
conversations. She concluded that the Defendant was socially and emotionally
immature. She related that his cognitive developm ent had not reached a point
where he could effectively evaluate and assess the consequences of his actions
to support a finding that he deliberated about the killings. Essentially, she stated
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that “he was not reflecting. He was not planning realistically at that time” (before
the killings).
The State presented Dr. Kevin Blanton in rebuttal, who evaluated the
Defendant at Lakeshore Mental Health Institute and had listened to the audio
tape. He concluded that the Defendant had enough maturity in his ego
development to empathize with others, or to consider future actions, or to take
responsibility for behavior.” He opined that the Defendant had weighed matters,
planned the killings and reflected upon the consequences such that he was able
to deliberate prior to the act. Although admitting that the Defendant sounded
anxious and nervous or nervous and elated, he asserted that the Defendant’s
speech did not suggest that he was consumed by emotion. Dr. Kris Houser, a
psychiatrist, also testified that the Defendant appeared to have considered the
“wisdom of his decision to kill” and that he considered the possible negative
consequences. Dr. Houser stated that the Defendant was not anxious and
nervous such that his judgment was clouded.
After a careful evaluation of the record, we conclude that the evidence was
sufficient to support a conviction for first-degree murder for the death of Gale
Callahan. It appears that the jury could have found beyond a reasonable doubt
that the Defendant possessed the ability to deliberate about his plan to murder
his mother and that he weighed the consequences of his actions. Although he
may have been anxious or elated about perpetrating this crime, this does not
necessarily mean that his emotions clouded his ability to deliberate. A “cool
purpose” is not synonymous with a complete absence of emotion. It merely
requires that the act be done without passion or provocation and free from the
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influence of excitement. See State v. Farmer, 927 S.W.2d 582, 589 (Tenn. Crim.
App. 1996). Here, in a lengthy confession, the Defendant admitted to thinking
about killing his parents two weeks before the murders. He talked about
murdering his parents two days before the killings. He talked with a friend on
the telephone while he planned and implemented the murders. He shot his
mother and sister from behind, without warning and without provocation in such
a manner as to insure their deaths.
There is no merit to this issue.
II.
In his second issue, the Defendant contends that the trial court erred by
denying his special request for a jury instruction. At trial, the Defendant
requested that the trial judge charge the jury the following from State v. Brown,
836 S.W .2d 530 (Tenn. 1992).
The fact that repeated shots were inflicted upon the victim is not
sufficient, by itself, to establish first-degree m urder. Repeated shots
can be delivered with no design or reflection. Only if such shots are
inflicted as the result of premeditation or deliberation can they be
said to prove first-degree murder.
Id. at 541. The trial court denied the request on the ground that the instruction
would amount to an improper comment on the evidence because it suggests that
premeditation or deliberation could be inferred from repeated shots. W ithout the
instruction, the jury would decide whether repeated shots would support a finding
of first-degree murder.
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The Defendant claims, however, that the State emphasized the fact that
repeated shots were fired through testimony by the medical examiner regarding
the wounds on the victims and the number of shotgun shells found at the scene.
He argues that the omission of the special jury instruction deprived him of having
every issue of fact submitted to the jury with proper instructions.
A defendant is entitled to a complete and correct charge of the law. State
v. Teel, 793 S.W .2d 236, 249 (Tenn. 1990). A trial judge should properly instruct
the jury on the law governing issues raised by the evidence introduced at trial.
State v. McAfee, 737 S.W .2d 304, 308 (Tenn. Crim. App.1987). If a trial judge
gives instructions that correctly, fully, and fairly set forth the applicable law, it is
not error to refuse to give a special requested instruction. State v. Bohanan, 745
S.W.2d 892, 897 (Tenn.Crim.App.1987). Upon reviewing the entire charge we
may only invalidate it if, when read as a whole, it fails to fairly submit the legal
issues or misleads the jury as to the applicable law. In re Estate of Elam, 738
S.W .2d 169, 174 (Tenn.1987).
Special instructions should be given if "fundamental" to the case. W here
the charge is one that is "fundamental in nature" and "essential to a fair trial,"
failure to give the charge may result in error. State v. Phipps, 883 S.W.2d 138,
142 (Tenn. Crim. App. 1994); Teel, 793 S.W .2d at 249; Souey v. State, 81
Tenn. (13 Lea) 472, 480 (1884).
Here, the trial court gave instructions to the jury in accordance with the
Tennessee Pattern Jury Instructions for first-degree murder as well as the
holdings in Brown and W est. See State v. Brown, 836 S.W.2d 530 (Tenn. 1992);
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State v. West, 844 S.W.2d 144 (Tenn.1992); T.P.I.-Crim. 7.01 (3d. ed.). This
included sections defining the elements of the crime and both premeditation and
deliberation. This was a complete instruction on the law of first-degree murder
as to the required elements to prove the crime beyond a reasonable doubt.
Considering the facts in this case, the instruction that was given was sufficient.
A special instruction must be fundamental to the case before the failure to
issue it becomes error. Unlike Brown, repeated shots were not integral to proving
the case at bar. In Brown, the Defendant beat his three-year-old son to death.
Brown, 836 S.W.2d at 534. In order to support a conviction for first-degree
murder, the State relied solely on circumstantial evidence that the victim had
received repeated blows. Id. at 543. Our supreme court held that “repeated
blows” alone could not support a conviction. The proof in this case, however,
does not rely on the fact that the Defendant inflicted repeated shots. There was
ample evidence through his confession, the taped telephone calls, and the
testimony of witnesses that would sustain a finding that the killings were
premeditated and deliberate. The necessity of a special instruction must be
determined by “the nature of the proceedings and the evidence introduced during
trial.” Teel, 793 S.W .2d at 249; see McAfee, 737 S.W .2d at 308. Thus, the issue
of repeated shots was not fundamental to the proof of this case.
W e cannot conclude that the failure of the trial judge to issue the special
jury instructions prevented the Defendant from receiving a fair trial. We also
agree that the evidence of repeated shots was an issue of fact and that any
inference drawn therefrom, whether it supported or hindered the defense, was
properly left to the jury to decide.
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This issue has no merit.
III.
In his third issue, the Defendant claims that the trial court erred in admitting
his confession on two grounds: (1) That the failure of Sheriff’s Department
detectives to inform him that he could be tried as an adult rendered his
confession involuntary; and (2) that the confession should have been suppressed
because it was not recorded on audio tape.
The Defendant asserts that his waiver of his right to remain silent was
involuntary and violative of the Fifth Amendment to the United States Constitution
and Article I, Section 9 of the Tennessee Constitution. The Fifth Amendment to
the Constitution as applied to the States through the Fourteenth Amendment
insures that the accused may not be compelled to be a witness against himself.
The Tennessee Constitution also provides that a defendant cannot be compelled
to give evidence against himself. Tenn. Const. art. I, § 9. The accused may
waive these rights, but the waiver must be made “voluntarily, knowingly, and
intelligently” and “the accused must be adequately and effectively apprised of his
rights and the exercise of those rights m ust be fully honored.” Miranda v.
Arizona, 384 U.S. 436, 444, 467, 86 S. Ct. 1602, 1612, 1624, 16 L.Ed.2d 694,706,
719 (1966).
The voluntariness test under the Tennessee Constitution is more protective
of individual rights than the test under the Fifth Amendment. State v.
Stephenson, 878 S.W .2d 530, 544 (Tenn. 1994); see State v. Crump, 834
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S.W.2d 265, 268 (Tenn. 1992); State v. Sm ith, 834 S.W .2d 915 (Tenn. 1992). A
waiver is valid if the suspect is aware of the nature of the right being abandoned
and the consequences of the decision to abandon the right. Id. at 547. In
assessing whether a waiver of a right was voluntary, we must look at the totality
of the circum stances surrounding the relinquishment of the right. State v. Benton,
759 S.W.2d 427, 431-32 (Tenn. Crim. App. 1988).
After the Defendant was arrested, he was transported to the Sullivan
County Sheriff’s Department and was placed in an interview room. This was at
approximately 9:30 p.m. Glen Callahan arrived at the Sheriff’s Department and
gave his permission for Lieutenants Christian and Boyd to interview the
Defendant. Christian presented the Defendant with a standard rights form
containing the Miranda warnings and read it to him. The Defendant also read the
form himself and stated that he understood it. Christian asked the Defendant
whether he was willing to talk, and he indicated his assent. Christian then read
a waiver of rights form, which the Defendant signed. He then made a statement.
He was calm and polite. During this time, Lieutenant Christian wrote out,
verbatim, the Defendant’s statement. The Defendant reviewed the statement,
initialed any changes, and signed it. The statement chronicled the events leading
up to, during, and after the killings, resulting in a thirteen-page confession.
The Defendant does not contend that he was coerced into giving a
confession, but claims that his age and the fact that he was not informed that he
could be prosecuted as an adult precluded him from making a knowing and
intelligent waiver. He asserts that he is potentially exposed to two differing
ranges of punishment as a juvenile and as an adult.
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The totality of the circumstances approach has been applied to the
custodial interrogation of juveniles. See Fare v. Michael C., 442 U.S. 705, 99
S. Ct. 2572, 61 L. Ed. 2d 197 (1979). This includes assessing “the juvenile’s age,
experience, education, background, and intelligence, and into whether he has the
capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.” 442 U.S. at
725, 99 S.Ct at 2572. However, “[t]he (United States) Constitution does not
require that a criminal suspect know and understand every possible consequence
of a waiver.” Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct. 851, 857, 93
L. Ed. 2d 954 (1987); see also Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135,
89 L. Ed. 2d 410 (1986). The primary protection afforded by the Miranda warnings
are to prevent coerced self-incrimination and “relevant defendant ignorance.”
Stephenson, 878 S.W .2d at 547.
Our examination of the totality of the circumstances surrounding the
statement made by the Defendant indicates that the relinquishment of his rights
was not the product of intimidation, coercion, or deception, but that it was the
result of the appellant's free and deliberate choice. The Defendant was given
Miranda warnings and read them. He read and signed the waiver as well. His
demeanor was calm and cooperative. He was given something to drink and to
eat. Although he was of a young age, the Defendant has above-average
intelligence and indicated no reason why he could not comprehend what rights
he was relinquishing.
As for not informing him that he could be tried as an adult, there is no
constitutional requirement that mandates such information be provided to secure
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a knowing waiver. Miranda warnings inform a defendant that “anything you say
can be used against you in court.” This applies to any court. Furthermore, the
ultimate decision to try the Defendant as an adult was not made until after he was
questioned and gave his statement. It would have been premature and
inappropriate for the detectives to outline all the legal consequences of a
relinquishment of rights.
Deference is given to the trial court to assess the credibility of the
witnesses and determine issues of fact. At an evidentiary hearing on a motion
to suppress evidence, the trial court’s findings of fact are conclusive. State v.
Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993). The findings of the trial
judge are afforded the weight of a jury verdict and will not be disturbed on appeal
unless the evidence in the record preponderates against the judgment of the trial
court. Id.; see State v. Kelly, 603 S.W .2d 726, 728-29 (Tenn.1980). State v.
Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988); The evidence in the
record does not preponderate against the trial court's findings. This issue is
without merit.
The Defendant also asserts that his confession should have been
suppressed because it was not tape-recorded. He readily admits that there is no
precedent in this state requiring confessions to be recorded. He argues that the
law should be changed. He cites opinions from two state supreme courts that
have instituted a policy that confessions must be tape recorded if at all possible.
State v. Scales, 518 N.W .2d 587 (Minn. 1994); Stephan v. State, 711 P.2d 1156(Alaska 1985).
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In Stephan, the court ruled that custodial interrogations in a place of
detention must be electronically recorded. 711 P.2d at 1162. This holding was
based entirely on that court’s interpretation of the Alaska Constitution. Id. at 1160.
The Minnesota Supreme Court exercised its supervisory power to institute a
recording requirement for custodial interrogations. Scales, 518 N.W .2d 592.
Although we agree that it is preferable to record electronically the reading of
Miranda warnings, the waiver of rights, and custodial interrogations, we decline
to impose this as a requirement for admissability of statements. It inures to the
benefit of law enforcement to record the processes by which it garners
confessions by showing that the procedures were done properly and without
coercion. It is rather curious that the detectives in this case chose to write out the
Defendant’s statement in longhand. Yet, neither the federal nor state
constitutions mandate the use of recording devices. Therefore, we find that the
trial court properly admitted the Defendant’s written statement. This issue has
no m erit.
IV.
As his fourth and final issue, the Defendant claims that the trial court erred
in declining to waive the $47,000 fine assessed by the jury on the count of
second-degree murder. The imposition of fines is guided by the 1989 Sentencing
Act. Second-degree murder is a Class A felony for which the jury may impose
a fine not to exceed fifty thousand dollars ($50,000). Tenn. Code Ann. §§ 39-13-
210(b), 40-35-111(b)(1). Furthermore, the punishment should be justly deserved
in relation to the seriousness of the offense. Tenn. Code Ann. § 40-35-102(1).
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The Defendant asserts that because he is indigent and the fine would pose
an economic hardship, the trial court should have waived the fine. He cites State
v. Bryant, 805 S.W.2d 762 (Tenn. 1991) which approved of the appellate review
of fines. He also notes that the court upheld this Court’s vacating a fine imposed
on an indigent woman who worked as a waitress and newspaper delivery person.
She also was convicted for selling cocaine and was fined $200,000. State v.
Brenda G. Bryant, C.C.A. No. 872, Sullivan County (Tenn. Crim. App., Knoxville,
Dec. 27, 1989), perm. to appeal granted (Tenn. 1990). The Defendant contends
that he is indigent, will likely spend twenty-five years in prison, was in high school
and has no employment record. Yet, proof of indigency and hardship does not
necessarily preclude the punishment of a fine. See State v. Marshall, 870
S.W.2d 532, 542 (Tenn. Crim. App. 1993). If, however, it hampers a defendant’s
rehabilitation, a fine m ay represent an unreasonable punishment. Id.
Here, the Defendant is clearly underage, indigent and has not developed
job skills. There is evidence, though, that he has support from his family that has
not abated even after this calculated and tragic crime. We do not feel that the
imposition of the fine in this case is such that it contravenes the purpose of the
Sentencing Act; rather it reflects the seriousness of the crime for which the
Defendant was convicted. We find no error.
After thoroughly reviewing the record and the Defendant’s arguments in
this appeal, we conclude that none have merit. Accordingly, we affirm the
judgment of the trial court.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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