         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 25, 2005

             STATE OF TENNESSEE v. CARRIE ANN BREWSTER
                    and WILLIAM JUSTIN BREWSTER

                     Appeal from the Criminal Court for Knox County
                    Nos. 75681 and 75684   Mary Beth Leibowitz, Judge



                       No. E2004-00533-CCA-R3-CD Filed April 5, 2005


The defendants, Carrie Ann Brewster and William Justin Brewster, appeal from their Knox County
Criminal Court jury convictions of first degree felony murder, facilitation of first degree
premeditated murder, especially aggravated robbery, and especially aggravated burglary. On appeal,
the defendants claim that the convicting evidence was insufficient to support the convictions and that
the trial court erred in denying the defendants’ motions to suppress their pretrial confessions.
Because the record supports the convictions and the trial court’s ruling on the pretrial motions to
suppress, we affirm; however, we modify the especially aggravated burglary conviction to one of
aggravated burglary.

      Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed, as Modified.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and NORMA MCGEE OGLE, J., joined.

Russell T. Greene, Knoxville, Tennessee, for the Appellant, Carrie Ann Brewster; and Bruce E.
Poston, Knoxville, Tennessee, for the Appellant, William Justin Brewster.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Randall
E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                             OPINION

                At approximately ten o’clock on the evening of June 19, 2002, Michael Atteberry
heard two gunshots at the residence of his neighbor, Bobby David Ervin, the victim. Mr. Atteberry
saw a slender Caucasian male run out of the victim’s house to a red Nissan truck, and a few seconds
later, Mr. Atteberry heard three more gunshots. Then, a second person, Caucasian and heavier in
build than the first person, ran from the house to the truck. The truck left with dispatch but not
hastily. Mr. Atteberry called the police.
               When police officers arrived, they found the body of the victim in a recliner chair in
the living room. The victim had been beaten with a blunt object, stabbed numerous times with a
sharp object, and shot three times with a .357 gun.

               The officers found approximately $13,000 in cash in the victim’s pants pockets.
Behind the recliner, they found two handguns and a large quantity of marijuana and cocaine. The
house was unkempt and in disarray; at trial, the parties differed about whether the house had been
ransacked. The defendants maintained that the disarray was merely the result of the victim’s
customary untidiness. A blood smudge was found inside a dresser drawer in the master bedroom,
and the locked door to a second bedroom had been kicked in by someone wearing shoes that
apparently had tracked through the blood in the living room.

               The officers’ investigation caused them to look for the husband-and-wife defendants,
Carrie Ann Brewster and William Justin Brewster.1 A detective left his number with JB’s mother.
Several hours later, a weeping CB called the detective and said, “You’re not going to believe me;
you’re not going to believe me that I killed that man in self-defense.” The detective suggested that
CB and JB come to the police station.

                The defendants arrived at the station in their automobile. The officers interviewed
them separately, beginning with CB. She signed a written waiver of her Miranda rights and gave
a tape-recorded statement in which she stated that she and JB had killed the victim. Likewise, after
also waiving his Miranda rights, JB confessed that he and CB had killed the victim.2 He admitted
that he took $150, a handgun, and some pills from the victim’s home. The defendants told the
officers that they could find the handgun used in the homicide beneath the front seat in the
defendants’ car. The officers retrieved the .357 revolver, which through forensic analysis proved to
be the gun that fired bullets into the victim’s neck, chest, and arm. In his pretrial statement, JB
admitted that he had obtained the revolver from the rear bedroom in the victim’s house.

               Based upon the foregoing evidence, the jury convicted each defendant of felony first
degree murder, facilitation of first degree premeditated murder, especially aggravated robbery, and
especially aggravated burglary. The trial court merged each verdict of guilty of facilitation of first
degree premeditated murder with the respective verdict of first degree felony murder. Each
defendant received a life sentence for the felony murder conviction and 25-year and 12-year
Department of Correction sentences, respectively, for the especially aggravated robbery and
especially aggravated burglary convictions.



         1
          To facilitate distinguishing between the defendants in this opinion, we will refer to William Justin Brewster
as “JB” and to Carrie Ann Brewster as “CB.”

         2
          Before trial, the defendants requested a joint trial, and each defendant executed a waiver of the right-to-
confrontation interests protected by Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). The trial court
conducted an intensive, thorough voir dire of each defendant and determined that each waiver was competently and
voluntarily made.

                                                         -2-
                 On appeal, each defendant challenges the sufficiency of the convicting evidence and
the trial court’s failure to suppress that defendant’s pretrial statement.

                                  I. Sufficiency of the Evidence.

                 When a defendant challenges the sufficiency of the evidence on appeal, the relevant
question for the reviewing court is whether, after viewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979). Great weight is accorded the result reached by the jury in a criminal trial; a guilty
verdict accredits the state’s witnesses and resolves all factual conflicts in favor of the state. State
v. Shropshire, 45 S.W.3d 64, 70 (Tenn. Crim. App. 2000). On appeal from a verdict of guilty, the
state is entitled to the strongest legitimate view of the evidence and to all reasonable inferences
which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The
guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and replaces
it with a presumption of guilt on appeal, and the defendant, as the appellant, has the burden of
overcoming this presumption of guilt. Shropshire, 45 S.W.3d at 70.

                A person commits felony murder who kills another in the perpetration or attempt to
perpetrate, inter alia, any robbery or burglary. Tenn. Code Ann. § 39-13-202(a)(2) (2003). A person
commits premeditated first degree murder who kills another premeditatedly and intentionally. Id.
§ 39-13-202(a)(1).

               “[P]remeditation” is an act done after the exercise of reflection and
               judgment. “Premeditation” means that the intent to kill must have
               been formed prior to the act itself. It is not necessary that the purpose
               to kill pre-exist in the mind of the accused for any definite period of
               time.

Id. § 39-13-202(d). “A person is criminally responsible for the facilitation of a felony if, knowing
that another intends to commit a specific felony, but without the intent required for criminal
responsibility under [section] 39-11-402(2), the person knowingly furnishes substantial assistance
in the commission of the felony.” Id. § 39-11-403(a). Facilitation of premeditated first degree
murder is a lesser included offense of premeditated first degree murder. State v. Burns, 6 S.W.3d
453, 470 (Tenn. 1999).

                A person commits especially aggravated robbery who knowingly or intentionally
steals property from the person of another by violence or by putting the person in fear, id. § 39-13-
401(a), a deadly weapon is used to accomplish the robbery, id. § 39-13-403(a)(1), and the victim
suffers serious bodily injury, id. § 39-13-403(a)(2).




                                                 -3-
                 A person commits especially aggravated burglary who, without the effective consent
of the owner, enters a building “not open to the public with intent to commit a felony, theft or
assault,” id. § 39-14-402(a)(1), and the victim suffers serious bodily injury, id. § 39-14-404(a).

               In the light most favorable to the state, the evidence in the present case shows that,
with CB’s assistance, JB entered the victim’s home without his consent for the purpose of robbing
him. JB’s pretrial statement reveals that he knew that the victim kept a large wad of money and a
cache of drugs in the locked back bedroom, which JB entered by kicking down the door during the
victim’s assault. The victim clearly suffered serious bodily injury as a result of the beating, stabbing,
and shooting inflicted by the defendants. Therefore, the evidence supports a verdict of guilty of
especially aggravated burglary for both defendants.

                Once both defendants were inside the house, the two of them assaulted the victim
with multiple deadly weapons. JB beat the victim with a baseball bat, and CB beat him with a
hammer. Apparently, at some point CB stabbed the victim with a knife, and after JB retrieved the
victim’s .357 handgun from the back bedroom, CB shot the victim three times. The victim died from
his injuries. The defendants took about $150 in cash, some pills, and the handgun from the victim’s
house. Accordingly, the evidence supports the convictions of especially aggravated robbery.

                Because the defendants killed the victim during their perpetration of a burglary and
a robbery, the evidence supports the defendants’ convictions of felony murder.

                Also, we conclude that the evidence supports the guilty verdicts of facilitation of
premeditated first degree murder. The totality of assaults committed against the victim were
accomplished cooperatively by two people using at least four deadly weapons and, apparently,
requiring an extended period of time to complete. The medical examiner opined that due to the
various brain hemorrhages caused by the blows to the victim’s head there existed a “great
possibility” that he would have died from the “secondary brain edema” resulting from these blows,
had his life not been extinguished preemptively by the gunshot wound through the chest.
Nevertheless, after the initial assaults with the bat, hammer, and knife, JB broke into the rear
bedroom, found the handgun, gave it to CB, and CB then shot the victim three times. Two of the
shots were fired at a very close range. We have no trouble discerning that at least the gunshots were
inflicted premeditatedly. Also, because the victim’s defensive efforts were overcome by the
combined efforts of the armed defendants, the jury had a basis for concluding that both of them
furnished substantial assistance in the commission of first degree murder.3 Moreover, this court has
recognized that when “the evidence was sufficient to support conviction for the greater offense
charged, the defendant cannot complain of the jury finding him guilty of the lesser offense.”
McDonald v. State, 512 S.W.2d 636, 640 (Tenn. Crim. App. 1974).

                   Therefore, we conclude that the evidence supports each and every conviction of both
defendants.


        3
            The medical examiner opined that the blunt trauma to the victim’s head would have caused unconsciousness.

                                                         -4-
                                   II. Suppression of Statements.

               The defendants moved the trial court to suppress the inculpatory statements they
separately gave to Knoxville Police Department Major Crimes Detective A.J. Loeffler. Each
defendant claims that the statement was made unknowingly and involuntarily. The trial court
conducted a pretrial evidentiary hearing. Detective Loeffler testified that CB called him and tearfully
admitted that she had killed the victim in self-defense. Detective Loeffler asked that CB and JB
come to the police station.

                 When they arrived, Detective Loeffler and another officer interviewed them
separately. Detective Loeffler testified that CB was distraught and crying. He testified that he read
to CB the litany of Miranda rights and that she waived them in writing. He testified that, although
she was upset, CB did not appear to be under the influence of any alcohol or drugs and was
intelligent and responsive. He testified that he did not force or coerce her to give a statement and
made no promises in exchange for a statement. In particular, he denied that CB requested an
attorney. He agreed that he told CB that she should think of her children when assessing whether
to tell the truth about the homicide.

                 Detective Loeffler testified that, when JB came into the interview room, he seemed
“groggy” and “thick-tongued.” The detective concluded, however, that although JB had admitted
taking Xanax several hours earlier, he was mentally aware and responsive. Detective Loeffler
testified that he read the Miranda litany to JB, that JB signed a written waiver, and that JB appeared
to understand the questions and did not “doze off.” The detective testified that although JB was
upset and cried, he was not coerced in any way.

                CB testified at the suppression hearing that when she called the police station to reach
Detective Loeffler, a female at the station told her over the phone that the defendants “had an hour
to get [themselves] up here or – something to the effect that your kids are gone. Or you’ll lose your
kids.” CB testified that she panicked at this threat, and she started driving herself and JB to
Knoxville from their mobile home in Dandridge. She testified that during the trip, JB ingested
hydrocodone and Valium pills from a bottle. She testified that she wished to have an attorney
present, and when they arrived at the police station, she asked Detective Loeffler how long it would
take to get any attorney there. When he responded that it would take 72 hours, she and JB agreed
to be interviewed without an attorney. She admitted that, during the interview, the detective asked
her if she wanted an attorney, and she responded, “No.”

               She testified that she had never before been arrested and was unfamiliar with police
procedures. She stated that Detective Loeffler facilitated her making inculpating statements by
denigrating the victim, affirming the victim’s history of drug dealing and violence, and expressing
empathy for the defendants’ feeling threatened by the victim and the victim’s family. She admitted
in the suppression hearing that some of her pretrial statement was untrue.




                                                  -5-
                She testified that during the interview, she felt she was not free to leave. She was not
told that she could leave, the door to the room was closed, and the officers had declined at one point
to let her go out to smoke a cigarette.

                CB testified in the hearing that on the night the statements were given, JB, who was
a “pill head,” was “too out of it” to give a statement.

              JB did not testify at the suppression hearing. He submitted exemplars of his signature
which, he maintained, varied significantly in clarity from his signature on the Miranda waiver form.

                 The trial court denied both motions to suppress. The judge commented that the
defendants both came into the police station voluntarily “for whatever reasons brought them in.”
She observed, “[CB] may have come in out of fear that her children might be taken away[,] but she
came in to deal with the issue and did it voluntarily.” The trial judge discerned nothing wrong with
the interrogation and characterized it as free of badgering and coercion. Although the judge agreed
with Detective Loeffler after listening to the tape of JB’s statement that JB’s voice sounded
“somewhat slurred,” she had never heard JB’s normal voice. She did compare his waiver signature
with the signature exemplars but found the latter to be only “a little different from the waiver.” The
judge stated that the record failed to articulate what kind of, or how many, pills JB had taken. The
court found that, despite JB’s slurred speech, “it is clear that . . . he understood [the] questions[,]
. . . that he answered those questions and . . . he clarified many times.” Significantly, the judge
thought, JB was able to repeat the faux explanation for the homicide that CB had “made up.” In
sum, the judge determined that JB made “a free, knowing, voluntary and understood statement.”

                At an evidentiary hearing, the state has the burden of demonstrating by a
preponderance of the evidence that the defendants’ statements were voluntary, knowing and
intelligent. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). A trial court’s determination at a
suppression hearing is presumptively correct on appeal, State v. Stephenson, 878 S.W.2d 530, 544
(Tenn. 1994), and the findings are binding upon this court unless the evidence contained in the
record preponderates against them, State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); Stephenson, 878
S.W.2d at 544; State v. Aucoin, 756 S.W.2d 705, 710 (Tenn. Crim. App. 1988).

                Under this standard, matters regarding the credibility of witnesses, the weight and
value to be afforded the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial court. Odom, 928 S.W.2d at 23. Thus, on appeal, the defendant has the burden of
showing that the evidence preponderates against a finding that a confession was, in fact, knowingly
and voluntarily given. State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984). In determining whether
a statement is made voluntarily, this court must look to the totality of the circumstances surrounding
the confession, and the standard is whether “the behavior of the state’s law enforcement officials was
such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.”
Kelly, 603 S.W.2d at 728.




                                                  -6-
               The Fifth Amendment right to counsel attaches during custodial interrogation.
Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct. 1880, 1883-84 (1981). If a defendant requests
counsel while being given his Miranda warnings or during custodial interrogation, the interrogation
must cease. Id. at 482, 101 S. Ct. at 1883; Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct.
1602, 1612 (1966); State v. Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996). In that situation, any
subsequent statement made by a defendant as a result of police-initiated interrogation must be
suppressed. Edwards, 451 U.S. at 477, 101 S. Ct. at 1880.

                The United States Supreme Court has held that an accused must articulate his desire
to have counsel present unambiguously and with sufficient clarity so that a reasonable police officer
under those specific circumstances would understand the statement to be a request for counsel. See
Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994); Huddleston, 924 S.W.2d
at 669. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the
officers have no obligation to stop questioning. Davis, 512 U.S. at 460, 114 S. Ct. at 2356. An
equivocal or ambiguous request for counsel does not trigger the Edwards requirement under the Fifth
Amendment. Id. at 452, 114 S. Ct. at 2350; Huddleston, 924 S.W.2d at 669-70. In other words,
“[u]nless the suspect actually requests an attorney, questioning may continue.” Davis, 512 U.S. at
462, 114 S. Ct. at 2357. To unequivocally invoke one’s right to counsel, the suspect “must articulate
his desire to have counsel present sufficiently clearly that a reasonable officer would understand the
statement to be a request for an attorney.” Huddleston, 924 S.W.2d at 670.

               The determination whether the appellant made a request for an attorney, equivocal
or unequivocal, is a question of fact for the trial court to determine. State v. Farmer, 927 S.W.2d
582, 594 (Tenn. Crim. App. 1996).

                In the present case, the evidence does not preponderate against the trial court’s
findings of fact that resulted in a denial of the motions to suppress. The defendants’ waivers and
their tape-recorded statements support the trial court’s findings that the defendants acted voluntarily
and free of coercion when they essentially confessed to killing the victim and asporting with some
of his property. The trial court did not accredit CB’s suppression-hearing testimony that her will to
remain silent was overborne by a threat to take her children from her and/or by the rigors of custodial
interrogation. Although CB cried at times during the interview, the tenor of her answers to questions
and her spontaneous narration of events attested to purposeful awareness and voluntariness in her
conversation with Detective Loeffler. Although the trial court did not make a specific finding about
whether CB requested an attorney, its rejection of this claim is implicit when Detective Loeffler
affirmatively testified that no such request was made, and the judge was clearly impressed with the
detective’s professionalism and credibility. We conclude that the trial court accredited the
detective’s statement that no request for an attorney was made.

                As noted by the trial judge, JB’s voice in the tape-recorded interview sounds slurred.
However, as also noted by the trial judge, the record contains no basis for a court’s determining
whether the defendant’s voice on the tape is substantially different from his normal speaking voice.
JB did not testify in the suppression hearing, and we are at a loss to discern in the record that he was


                                                  -7-
drug-impaired or otherwise limited at the time he signed the Miranda waiver and gave the
approximately two-hour long statement. JB’s replies to the detectives’ questions were generally
responsive, meaningful, and lucid. All in all, the record supports the trial court’s determination that
JB gave a knowing and voluntary statement.

              III. Statutory Bar to Especially Aggravated Burglary Conviction.

               As a matter of plain error, see Tenn. R. App. P. 13(b), we notice that Tennessee Code
Annotated section 30-14-404(d) prohibits prosecution of acts of especially aggravated burglary both
as especially aggravated burglary and as some other offense, such as the especially aggravated
robbery in the present case. Id. § 39-14-404(d) (2003); see State v. James Ruben Conyers, No.
M2002-01007-CCA-R3-CD (Tenn. Crim. App., Nashville, Sept. 5, 2002). As a result, the
defendant’s conviction of especially aggravated burglary must be reduced to aggravated burglary.
We impose that conviction and a Class C, Range I sentence of six years.

                                    IV. Conclusion.

               We affirm the judgments of the trial court, except that we modify the conviction of
especially aggravated burglary to aggravated burglary, for which we impose a sentence of six years.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                 -8-
