             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE            FILED
                            SEPTEMBER 1998 SESSION
                                                          January 6, 1999

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,                  )
                                     )   C.C.A. NO. 03C01-9707-CR-00261
             Appellee,               )
                                     )   KNOX COUNTY
VS.                                  )
                                     )   HON. RICHARD BAUMGARTNER,
JOANNA GAIL ROSA,                    )   JUDGE
                                     )
             Appellant.              )   (First-Degree Murder)



FOR THE APPELLANT:                       FOR THE APPELLEE:


M. JEFFREY WHITT                         JOHN KNOX WALKUP
706 Walnut St., Suite 902                Attorney General & Reporter
Knoxville, TN 37902
                                         ELIZABETH B. MARNEY
                                         Asst. Attorney General
                                         John Sevier Bldg.
                                         425 Fifth Ave., North
                                         Nashville, TN 37243-0493

                                         RANDALL E. NICHOLS
                                         District Attorney General

                                         GREGORY H. HARRISON
                                                -and-
                                         S. JO HELM
                                         Asst. District Attorneys General
                                         P.O. Box 1468
                                         Knoxville, TN 37901-1468



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                    OPINION



             A jury found the defendant guilty of the first-degree premeditated murder

of James Dalton and sentenced her to life imprisonment. The defendant now appeals,

presenting the following issues for review:

             I.  Whether the evidence was            sufficient to prove
             premeditation and deliberation;

             II. Whether the trial court should have suppressed the
             defendant’s confession on the theory it was involuntarily
             given;

             III. Whether the trial court committed reversible error by not
             allowing the defendant to call her co-defendant to the witness
             stand, when the co-defendant would have merely invoked his
             Fifth Amendment privilege against self-incrimination; and

             IV. Whether the trial court properly charged the jury with
             range of punishment, when the State failed to request such
             an instruction until after the conclusion of the proof.

Finding no merit to the defendant’s arguments, we affirm.



             On March 25, 1995, the defendant; her co-defendant, Dennis Halcomb; the

murder victim, James Dalton; and two friends, Teresa Dake and Larry Davis, rented two

adjoining motel rooms in Athens, Tennessee, and spent the evening “partying.” The next

day, the group decided to spend another evening at the motel. That evening, while

Dalton and Davis remained at the motel, the defendant, co-defendant Halcomb, and

Dake robbed the gas station where Dake worked.



             Early the next morning, on March 27, 1995, the group left Athens and drove

to Knoxville, stopping at another motel, where they again rented adjoining rooms. The

defendant, co-defendant Halcomb, and Dake expressed concern that Dalton would report

the robbery to authorities. The defendant said they were going to have to “do something”

to keep him from “saying anything.” Later, while Davis and Dake slept in one of the motel


                                              2
rooms and Dalton slept in the other, the defendant and co-defendant Halcomb discussed

what to do about Dalton. They planned to take Dalton’s wallet and car, and Halcomb said

he was going to knock Dalton out. The defendant took Dalton’s keys and wallet and put

them in the room where Dake and Davis were sleeping.



              When the defendant returned, Dalton confronted co-defendant Halcomb

about his missing keys and wallet. Halcomb, who was approximately 6'3" and weighed

over 200 pounds, began hitting Dalton, who was approximately 5'4" and 145 pounds.

Halcomb held Dalton’s neck in a choke-hold and asked the defendant to help him. While

Dalton was on his knees leaning over the bed, the defendant grabbed the front of

Dalton’s throat and choked him, even while Dalton gasped for air and begged her to stop.

Halcomb removed Dalton’s belt from his pants, placed it around Dalton’s neck, and told

the defendant to hold the belt. While Halcomb went to the restroom, the defendant

choked Dalton with the belt until his face turned blue. When Halcomb returned, the

defendant checked Dalton for a pulse, but did not find one.



              They drove Dalton’s body to an area of town with which the defendant was

familiar. After the defendant sliced Dalton’s throat with a box cutter to ensure he was

dead, they dumped his body on the side of the road, covering it with leaves. They

returned to the motel, picked up Dake, and traveled in Dalton’s car to Illinois to visit the

defendant’s family and then to Daytona Beach, Florida.



              Meanwhile, Dalton was reported missing. On April 3, 1995, Sherry Wade,

a friend of Dake and the defendant, received a call from the defendant. Knowing Dalton

was missing and thinking he might be with them, Wade asked the defendant where

Dalton was. At first, the defendant replied she did not know, but then she told Wade “he

was gone; he’s gone; he’s under a tree.” A couple of days later, Wade reported this


                                             3
conversation to the McMinn County Sheriff’s Department.



              On April 6, 1995, the defendant, her co-defendant, and Dake were

apprehended in a traffic stop while driving Dalton’s vehicle in Florida. During an interview

by the Florida authorities, the defendant initially denied knowing anything about Dalton’s

disappearance, but she later drew a map showing where his body was buried. Using the

map, Tennessee authorities found the body. The defendant was arrested and waived

extradition to Tennessee where she was indicted. Following her jury trial, which was

severed from co-defendant Halcomb’s trial, the defendant was found guilty of first-degree

murder and sentenced to life imprisonment.



              The defendant first argues that the evidence was insufficient to prove that

she killed Dalton after premeditation and deliberation.            See T.C.A. § 39-13-

202(a)(1)(Supp. 1994)(defining first-degree murder as the “intentional, premeditated and

deliberate killing of another” person). Premeditation requires proof that the defendant

had a previously formed design or intent to kill and acted after exercising reflection or

judgment. T.C.A. § 39-13-201(b)(2) (1991); State v. Brown, 836 S.W.2d 530 (Tenn.

1992); State v. West, 844 S.W.2d 144 (Tenn. 1992). Deliberation requires a showing of

a “cool purpose,” that is, that the defendant had some time to reflect and that his or her

mind was free of impulse and passion prior to the killing. T.C.A. § 39-13-201(b)(1)(1991);

Brown, 836 S.W.2d at 540. The elements of premeditation and deliberation are jury

questions that may be established by proof of the circumstances surrounding the killing.

Id. at 539. Several factors support the existence of these elements, including the use of

a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defendant of an intent to kill; evidence of procurement of a weapon; preparations

before the killing for concealment of the crime; and calmness immediately after the killing.

State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).


                                             4
                 Here, the evidence shows that prior to their attack on Dalton, the defendant,

co-defendant Halcomb, and Dake discussed their concern that Dalton would report the

robbery they had committed. The defendant said they were going to have to “do

something” to keep him from “saying anything.” Later, the defendant and co-defendant

Halcomb discussed what to do about Dalton. According to the defendant’s confession,1

she and Halcomb planned to take Dalton’s wallet and car. The defendant admitted

helping Halcomb choke Dalton, first with her hand and then with Dalton’s belt, even

though he begged her to stop. After Halcomb left the room, the defendant continued to

choke Dalton until his face turned blue. When asked what she was trying to accomplish

by choking him, the defendant told authorities, “Kill him, I guess.” These circumstances

establish that the defendant acted after the exercise of reflection or judgment and with

a previously formed intent to kill, which supports a finding of premeditation. See T.C.A.

§ 39-13-201(b)(2) (1991); Bland, 958 S.W.2d at 660.



                 The evidence also showed that immediately after the killing, the defendant

helped choose an isolated area to dump Dalton’s body and then covered the body with

leaves to prevent detection. The defendant told authorities that she kept Dalton’s wallet

in order to prevent the body from being identified. She also admitted in her confession

that she sliced Dalton’s throat to ensure he was dead.                          Then, she, co-defendant

Halcomb, and Dake fled to Illinois, where they visited the defendant’s family as if nothing

had happened. These circumstances indicate a calmness immediately following the

killing, which supports a finding of deliberation. See Bland, 958 S.W.2d at 660; Brown,

836 S.W.2d at 540.



                 We recognize that at trial, the defendant contradicted her confession,

        1
           Regardless of the defendant’s argument that her statement should have been suppressed, the
sufficien cy of the co nvicting evid ence m ust be ex amin ed in light of all evid ence p resente d to the jury.
See, e.g., State v. Longstreet, 619 S.W .2d 97 (T enn. 198 1); State v. Ro bert L ee “F lippo” Mor ris, No.
1195, Ham ilton County (Tenn. Crim. App. filed Novem ber 20, 1991, at Knoxville).

                                                        5
testifying that she did not choke Dalton or intend to kill him; that she loosened the belt

around his neck in order to allow him to breathe; that Halcomb, who was upset, choked

Dalton until he died; and that she cut Dalton’s throat solely to prevent his suffering.

Factual discrepancies such as these are properly resolved by the jury, not by this Court.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).               Thus, regardless of the

defendant’s testimony, sufficient evidence remains in the record to support the jury’s

findings of premeditation and deliberation.



              Next, the defendant argues that the trial court erred in failing to suppress

statements she made to Tennessee authorities. She first argues that her statements

should have been suppressed because she was denied her Sixth Amendment right to

counsel by not being informed of her right to counsel or offered an attorney by a neutral

magistrate within twenty-four hours of her arrest in Florida. She fails, however, to cite any

authority on this point, thus waiving this issue for review. Rules of the Court of Criminal

Appeals of Tennessee 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.

1988). Even so, the defendant’s argument lacks merit because at the suppression

hearing, a Florida law enforcement agent testified that the defendant appeared before a

judge on April 7, 1995, within twenty-four hours of her arrest, at which time she would

have again been advised of her right to counsel. Although the defendant argues she did

not appear before a judge until April 11, and then appeared only to waive extradition, the

trial court was within its authority to accredit the testimony of the Florida law enforcement

agent over the testimony of the defendant. Because the evidence supports the trial

court’s finding that the defendant was advised of her right to counsel by a neutral

magistrate within twenty-four hours of her arrest, the defendant’s contentions lack merit.

See State v. Kelly, 603 S.W.2d 726, 728-29 (Tenn. 1980)(findings of a trial court will not

be disturbed on review unless the evidence preponderates against those findings).




                                              6
              The defendant also argues that the totality of the circumstances---

specifically, her age, her limited education, her lack of experience with the law, the length

of the interrogation, and her lack of food and sleep---indicate her confession was

involuntary. We do not agree.



              In order to determine whether a defendant’s waiver of Miranda rights was

made voluntarily, knowingly, and intelligently, we must consider the totality of the

circumstances surrounding the case. State v. Benton, 759 S.W.2d 427, 431-32 (Tenn.

Crim. App. 1988). The wisdom of the defendant in deciding to make a statement, or his

or her failure to foresee the effects of that statement, are irrelevant to the determination

of a valid waiver. See Harris v. Riddle, 551 F.2d 936, 939 (4th Cir. 1977).



              Here, the evidence at the suppression hearing showed that the defendant

voluntarily confessed her involvement in Dalton’s death and was arrested in Florida on

April 6, 1995; appeared before a Florida judge on April 7 and 11; and traveled with

authorities by plane to Tennessee on April 19, arriving in the evening. She was

immediately read her Miranda rights, waived those rights at 10:53 p.m., was served with

the capias charging her with first-degree murder at 11:15 p.m., and then was interviewed.

The interview concluded by 1:30 a.m. on April 20.



              At the time of her statement, the defendant was twenty-three years old, had

completed only the eighth grade, and could read and write fairly well. She testified she

had been previously charged with felony theft and had pled guilty without requesting the

aid of an attorney. During the days leading up to her transfer to Tennessee, she did not

eat or sleep much because she was not feeling well, but she has never claimed that her

lack of food or sleep prevented her from appreciating the seriousness of her

circumstances or understanding what was happening. She testified that she had been


                                             7
read and had understood her Miranda rights in Florida and had voluntarily given a

statement to the Florida authorities confessing her involvement in Dalton’s death. She

further admitted she understood at the time she was being brought back to Tennessee

for charges involving Dalton’s death, that Detective Johnson of the Knox County Sheriff’s

Department had informed her of her Miranda rights, and that she had waived those rights.

She also testified that Detective Johnson had told her she would not need an attorney for

the interrogation that followed, but Detective Johnson denied so advising the defendant.

The defendant admitted that at no time was she coerced or forced to give a statement.




              The trial court specifically discredited the defendant’s testimony that

Detective Johnson had advised her she would not need an attorney. The trial court also

found that the defendant had been properly advised of her rights, had understood her

rights, and had voluntarily given statements to the authorities. The evidence supports

these findings. Considering the totality of the circumstances, there is simply no indication

that the defendant’s statement was anything other than voluntary. That being so, the trial

court properly denied the defendant’s motion to suppress.



              Next, the defendant argues that the trial court committed reversible error by

not allowing her to call co-defendant Halcomb to the witness stand, even though Halcomb

would have merely invoked his Fifth Amendment privilege against self-incrimination

because his trial was pending. The defendant fails to cite any authority to support her

argument, thus waiving review of it. Rules of the Court of Criminal Appeals of Tennessee

10(b); Killebrew, 760 S.W.2d at 231. Even so, the defendant’s argument lacks merit.



              The propriety, scope, manner, and control of examination of witnesses is

within the trial court’s sound discretion. State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992).


                                             8
“It is not error to refuse to force a witness to take the stand to claim his Fifth Amendment

privilege in front of a jury, nor may a jury draw inferences from the decision of a witness

to exercise his constitutional privilege against self-incrimination.” Id. Here, the defendant

claims she wanted to call Halcomb to the witness stand not just so the jury could see him

invoke his Fifth Amendment privilege, but also to show the jury the difference between

Halcomb’s size and Dalton’s size (even though the jury was told of this discrepancy in

size) and to question him about topics that might not cause him to incriminate himself,

such as his relationship with Dalton. Halcomb stood accused of the same crime as the

defendant, and the record demonstrates that the defendant and Halcomb acted in

concert to kill Dalton. By inference, then, almost anything Halcomb could have said was

potentially incriminating. See State v. Zirkle, 910 S.W.2d 874, 890-91 (Tenn. Crim. App.

1995). Thus, the trial court properly refused to allow the defendant to call Halcomb as

a witness. Harris, 839 S.W.2d at 72.



              Finally, the defendant argues that the trial court erred in charging the jury

with range of punishment, when the State first requested such an instruction after the

conclusion of the proof. The defendant relies upon T.C.A. § 40-35-201(b)(1), which

states, “In all contested criminal cases . . . upon the motion of either party, filed with the

court prior to the selection of the jury, the court shall charge the possible penalties for the

offense charged and all lesser included offenses.” The defendant argues that because

the State requested the instruction after jury selection, she was prejudiced because she

was prevented during voir dire from questioning potential jurors about their beliefs

regarding the length of punishment.



              The defendant has not shown reversible error. At the conclusion of the

proof, the State requested an instruction on the range of punishment for first-degree

murder and all lesser included charges. According to § 40-35-201(b)(1), the trial court


                                              9
was not required to give these requested instructions because the State had failed to

request them prior to jury selection. Regardless, the trial court instructed the jury on the

ranges of punishment for first-degree murder, second-degree murder, reckless homicide,

and criminally negligent homicide. Even assuming the trial court erred in giving this

instruction, the defendant has not suffered prejudice because she was convicted of first-

degree murder, not any of the lesser-included offenses, and was sentenced to the

minimum sentence for first-degree murder, life imprisonment. Thus, to the extent the trial

court’s decision to instruct the jury on the ranges of punishment might have been error,

it was harmless. Tenn. R. Crim. P. 52(a).



              Finding no merit in the defendant’s arguments, we affirm her conviction and

sentence.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge



                                        DISSENT



              I respectfully dissent.    The majority holds that an indictment which

references a lesser culpable mental state than is required by statute must be attacked

pretrial or any complaint concerning the defect is waived. The majority bases its holding
on the curious notion that “[s]ince proof of <knowing' conduct does not necessarily

disprove <intentional' conduct, the defect in the indictment is not of the character which

would be classified as a defect that fails to charge an offense” (emphasis in original). The

majority misapprehends the significance of the defects which the instant indictment

contains.



              Our criminal code provides that offenses consist of both the act and the

culpable mental state which are statutorily proscribed. T.C.A. § 39-11-101. It further

provides that indictments must

              state the facts constituting the offense in ordinary and
              concise language, without prolixity or repetition, in such a
              manner as to enable a person of common understanding to
              know what is intended, and with that degree of certainty
              which will enable the court, on conviction, to pronounce the
              proper judgment.

T.C.A. § 40-13-202 (emphasis added). This provision is not merely a statutory nicety.

It arises from our state and federal constitutions which require that an accused be

informed of the nature and cause of the charges levied against him. See U.S.Const.

amends. VI and XIV; Tenn. Const. art. I, § 9.



              The culpable mental state which constitutes the mens rea element of

evading arrest is “intentional,” not “knowing.” T.C.A. § 39-16-603(a) (1991). Thus the

instant indictment does not, contrary to statutory requirement, state the facts which

constitute the offense. Rather, it sets forth an act and a culpable mental state which

(together) do not constitute an offense. In other words, the instant indictment “fails . . .

to charge an offense.” Tenn. R. Crim. Proc. 12(b). Accordingly, the defect was not

waived by the defendant's failure to raise his objection pretrial. Id. Moreover, because

it fails to charge an offense, the conviction based upon it is a nullity. State v. Trusty, 919

S.W.2d 305, 310 (Tenn. 1996).


                                             1 1
              The majority's holding allows the State to play fast and loose with

indictments because, under its holding, so long as there is sufficient proof at trial of the

required mental state, it matters not what mental state was alleged in the indictment. Our

Supreme Court has noted, however, that “it is unnecessary to charge guilty knowledge

unless it is included in the statutory definition of the offense.” State v. Hill, 954 S.W.2d

725, 729 (Tenn. 1997) (emphasis added). Guilty knowledge is included in the statutory

definition of evading arrest and it was therefore necessary to charge it. The State should

not now be allowed to shirk its accountability for its mistake by crying “waiver.”



              Nor am I consoled by the indictment's reference to the relevant statute.

Taken to its logical extreme, this line of reasoning will soon allow the State to allege

nothing more in an indictment than that the defendant “violated Tennessee Code

Annotated Section [insert appropriate statute here].” I do not think that this result is what

the framers of our constitutions, much less the drafters of our current criminal code, had

in mind.



              Even if, however, the majority is correct in holding that mental states may

be freely substituted for one another in indictments, I would find the instant indictment

fatally defective on other grounds. The relevant count of the indictment provides in

pertinent part that “on or about the 14th day of December 1993 . . . [the defendant] did

unlawfully and knowingly flee from Sheriff Delphus Hicks and Deputy Doug Brown . . .

known to [the defendant] to be . . . law enforcement officers from [sic] effecting [his]

arrest.” The statute which the defendant was thereby accused of violating provides as

follows: “It is unlawful for any person to intentionally flee from anyone the person knows

to be a law enforcement officer and the person: (1) Knows the officer is attempting to

arrest the person; or (2) Has been arrested.” T.C.A. § 39-16-603(a) (1991). Thus, the



                                            1 2
crime of evading arrest consists of the following essential elements: (1) the defendant

intentionally flees from persons he knows to be law enforcement officers and (2) the

defendant knows the officers are attempting to arrest him or they already have arrested

him. T.C.A. § 39-16-603(a) (1991). It is not a crime under this statute for a person to

intentionally flee police officers because, for instance, he does not want to be questioned,

he simply dislikes or fears officers, or because he enjoys taunting them. The crime is

committed when a person flees in a deliberate attempt to escape arrest. Of course, such

deliberate conduct requires that the person know an arrest is being attempted.



              The indictment in the instant case makes absolutely no reference to the

defendant's awareness that the officers were attempting to arrest him. Nor is it possible

to logically infer the missing element from the words “from effecting [the defendant's]

arrest.” Cf. Hill, 954 S.W.2d at 727 (holding an indictment containing no reference to the

mens rea element valid if it otherwise meets constitutional and statutory requirements and

“the mental state can be logically inferred from the conduct alleged.”) Nor is this element

necessarily implied by the remaining allegations. Cf. Marshall, 870 S.W.2d at 538

(holding an indictment valid where a missing element of the offense is “necessarily

implied” from the allegations made). Thus, while we do not doubt that the police officers

were in fact attempting to arrest the defendant, there is no language in the indictment

which establishes that the defendant knew or was aware of the officers' intent. As set

forth above, the defendant may have been knowingly running from persons he knew to

be police officers without knowing that they were trying to arrest him. Given the plain

language of the statute, this omission is fatal.



              Because the indictment charging evading arrest fails to allege the essential

element that the defendant knew the officers were trying to arrest him, it cannot support



                                            1 3
his conviction. Accordingly, I would reverse the defendant's conviction for that offense

and dismiss the charge.




                                          1 4
