           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                          MAY 2000 Session

    STATE OF TENNESSEE v. TONY JAMERSON A/K/A TONY MCNUTT

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 98-10234    Joseph B. Dailey, Judge



                  No. W1999-00935-CCA-R3-CD - Decided August 28, 2000


The appellant, Tony Jamerson, appeals from his conviction of first degree premeditated murder, for
which he is serving a sentence of life without the possibility of parole. He alleges his conviction was
based upon insufficient evidence of premeditation, that his confession was obtained in violation of
his constitutional rights and improperly admitted as evidence against him, and that he was denied
his right to confront a witness against him by the trial court’s ruling limiting the scope of cross-
examination of a witness. Finding no merit in these contentions, we affirm the judgment of the trial
court.


                 Tenn. R. App. P. 3; Judgment of the Trial Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH, J., and
ROBERT W. WEDEMEYER , J., joined.

Greg Carman and Amy Mayne, Memphis, Tennessee, for the Appellant

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General,
William L. Gibbons, District Attorney General, Memphis, Tennessee, Jennifer Nichols, Assistant
District Attorney General, Memphis, Tennessee, for the Appellee

                                              OPINION


               Tony Jamerson, also known as Tony McNutt, appeals from his conviction of the first
degree premeditated murder of Ernest Goodwin.1 Jamerson is presently serving a sentence of life
without the possibility of parole for the crime. In this direct appeal, Jamerson challenges the
sufficiency of the convicting evidence, the admissibility of his confession, and the limitations



       1
               The victim was a female.
imposed upon his cross-examination of Sergeant James Fitzpatrick. We have reviewed the record,
the briefs of the parties and the applicable law. Because we find no reversible error, we affirm.

                In the light most favorable to the state, the evidence at trial demonstrated that Tony
Jamerson was living as a roomer with the victim, Ernest Goodwin. On the afternoon and evening
of January 7, 1998, Jamerson drank beer and smoked crack cocaine. Around 9:00 p.m., Jamerson
called his aunt and asked her for $20.00 for his granddaughter’s daycare. The aunt told him she did
not have cash but would write him a check. Jamerson inquired where he might cash a check, and
he never went to the aunt’s house to get the check.

                Jamerson arrived at the home he shared with the victim at about 10:45 p.m. He talked
with the victim and asked her to loan him $20.00. The victim told him she did not have $20.00.
Jamerson thought the victim was lying to him. Around 11:00 to 11:30 p.m., Jamerson again called
his aunt’s house to inquire about a $20.00 loan. This time he spoke with his uncle, who told him he
did not have $20.00 in cash. The defendant inquired where he might cash a check at that hour, and
his uncle told him he did not know.

                Sometime before about midnight, the victim retired to her bedroom. Jamerson went
to the kitchen and retrieved a bottle of wine. He then went into the victim’s bedroom. The victim
was resting on her bed. Jamerson struck her at least five times on the head with the bottle of wine.

                After inflicting the blows, Jamerson washed his hands and the bottle of wine. He
changed his clothes, putting his soiled clothing and the bottle of wine into a garbage bag. He moved
the victim’s body to a closet and covered it with sofa pillows. He retrieved the victim’s keys and
pulled her car to a convenient location. He took a bank containing change from the victim’s room
and loaded a 30-inch television set, a vacuum cleaner, and a telephone into the car.

               Jamerson drove away and disposed of the garbage bag containing his clothing and
the murder weapon. He then traded the television, vacuum cleaner and telephone for ten $15.00
rocks of crack cocaine. He used the cocaine. After staying with the victim’s car until it ran out of
gas, Jamerson eventually wound up at his cousin’s house, where he was apprehended in the early
evening hours of January 9.

               On January 8, the morning following the murder of the victim, she did not show up
for work at 5:00 a.m., and her granddaughter was unable to reach her by telephone at 6:00 a.m. The
victim’s employer and his wife, the victim’s granddaughter and the police went to the victim’s
apartment later in the morning of January 8 and discovered the victim’s body in the closet. The
victim’s granddaughter observed that the victim’s identification and other belongings were strewn
about the apartment. According to this witness, her grandmother always wore a small pouch around
her neck which contained her identification and money.

               Jamerson was detained overnight and questioned the following afternoon by two
detectives, Sergeants James Fitzpatrick and A. J. Christian. In pre-trial proceedings, Jamerson


                                                 -2-
challenged the admissibility of the statement he gave the officers, claiming the statement had not
been voluntarily given. In part, the defendant claimed he had been promised a reduced charge of
second degree murder in exchange for a confession and that the state had reneged on the deal after
he gave his statement. The trial court discredited the defendant’s evidence and denied the motion
to suppress.

                At trial, the defendant faced charges of first degree premeditated murder and felony
murder in the perpetration of robbery. The jury found the defendant guilty of premeditated murder
and did not report a verdict on felony murder. At the sentencing phase, the jury imposed a sentence
of life without parole. In imposing the sentence, the jury found the prior violent felony aggravator
based upon evidence of the defendant’s prior conviction of aggravated robbery. See Tenn. Code
Ann. § 39-13-204(i)(2) (Supp. 1999).

                Against this factual backdrop, the defendant appeals.

                                                   I
                First, Jamerson alleges that there is insufficient proof of premeditation to support a
conviction of first degree premeditated murder. When an accused challenges the sufficiency of the
evidence, an appellate court's standard of review is whether, after considering 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, 324, 99 S. Ct.
2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).
This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn.
Crim. App. 1990).

                 In determining the sufficiency of the evidence, this court should not reweigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);
Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford
the State of Tennessee the strongest legitimate view of the evidence contained in the record as well
as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571
S.W.2d at 835.

                 Jamerson was convicted of first degree murder, which is defined in pertinent part as
"[a] premeditated and intentional killing of another . . . ." Tenn. Code Ann. § 39-13-202(a)(1)
(1997). The first degree murder statute defines premeditation as an action 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. The mental state of the accused at the time the accused allegedly


                                                   -3-
decided to kill must be carefully considered in order to determine whether the accused was
sufficiently free from excitement or passion as to be capable of premeditation.” Tenn. Code Ann.
§ 39-13-202(d) (1997).

                 In Tennessee, a homicide, once established, is presumed to be second degree murder.
See, e.g., State v. West, 844 S.W.2d 144, 147 (Tenn. 1997); State v. Brown, 836 S.W.2d 530, 543
(Tenn. 1992). The state bears the burden of establishing premeditation in order to elevate the crime
to first degree murder. See, e.g., West, 844 S.W.2d at 147; Brown, 836 S.W.2d at 543. The
existence of premeditation is a question of fact for the jury. See, e.g., State v. Dennis Wade Suttles,
No. E1998-00088-SC-DDT-CD, slip op. at 8, — S.W.3d —, — (Tenn. June 26, 2000); State v.
Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The existence of premeditation may be inferred from the
circumstances surrounding the crime. See, e.g., State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998),
cert. denied, --- U.S. ---, 119 S. Ct. 2025 (1999). Facts which may support a finding of premeditation
include “the use of a 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.” Dennis
Wade Suttles, slip op. at 8, — S.W.3d at — (citations omitted). Multiple wounds alone may not
support a finding of premeditation, but the existence of multiple wounds may be considered in
conjunction with other evidence in assessing whether premeditation exists. Brown, 836 S.W.2d at
542.

                In the present case, a reasonable jury could view these facts in the light most
favorable to the state and conclude that the killing was premeditated. Jamerson was laboring under
a drug addiction and had used crack cocaine and alcohol on the day of the crime. He made two
telephone calls to relatives in unsuccessful attempts to borrow money. These calls were made
around 9:00 p.m. and 11:00 to 11:30 p.m. Around 10:45 p.m., the defendant arrived at the home
where he lived as a roomer with the victim and asked her for some money. The victim responded
that she had no money, and the defendant thought she was lying. After the victim retired to her
bedroom for the evening, the defendant procured a weapon by going into the kitchen and retrieving
a bottle of wine. Jamerson went into the victim’s bedroom around midnight and repeatedly struck
the unarmed victim in the head with the bottle of wine as she lay resting in her bed. He had time
during the interval between his request for money from the victim and the crime to premeditate the
murder. Although the defendant claims that he was high on crack cocaine when he committed the
crime and that he panicked and fled the apartment, the undisputed evidence is that he had the
presence of mind to change his clothes, wash the victim’s blood off his hands and the bottle of wine
with which he struck the fatal blows, move the victim’s body to a closet and cover it with pillows,
take a bank containing the victim’s spare change and several large household items with him when
he left the apartment, and dispose of the wine bottle and his clothing in another location. There is
also evidence that he went through the money pouch the victim kept on her person, scattering its
contents throughout the apartment. By his own admission, he killed the victim around midnight and
did not depart the victim’s home until an hour to an hour and a half later. Viewed in its totality, this
evidence sufficiently supports the jury’s finding of a premeditated killing. See generally State v.
Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998) (use of deadly weapon on unarmed victim), cert. denied,


                                                  -4-
119 U.S. 1359,119 S. Ct. 1359 (1999); Brown, 836 S.W.2d at 542 (repeated shots or blows
considered along with other circumstances in assessing the existence of premeditation); State v.
Andrew Lee Moats, Jr., No. 03C01-9805-CR-00184, slip op. at 10 (Tenn. Crim. App., Knoxville,
Aug. 10, 1999) (defendant had time to premeditate murder where he placed shotgun across his lap,
shined vehicle lights on victim for several seconds, drove forward to victim’s vehicle and shot
victim), perm. app. denied (Tenn. 2000); State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App.
1992) (attempt to shoot victim again after he had been felled and rendered helpless).

                                                II
                Jamerson’s next contention is that the trial court erred in denying his motion to
suppress his statement. He claims that the statement, in which he confessed to the killing of Ernest
Goodwin, was obtained in violation of his constitutional rights. Therefore, he posits, it was
improperly admitted as evidence against him.

                At an evidentiary hearing, the state has the burden of demonstrating by a
preponderance of the evidence that the defendant's 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 as the trier of fact. Odom, 928 S.W.2d at 23. 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.

               In the present case, Jamerson was picked up for questioning on January 9, 1998
around 7:20 p.m. He testified at the suppression hearing that prior to his arrest, he had smoked $50
to $100 worth of crack cocaine and had consumed approximately half of a pint of whiskey and a case
of beer. He was detained overnight, and on January 10 at approximately 2:15 p.m., he was
interviewed by Sergeants James Fitzpatrick and A. J. Christian. Prior to the interview, the defendant
was allowed to use the restroom and was given a hamburger to eat. According to the state’s
evidence, Jamerson was advised of his rights before the interview commenced. At first, Jamerson
claimed he had gone to the victim’s home and smelled an odor. Upon investigation, he discovered
her body. The interviewing officers challenged the defendant’s claim by pointing out contrary
evidence, and around 6:15 p.m., Jamerson finally admitted that he had killed the victim with a bottle
of wine. After the defendant related what had happened, the investigating officers called a break to


                                                -5-
order dinner. Once the food arrived, the defendant composed himself and related the details of the
crime. The interview ended around 7:30 p.m. At approximately 8:45 p.m., a typewritten statement
was taken. The defendant was again advised of his rights. The defendant signed the statement at
10:49 p.m.

                Sergeant Fitzpatrick testified that the defendant was promised nothing in exchange
for his statement, nor was he threatened or coerced. Likewise, Fitzpatrick testified first that he did
not recall the defendant asking to make a telephone call, and later he testified that the defendant
made no such request. Fitzpatrick was acquainted with the defendant, and he did not think the
defendant was under the influence of alcohol or drugs. Sergeant Fitzpatrick acknowledged that the
officers may have discussed with the defendant the three possible sentences of life, life without
parole, and the death penalty for a conviction of first degree murder. Fitzpatrick testified that he did
not tell the defendant that he would be at the trial to see that the defendant got the death penalty if
the defendant did not make a statement at that time, and Fitzpatrick did not recall Sergeant Christian
making such a statement. According to Fitzpatrick, the charge on the arrest ticket was changed from
first degree murder to second degree murder after the defendant made his statement. Fitzpatrick
claimed he talked to a member of the district attorney’s staff, and the change was made because the
staff member told him that the state would be unable to make a case for first degree murder based
upon the facts as related in the defendant’s statement but that a charge of second degree murder was
appropriate.

               The defendant testified at the suppression hearing and controverted much of the
state’s evidence. Jamerson said that Officer Fitzpatrick began questioning him around noon or 12:30
p.m. He claimed he was still under the influence of alcohol and drugs that he consumed prior to
being picked up the previous evening and that he had not slept. Jamerson testified that he was not
advised of his rights prior to making the oral or typewritten statements and that he only saw the
written advice of rights form after he had completed the typewritten statement. He claimed that he
asked to make a phone call to an attorney, but he was not allowed to use the phone. Jamerson said
that Sergeant Fitzpatrick claimed he could guarantee Jamerson a charge of second degree murder
with Range I sentencing if he would make a statement. It was only after this alleged promise was
made that Jamerson agreed to cooperate by making a statement.

                 In resolving the conflicting evidence, the trial court explicitly accredited the testimony
of Sergeant Fitzpatrick and discredited the defendant’s testimony. After making thorough factual
findings regarding the credibility issues, the trial court denied Jamerson’s motion to suppress. We
are bound by the trial court’s findings unless the evidence of record preponderates against them. In
this case, the evidence supports the findings, and the findings themselves support the court’s ruling.
As such, we must conclude that the trial court properly ruled that the defendant’s statement was
admissible.




                                                   -6-
                                                  III
                Finally, Jamerson claims that his constitutional right to confront witnesses against
him was violated when the trial court limited the scope of his cross-examination of Sergeant James
Fitzpatrick. He claims that the court should have allowed him to explore an alleged agreement
between the interrogating officers and himself under which he would give a full confession in
exchange for an amendment of the charge from first degree murder to second degree murder. The
defendant claims that he sought to cross-examine Sergeant Fitzpatrick about his testimony that the
defendant was not threatened, coerced or pressured to confess in order to challenge “both
Fitzpatrick’s credibility as well as the validity of [his] confession.” We agree that the trial court
should have allowed the defendant to explore the circumstances surrounding the confession;
however, we conclude that the error was harmless beyond a reasonable doubt.

                 The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant
the right to cross-examine witnesses against him. See, e.g., U.S. Const. amend. VI; Davis v. Alaska,
415 U.S. 308, 94 S. Ct. 1105 (1974). This interest is likewise protected by the Tennessee
Constitution. See Tenn. Const. art. I, § 9. The rights of confrontation and cross-examination are
essential to a fair trial. See, e.g., Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065 (1965).

                Additionally, evidence of the circumstances surrounding a confession are admissible
to assist the jury in determining whether the defendant made the confession and whether it is
truthful.2 State v. Pursley, 550 S.W.2d 949, 950 (Tenn. 1977) (citing Wynn v. State, 181 Tenn. 325,
329, 181 S.W.2d 332, 333 (1944)); see also Crane v. Kentucky, 476 U.S. 683, 688, 106 S. Ct. 2142,
2145 (1986).
                 In the present case, the trial court ruled that the defendant could not cross-examine
Sergeant Fitzpatrick about the alleged second degree murder deal made in exchange for the
defendant’s confession. The defendant made an offer of proof in which Sergeant Fitzpatrick
acknowledged that he changed the charge on the defendant’s arrest ticket from first degree murder
to second degree murder. No further evidence was adduced during this proffer.

                However, detailed information about the alleged agreement was presented during the
pre-trial hearing on the motion to suppress. The defendant engaged in lengthy cross-examination
of Sergeant Fitzpatrick during which the officer testified that he changed the arrest ticket after a
representative of the district attorney’s office advised him that the state would be unable to prove
first degree murder based upon the facts of the case. Sergeant Fitzpatrick denied that there had been
any agreement to reduce the charge in exchange for the defendant’s confession. On the other hand
the defendant testified that Sergeant Fitzpatrick said he could guarantee a Range I, unenhanced
sentence for a conviction of second degree murder in exchange for a confession. According to
Jamerson, Fitzpatrick said he knew the district attorney personally, and Fitzpatrick begged Jamerson



         2
           Pursley mandates that the trial court sh all determine as a prelimina ry matter whether the confession was
voluntary. Pursley, 550 S.W .2d at 950 . If the confession is admitted, then the jury must dete rmine the we ight, if any,
to be afford ed it. Id.

                                                           -7-
to trust him. Jamerson claimed that it was only after he was comfortable that the deal was in place
that he agreed to make an inculpatory statement.

                We believe that the existence of a change-in-charge agreement in exchange for a
confession is a “circumstance surrounding the confession” that would be admissible under Pursley
and Crane to assist the jury in determining whether the defendant made the confession and whether
it was truthful. The method by which the defendant sought to put this information before the jury
was cross-examination; therefore, the defendant’s right of confrontation was implicated. The
information the defendant sought to adduce on cross-examination was relevant and admissible to an
issue that was within the province of the jury. By limiting cross-examination, the trial court limited
Jamerson’s opportunity to present a defense. The limitation on cross-examination was error under
the Confrontation Clause.

                 The question which remains is the effect of the error. In State v. Howell, 868 S.W.2d
238, 252-53 (Tenn. 1993), our supreme court recognized that Confrontation Clause violations are
subject to harmless error analysis. In assessing the extent of any harm, the proper inquiry for the
appellate court is “whether, assuming that the damaging potential of the cross-examination were
fully realized, the error was nonetheless harmless beyond a reasonable doubt.” Id. at 253.

               As indicated by Sergeant Fitzpatrick’s testimony at the suppression hearing, if the trial
court had allowed examination of him about the alleged second degree murder deal, the officer
would have denied that any such agreement existed. At trial, the defendant made no proffer of any
affirmative evidence, such as his own testimony, to the contrary.3 In the absence of any independent,
affirmative proof, we fail to see how Sergeant Fitzpatrick’s denial of the alleged agreement would
have served to prove that such an agreement existed. Thus, we are confident that the error in limiting
cross-examination was harmless beyond a reasonable doubt.


                                                        IV

                  In conclusion, we find no reversible error and affirm the judgment of the trial court.


                                                      ___________________________________
                                                      James Curwood Witt, Jr., Judge




        3
            In fact, voir dire was conducted of Jamerson regarding waiver of his right to testify. He stated
une quivo cally that he did not desire to testify because the trial court had ruled that he would be subjec t to
impeachment with h is prio r con viction of ag grav ated robb ery. H e said noth ing th at wo uld ind icate that h is
decision to testify would have been different had the trial court not limited the cross-examination of Sergeant
Fitzpatrick.

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