         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 2, 2004

                    STATE OF TENNESSEE v. SEAN ANTHONY

                  Direct Appeal from the Criminal Court for Shelby County
                             No. 02-01482 Chris Craft, Judge



                  No. W2003-01440-CCA-R3-CD - Filed September 21, 2004


The Defendant, Sean Anthony, was tried and convicted of four counts of aggravated robbery. On
appeal he contends that: (1) the trial court improperly refused to accept his guilty plea; (2) the trial
court should have suppressed his statement to police; and (3) the evidence is insufficient to sustain
his convictions. Finding no error, we affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
DAVID G. HAYES, JJ., joined.

Ross A. Sampson, Memphis, Tennessee, for the appellant Sean Anthony.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; William L. Gibbons, District Attorney General; Glen Baity, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION
                                               I. Facts

       This case arises out of the Defendant’s convictions of the aggravated robbery of four separate
victims at the Big Star grocery store in Memphis, Tennessee on August 6, 2001.

                                      A. Guilty Plea Hearings

         Prior to trial for these crimes, on October 16 and 17 of 2002, the trial court held two separate
guilty plea hearings where the Defendant attempted to enter guilty pleas to four counts of robbery,
a lesser-included offense of the indicted charges in each count. At the first hearing, the State told
the trial court that the Defendant was indicted for four counts of aggravated robbery and that he

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would be pleading guilty to four counts of robbery. The prosecutor stated that the State was
recommending a sentence of six years. The State articulated the facts that it intended to prove if the
case were to go to trial, and the Defendant’s attorney agreed with those facts and asked the court to
accept the guilty plea. The trial court asked the State why it was reducing the crime from aggravated
robbery to robbery, and the State informed the court that it was given information that the Defendant
was “low functioning . . . [and] has a history of mental retardation . . . .” The Defendant’s attorney
informed the court that there was “no question” that the Defendant was competent to enter the guilty
plea.

        Upon the court’s questioning, the Defendant testified that he had reached the ninth grade in
school and that he has a problem reading. The trial court informed the Defendant of each of his
rights and asked the Defendant if he understood those rights and understood that, by entering a guilty
plea, he would waive those rights. The trial court told the Defendant that, were the Defendant
convicted of aggravated robbery, the court would “have to sentence you to somewhere between 8
and 30 years in prison with no possibility of probation.” The court also told the Defendant that
robbery carries a 3 to 15 year sentence. The Defendant told the court that he understood. The trial
court explained the elements of the offenses to the Defendant, and further explained that, should the
Defendant opt for a jury trial, the State would be required to prove the Defendant’s guilt of the
offenses beyond a reasonable doubt to a jury of the Defendant’s peers.

       The State then announced the agreement between the parties, stating that the Defendant
would plead guilty to robbery in count one, with the recommended six year sentence, and in counts
2, 3 and 4 he would plead guilty to robbery, with the recommended six year sentence, all to run
concurrently with each other and with count one. The following then occurred:

       THE COURT: . . . you’re pleading to four separate robbery convictions of four
       separate people. Getting six years on each one to be served at the same time and
       asking for probation. Is that your understanding of what we’re doing?
       THE DEFENDANT: No, Sir.
       THE COURT: It’s not?
       THE DEFENDANT: No, sir.
       THE COURT: What’s your understanding?
       THE DEFENDANT: That I do six years on probation and six months in Project Wit.
       THE COURT: No, sir. I may not give you any probation. You may go to prison
       today for six years. Then again I may give you complete probation and you don’t
       even have to go to Project Wit. That’s up to me. I have not decided yet what you’re
       going to be doing. So you’re pleading guilty to six years in prison on four separate
       robberies of four separate people. Do you understand that?
       THE DEFENDANT: No, not really.

The State then revoked the plea offer, and the trial court told the Defendant that he would not be
allowed to plead guilty. The following day the trial court held another guilty plea hearing where the
Defendant testified, and the Defendant’s attorney asked him if he understood what happened


                                                  2
yesterday, and the Defendant responded affirmatively. The Defendant’s attorney asked the
Defendant if the attorney had explained that there were four aggravated robbery charges and that the
Defendant was going to plead guilty to four robbery charges. The Defendant said that this had been
explained to him and that he misunderstood the judge the previous day and did not understand the
sentence that he would be serving. The Defendant then indicated that he would like to plead guilty.
The following then occurred:

       THE COURT: Well, let me ask you this just to clarify for the record . . . . You
       understand that if the State allowed you to enter this guilty plea today and we had our
       hearing, I could send you to prison for six years. In other words I don’t have to put
       you on probation. I could just sentence you to prison for six years. Do you
       understand that?
       THE DEFENDANT: Yes, sir.
       THE COURT: Knowing all that would you still want to enter the plea?
       THE DEFENDANT: No.

The trial court then found that the Defendant did not understand the plea and, for that reason, did not
accept the plea from the Defendant.

                        B. Hearing on Defendant’s Motion to Suppress

        On November 26, 2002, the trial court held a hearing on the Defendant’s motion to suppress
his statement to police. At the hearing, Ralph Peperone, an officer with the Memphis Police
Department testified that he interviewed the Defendant about his involvement in the robbery. The
officer said that he advised the Defendant of his rights prior to talking with him, and the Defendant
waived his rights. The officer said that the Defendant told him that he dropped out of school in the
ninth grade, and the officer opined that the Defendant was “a little slow.” The officer explained, “He
required thought, more thought in questions than many people. Just to take his time before he gave
us an answer.” The officer said that the Defendant gave he and another officer a statement that they
reduced to writing, read to the Defendant to insure accuracy, and the Defendant signed. Officer
Peperone testified that he did not threaten the Defendant or promise him leniency.

         On cross-examination, Officer Peperone said that he was not the arresting officer and that
the Defendant was brought to his office after receiving medical care. The officer said that he did not
make a notation on the advice of rights form that he read the form to the Defendant. The officer said
that he explained the Defendant’s rights to him prior to the Defendant signing the form. On re-direct
the officer testified that the last thing he told the Defendant was, “I will have Officer Dale Hensley,
3592, read the statement to you. If you find it to be true and correct as you have given I will ask you
to initial the bottom of each page and place your signature along with the date and time on the line
below. Do you understand?” The officer testified that the Defendant indicated that he understood.

         Timothy Cecil Lewis, a deputy clerk in the Shelby County Criminal Court clerk’s office,
testified that the Defendant had previously pled guilty to criminal attempt to commit aggravated


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burglary, simple possession of a controlled substance, and aggravated burglary. On cross-
examination, Lewis testified that he was not aware of the Defendant’s mental condition.

        The Defendant testified that he could not read the advice of rights form, but that he did
remember signing the form. He said that the form was never read to him, and Officer Peperone
handed it to him and told him to sign it. He testified that the officer then handed him more papers
to sign, and, after he signed the papers, the officer asked him if he could read or write. The
Defendant said that no one explained to him the right to remain silent or the right to have a lawyer
present and that he did not know whether he knew what those rights meant. The Defendant testified
that he spent time at a home that helps people with his disability and that he receives Social Security
Income checks for his disability. The Defendant said that he remembered attempting to enter a guilty
plea, but he got confused and was unable to enter the plea.

        On cross-examination, the Defendant said that the officers pushed a piece of paper in front
of him and told him to sign it. He testified that there were some pictures laying on the table and the
officers asked him if he knew the men in the pictures and the Defendant responded that he did. The
Defendant said that, when the officer read him his statement, they read it fast, and he could not
understand the statement. The Defendant conceded that he had been arrested a number of times for
different offenses. He said that he knew that he had a right not to talk to police and that he had a
right to an attorney. The Defendant said that he had given statements to police before about other
crimes that he had committed.

       Based upon this evidence the trial court denied the Defendant’s motion to suppress his
statement to police.

                                              C. Trial

        At the Defendant’s trial, in January of 2003, the following evidence was presented. Teresa
Regina Stegall testified that she was an employee of Big Star grocery store in Shelby County on
August 6, 2001. She said that, on that day, she was working as a cashier at a cash register when two
men came into the store. She said that one of the men, who had on a gray and red stripped shirt,
came to her register. She described the man as an African-American who wore a bandana covering
his face from his nose down and a hat. Stegall testified that the man had a gun that looked like a .25
caliber gun and looked like he was in his twenties. She said that the man pointed his gun at her face
and said “Open the cash register.” The man then took both the cash and the checks out of the cash
register, and then he robbed a customer and a second cashier.

         Stegall described the second intruder as having on a ski mask and dark colored clothing. She
said that the second intruder also had a gun and went to the customer service desk, which is about
fifteen to twenty feet from the cashiers, and pointed the gun at the office worker. Stegall stated that
the men were in the store for approximately twenty to thirty seconds and then ran out the front door.
She said that, after they ran out the door, she heard a “pop, pop” and saw a bullet hole at the bottom
of the door where they shot the glass. Stegall was unable to identify the Defendant as one of the


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intruders. On cross-examination, Stegall reiterated that she could not identify the Defendant and said
that she did not see a vehicle involved in this crime.

        Regina Coretta Davis testified that, on August 6, 2001, she was shopping at the Big Star
grocery store when two men came in and robbed the store. She said that she was at the cash register
preparing to pay for her purchase when one of the men, who had on a stripped shirt, came to the cash
register beside her. She explained that he got the money out of the register next to her first and then
got the money out of the register where she was. Davis stated that the man put a gun to her head,
told her, “Give me your money,” and then took money out of her hand and told her to open her purse.
She said that she threw her purse at him. Davis testified that the other man went to the back of the
store to the customer service desk. She said that, after she was robbed, the two men went out the
front door and one of them shot twice at the door. Davis was unable to identify the Defendant as the
man who robbed her.

        Antoinette Hubbard testified that she worked at Big Star grocery store as a cashier and was
working on August 6, 2001, when two men came in and robbed the store. She said that a man, who
was six feet tall, came to her register and took all of the money out of the register. She said that she
was scared and was unable to see the face of the person who robbed her. Hubbard was unable to
identify the Defendant as the man who robbed her. On cross-examination, Hubbard testified that
none of her personal possessions were taken during the robbery.

        Leslie Kay Ross testified that she was working at the customer service booth at Big Star
grocery store on August 6, 2001, when two men robbed the store. She said that the man robbing the
cash registers was wearing a striped shirt and a bandana. She described the man who robbed her as
approximately five feet nine inches tall, “not heavy set, but not skinny and he was a male black,”
who had a ski mask, so she could only see his eyes. Ross explained that the man who robbed her
said “open the drawer, B****,” while pointing a silver and black gun at her. Ross said that the man
who robbed her had on latex gloves, and she said that, after the men left, she heard two gun shots.
She said that she could not recognize the man who robbed her, but she did recognize a black hat and
some latex gloves that were shown to her after the robbery. On cross-examination, Ross said that
she could not be sure that the hat and gloves were those as those worn by the robber, only that they
looked similar.

        William N. Warren, Jr., testified that, on August 6, 2001, he briefly walked into Big Star
grocery store where he saw a man standing at the cash register with a gun. He described the man as
a “black person” who was wearing “a white tank top shirt . . ., black jogging pants and a bandana
around his face.” Warren stated that, when he saw the robbery in progress, he turned around and
went back out of the store. He explained that he ran around to the side of the store and hid, and then
he heard gunshots. Warren said that he got into his friend’s truck, and his friend drove him around
the back of the store where he saw two “black males running down the street.” He said that he
followed the two men on foot and noticed that they threw something in the bushes, then he saw the
police and they took over the chase. Warren identified a picture of the house near the bushes where
the robbers threw something, but was unable to identify the man that he saw robbing the store. On


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cross-examination, Warren again said that the robber he saw was wearing a white tank top and, when
shown the video tape of the robbery, he said that neither robber was wearing a tank top. He clarified
that, when the robber was arrested, he was wearing a tank top. Warren said that, as the men were
running, he could not see what was in their hands. Warren testified that he could not identify anyone
as the robber.

         Calvin E. Taylor, an officer with the Memphis Police Department, testified that he was called
to the scene of a robbery on August 6, 2001, at a Big Star grocery store. He said that, when he got
the call, he was approximately one minute away from the store and headed toward the store. On the
way to the store, the officer met two suspects that fit the robbers’ description, and he identified the
Defendant as one of those suspects. The officer said that he got out of the car and told the Defendant
to get down and get on the ground, which the Defendant refused to do, so the officer sprayed him
with pepper gas, handcuffed him, and placed him in the back of his police car. Officer Taylor
testified that, on the Defendant, he found $1,374.70 in cash and one check made out to Big Star in
the amount of $9.70. The officer said that, after he placed the Defendant in his car, he took him to
the scene of the robbery and then to receive medical attention for a dislocated shoulder.

         Joe Edward Stark, an officer with the Memphis Police Department, testified that he was
called to the crime scene at Big Star grocery store on August 6, 2001, to collect evidence. He said
that he found two spent .22 caliber casings just outside the front door of the store. The officer said
that, as part of the investigation, he went to a nearby house where, under a bush, he found two .22
caliber handguns and a “black skull cap” with the eyes cut out. Officer Stark described one of the
guns as a revolver that had a gray body and a white handle and the other gun as a black automatic
gun. The officer testified that, at another nearby house, he found a long sleeve striped shirt inside
a barbecue pit in the backyard. Officer Stark indicated that he also found multiple Big Star receipts
on the ground around the barbecue pit. The officer said that he found and took a pair of latex gloves
to be chemically processed for fingerprints. On cross-examination, the officer testified that he did
not see a check for $9.70 during his investigation.

        Ralph Peperone, a Sergeant with the Memphis Police Department, testified that he was
working in the robbery bureau on August 6, 2001, and was assigned to this case as the case
coordinator. The officer said that before he interviewed the Defendant, who was a suspect in this
case, he read him his Miranda rights, and the Defendant signed a form waiving those rights. Officer
Peperone explained that, on the form, the Defendant indicated that he was 22 years old, had last
attended ninth grade in school, and was not employed. The officer said that the Defendant seemed
to understand his rights, but he spoke a little slow and took more time understanding facts. The
officer said that, after the Defendant waived his rights, the officer took his statement and reduced
that statement to writing. Officer Peperone had Detective Dale Hensley read the statement to the
Defendant, and the Defendant signed the statement.

        The officer read the Defendant’s statement into evidence. In the Defendant’s statement, he
told police that he participated in a robbery of the Big Star grocery store that occurred around 5:30
p.m. on Monday, August 6, 2001. The Defendant said that he did not know the people that he


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robbed and that he was armed with a .22 pistol during the robbery that he bought “from somebody
off the street.” The Defendant said that he, his brother and a man named “Hop” participated in this
robbery. The Defendant said that, as a result of the robbery, the men got money. The Defendant
described the events of the crime by saying that the three men were riding in a borrowed blue Toyota
Camry when “Hop” got out and went to check the store. He said that “Hop” bought some milk and
then came back and told he and his brother that there were no security guards in the store. The
Defendant explained that he and his brother ran into the store and told them to open the cash register
and then took the money out of the registers. The Defendant said that his brother told him that
someone tried to grab him so he shot in the air. The Defendant told the police that he “ran until [he]
could run no more” because the police surrounded them. He said that, at the time of the robbery, he
was wearing black pants, a black shirt, and a black mask that he had cut two holes in, and his brother
was wearing blue jeans, a brown scarf, and a multi-colored shirt. The Defendant said that his brother
also was armed with a .22 pistol during the robbery.

        On cross-examination, Officer Peperone testified that when he first saw the Defendant the
evening of the robbery, at around 8:30 p.m., the Defendant’s arm was in a sling, and he had some
bandages on him. The officer said that the Defendant was not given any pain relievers prior to the
interview, and he was cooperative during the interview. The officer said that he first began speaking
with the Defendant at around 10:00 p.m. and again the officer said that the Defendant was a “little
slow.” The officer testified that Markel Adkins, who is also known as “Hop” or “Hopping Grass,”
had been implicated in this robbery.

         The Defendant called Lilly Murray, his mother, who testified that the Defendant receives
Social Security Income for mental retardation. She said that he has received this income since he
was about nine or ten and that, as a result of his retardation, he cannot read or write. Murray testified
that, also as a result of the retardation, the Defendant can be easily talked into things because he does
not understand. She said that the Defendant knows the difference between wright and wrong. On
cross-examination, Murray testified that the Defendant can write his name and can read a little bit,
but has problems with small words.

       Based upon this evidence, the jury found the Defendant guilty of four counts of aggravated
robbery.

                                             II. Analysis

        The Defendant appeals his conviction contending that: (1) the trial court improperly refused
to accept his guilty plea; (2) the trial court should have suppressed his statement to police; and (3)
the evidence is insufficient to sustain his convictions.

                                            A. Guilty Plea

        The Defendant contends that the trial court improperly denied him the right to enter pleas of
guilty to four counts of robbery, which were lesser-included offenses of the indicted charges. The


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Defendant asserts that he intended to enter his guilty pleas knowingly, intelligently, and voluntarily,
and that, due to his low-functioning mental ability, he did not properly answer the trial court’s
questions. The State counters that the trial court properly rejected the Defendant’s guilty pleas
because the Defendant did not understand the maximum penalties provided by law and it was unclear
whether the pleas were voluntary. When it rejected the Defendant’s guilty pleas, the trial court said:

       [L]et me just say this as the judge here this man does not understand this plea. He
       just doesn’t understand that. And for that reason I’m not going to take a plea from
       this man. I just can’t . . . do it. And I understand that [the Defendant’s attorney] was
       most patient yesterday. He spent hours with this young man. And either by design
       or by not having the intelligence to understand, with all due respect to him, he
       doesn’t – I have no confidence in this man’s ability to be honest with us about what
       he wants to do with this case. I just don’t. And I think that’s one of the reasons [the
       State’s attorney] doesn’t want to fool with it. So we just can’t take a plea because
       knowing he keeps saying yes, I’d like to. And if I asked him some more questions
       he’d say I think I’m going to get probation. And I think what he thinks is that he’s
       got a good chance at it and pretty much he thinks he’s probably been promised that
       he’d get probation. And I don’t want him to have that idea. Because he can’t be
       entering these pleas without any hopes. He can have a hope but he can’t have a
       pressure or a promise.

The trial court then told the Defendant that it would not accept his guilty plea, and the court noted
that the Defendant did not “seem at all upset about” the trial court’s ruling.

        The trial court is afforded discretion in the acceptance of a plea, and the judgment cannot be
set aside absent a plain abuse of authority. State v. Williams, 851 S.W.2d 828, 830 (Tenn. Crim.
App. 1992). To find that a trial court has abused its discretion in refusing to accept a plea of guilty,
it must appear that no substantial evidence supports the conclusion of the trial court. Goobsy v.
State, 917 S.W.2d 700, 705 (Tenn. Crim. App. 1995). Also, the trial court has the ultimate decision
to accept or reject a guilty plea within its sound discretion. Farmer v. State, 570 S.W.2d 359, 361
(Tenn. Crim. App. 1978). Tennessee Rule of Criminal Procedure 11 governs the acceptance and
rejection of guilty pleas. It states:

       Before accepting a plea of guilty . . . the court must address the defendant personally
       in open court and inform the defendant of, and determine that he or she understands,
       the following:
       (1) The nature of the charge to which the plea is offered, the mandatory minimum
       penalty provided by law, if any, and the maximum possible penalty provided by law
       ....

       The court shall not accept a plea of guilty . . . without first, by addressing the
       defendant personally in open court, determining that the plea is voluntary and not the
       result of force or threats or of promises apart from a plea agreement.


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Tenn. R. Crim. P. 11 (c)(1), (d). A trial court has discretion to determine whether the plea is
voluntary and whether the defendant is knowingly and understandingly waving his constitutional
rights. Tenn. R. Crim. P. 11(c), (d); Goobsy, 917 S.W.2d at 706.

         In the case under submission, the trial court complied with Tennessee Rule of Criminal
Procedure 11 when it rejected the Defendant’s plea of guilty. One valid reason to reject a guilty plea
is that the Defendant does not understand the maximum punishment and, therefore, the plea is not
knowingly and voluntarily entered. Tenn. R. Crim. P. (c)(1), (d). We conclude that the trial court
did not abuse its discretion when it determined that the Defendant could not knowingly and
voluntarily enter a guilty plea because, by design or because of lack of intelligence, he did not
understand the maximum punishment. The trial court explained the possible maximum punishment
to the Defendant and, thereafter, the Defendant said that he would not like to enter a plea of guilty.
Accordingly, we hold that this issue is without merit.

                                       B. Motion to Suppress

         The Defendant contends that the statement that he gave to police should have been
suppressed because he did not “fully understand his Miranda rights due to his low mental capacity.”
The standard of review for a trial court’s findings of fact and conclusions of law in a suppression
hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). When the trial court makes
findings of fact at the conclusion of a suppression hearing, the facts are accorded the weight of a jury
verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court’s findings of fact
are “presumptively correct on appeal” and are binding upon this Court unless the evidence in the
record preponderates against them. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002); State v.
Henning, 975 S.W.2d 290, 299 (Tenn. 1998); Odom, 928 S.W.2d at 23. The prevailing party in the
trial court is “entitled to the strongest legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence.”
Odom, 928 S.W.2d at 23. Furthermore, “[q]uestions of credibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact.” Id. However, this Court reviews the trial court’s application of the law
to the facts de novo, without any deference to the determinations of the trial court. State v. Walton,
41 S.W.3d 75, 81 (Tenn. 2001).

        The Fifth Amendment to the United States Constitution provides, in pertinent part, that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. Similarly, Article I, Section 9 of the Tennessee Constitution states that “in all criminal
prosecutions, the accused . . . shall not be compelled to give evidence against himself.” In Miranda
v. Arizona, the United States Supreme Court held that pursuant to the Fifth and Fourteenth
Amendments’ prohibition against compelled self-incrimination, police officers must advise a
defendant of his or her right to remain silent and of his or her right to counsel before they may
initiate custodial interrogation. 384 U.S. 436, 479 (1966). If these warnings are not given,
statements elicited from the individual may not be admitted for certain purposes in a criminal trial.
Stansbury v. California, 511 U.S. 318, 322 (1994).


                                                   9
       A criminal defendant may waive his Miranda rights, but such a waiver must be made
“voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. The waiver must be “made
with full awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it.” State v. Blackstock, 19 S.W.3d 200, 208 (citing State v. Stephenson, 878
S.W.2d 530, 544-45 (Tenn. 1994)). The State has the burden of proving the waiver by a
preponderance of the evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). In determining
whether a defendant has validly waived his Miranda rights, courts must look to the totality of the
circumstances. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn.1992). The totality of the
circumstances in a case such as this one must reveal “an uncoerced choice and the required level of
comprehension before a court can properly conclude that Miranda rights have been waived.”
Blackstock, 19 S.W.3d at 208.

       The Tennessee Supreme Court addressed the issue of the voluntariness of confessions of
people suffering from low mental capacity in Blackstock, stating:

       The effect of an accused’s mental deficiencies or retardation on the validity of his
       decision to waive Miranda rights has been considered in numerous cases. Charles
       C. Marvel, Annotation, Mental Subnormality of Accused as Affecting Voluntariness
       or Admissibility of Confession, 8 A.L.R.4th 16 (1981 & Supp. 1999). Mentally
       retarded individuals present additional challenges for the courts because they may be
       less likely to understand the implications of a waiver. United States v. Murgas, 967
       F. Supp. 695, 706 (N.D.N.Y. 1997). As one commentator has suggested, the
       mentally retarded are “less likely to understand their Miranda rights and the
       consequences of waiving them, giving rise to concerns about the knowing
       intelligence of their waivers.” Paul T. Hourihan, Earl Washington’s Confession:
       Mental Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1492 (1995).

       Although there is likely to be a level of deficiency so great that it renders a defendant
       unable to make a knowing and intelligent waiver, nearly every court to consider the
       issue has held that mental impairments or mental retardation are factors that must be
       considered along with the totality of the circumstances. As one court has said, “no
       single factor, such as IQ, is necessarily determinative in deciding whether a person
       was capable of knowingly and intelligently waiving, and do [sic] waive, the
       constitutional rights embraced in the Miranda rubric.” Fairchild v. Lockhart, 744 F.
       Supp. 1429, 1453 (E.D. Ark. 1989). Among the circumstances courts have
       considered are the defendant’s age, background, level of functioning, reading and
       writing skills, prior experience with the criminal justice system, demeanor,
       responsiveness to questioning, possible malingering, and the manner, detail, and
       language in which the Miranda rights are explained. As a result, courts tend to reach
       results that are somewhat fact-specific.

Blackstock, 19 S.W.3d at 208.



                                                  10
When the trial court denied the Defendant’s motion to suppress it stated:

Well, looking at the proof here and just for reasons for my finding I find that [the
Defendant’s] rights were read to him before he signed the waiver. That he
understood his rights. He understood that he had a right to a lawyer and if he
couldn’t afford a lawyer one would be provided to him free of charge. As far as
credibility issues here I find that Sergeant Peperone is a very credible witness. [The
Defendant] on the other had has put me through a guilty plea where he has tried to
manipulate the system. I observed him during that guilty plea and found him to be
less than truthful. At some times he would understand things with clarity and at other
times he would appear not to understand something when it was much simpler than
what he did understand. And I think to a great extent [the Defendant] is malingering.
I’m also taking into account the fact that he has had several other guilty pleas. He’s
given statements in other cases. He’s been advised of his rights in other cases before.
He is a street-wise young man. Looking at his psychological report – well, first, his
letter . . . that he’s low functioning and may require assistance with court proceedings
but was found to be competent. Looking at his psychiatric evaluation there’s nothing
in there that makes me seem to feel that he is impaired to the extent that he can’t
understand these simple rights. It reflects a life where [the Defendant] has been using
his apparent low functioning ability to his best advantage. When we tried to hear his
guilty plea he used that to the advantage of trying to get a lesser plea than aggravated
robbery, to simple robbery, and succeeded in getting that offer made but in his guilty
plea he chose to roll the dice and try to get complete probation out of the State until
the point at which the State and myself and also his attorney were a little exasperated
and the State revoked his offer when they were first trying to sever his case from the
co-defendant. I’m also looking at the content of this statement in which he describes
in great detail what happened. . . . [He had a] very clear understanding of what
happened. . . . [T]his man has a good thought process and a good memory at the time
that his rights were read to him. He wasn’t under the influence of anything or lack
of medication that made him extremely slow to where he couldn’t understand the
rights that were read to him by Sergeant Peperone. Also looking at his psychological
report after being interviewed the psychological report reflects on Page 2, “Presently
by his report he is out on bond after being arrested on 9-8-01 for aggravated robbery.
He used a loaded gun to attempt robbery at a grocery store. Today he says simply
that this was not a good idea. He does acknowledge someone could have gotten
killed.” Not to say that because he may have committed this crime or admitted to the
psychological person that therefore we should overlook his rights, on the other hand
it shows that the statement that he gave to the police was true and correct, was not the
product of any kind of duress or intimidation. I’m also considering his testimony
today where he said that he signed this statement and then it was read to him. That
makes absolutely no sense. If the police had obtained his signature why would they
then take the time, since they had what they wanted, to then read a statement to him?
It makes no sense that they would do that assuming the police were corrupt. It makes


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       no sense that they would do that in any case. I’m also considering his prior
       convictions for crimes involving dishonesty. So for all those reasons I make a
       finding in this case that [the Defendant] had a meaningful awareness of his Miranda
       rights and also he had an awareness of the consequences of waiving his rights,
       particularly his right to have an attorney. And he waived them freely and voluntarily.
       So I’m going to deny your motion [to suppress the Defendant’s statement to police]
       ....

         We conclude that, considering the totality of the circumstances, the evidence does not
preponderate against the trial court’s findings. The circumstances of this case are as follows. On
the one hand, the evidence demonstrated that the Defendant is low-functioning and receives Social
Security Income for his deficiency. The psychological report shows that, while the Defendant was
competent to stand trial, he may need assistance understanding court proceedings. Officer Peperone
testified that the Defendant seemed “slow” and required more thought on some of the questions than
most. The Defendant has previously been placed in mental health facilities for “behavioral
problems.” The Defendant testified that he did not understand that he had a right to a lawyer when
he gave his statement.

        On the other hand, the trial court found that Officer Peperone was a credible witness and that
the Defendant was not a credible witness, in part because he attempted to “manipulate the system”
during his guilty plea and because some of his testimony did not make sense to the court. The court
also found that the Defendant has given statements to police in other cases and has had an extensive
history with the criminal justice system. We cannot conclude that the evidence preponderates against
these findings by the trial court and, accordingly, we conclude that the trial court did not err when
it refused to suppress the Defendant’s statement to police. This issue is without merit.

                                 C. Sufficiency of the Evidence

        The Defendant contends that the evidence presented is insufficient to sustain his conviction
of four counts for aggravated robbery because no witness called by the State could positively identify
the Defendant in court as the man who committed the robbery. 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. Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 324 (1979); State v. Carter, 121 S.W.3d 579, 588 (Tenn. 2003); State v.
Smith, 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

         In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by
the trier of fact from the evidence. Buggs, 995 S.W.2d at 105; Liakas v. State, 199 Tenn. 298, 305,


                                                 12
286 S.W.2d 856, 859 (1956). 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. Liakas, 286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable inferences which
may be drawn from the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a
verdict of guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. Id.

        Aggravated robbery is defined by statute as, “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear,” which is “Accomplished with
a deadly weapon . . . .” Tenn. Code Ann. §§ 39-13-401, -402. We conclude that the evidence is
sufficient to sustain the Defendant’s conviction. While none of the State’s witnesses could positively
identify the Defendant, the strength of the State’s circumstantial evidence supports the conviction.
The evidence shows that Warren saw two men robbing the Big Star grocery store and, as they exited
the store, he chased them down the street and away from the store. As Warren chased these men,
he noticed them discard several items into some bushes. He continued his chase until the police
apprehended the men, one of whom was identified as the Defendant. Warren led officers to the
bushes, where Officer Peperone discovered two .22 caliber handguns, several checks bearing the
name Big Star and a shirt that matched the description of the shirt worn by one of the robbers.
Further, the Defendant confessed to this crime and gave specific details regarding the sequence of
events leading to the crime. Accordingly, considering this evidence in the light most favorable to
the State, we conclude that it is sufficient to sustain the Defendant’s conviction. This issue is
without merit.

                                           III. Conclusion

        In accordance with the foregoing reasoning and authorities, we conclude that there is no
reversible error in the judgments of the trial court and sufficient evidence exists to sustain the
Defendant’s convictions for aggravated robbery. Therefore, the judgments of the trial court are
AFFIRMED.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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