          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON           FILED
                              JULY 1998 SESSION          August 20, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,                    )
                                       )    NO. 02C01-9801-CC-00033
      Appellant,                       )
                                       )    MADISON COUNTY
VS.                                    )
                                       )    HON. WHIT LAFON,
TERRY DON RHEA,                        )    JUDGE
                                       )
      Appellee.                        )    (Motion to Suppress)



FOR THE APPELLANT:                          FOR THE APPELLEE:

JOHN KNOX WALKUP                            CLIFFORD M. COLE
Attorney General and Reporter               1355 Lynnfield Road, Suite 101
                                            Memphis, TN 38119
ELIZABETH T. RYAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493

JAMES G. (JERRY) WOODALL
District Attorney General

JAMES W. THOMPSON
Assistant District Attorney General
225 Martin Luther King Drive
P.O. Box 2825
Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The State of Tennessee brings this interlocutory appeal pursuant to Tenn.

R. App. P. 9 and challenges the Madison County Circuit Court’s decision to

suppress Terry Don Rhea’s (defendant’s) statement to law enforcement authorities.

The trial court found that defendant was subjected to custodial interrogation without

having received constitutionally mandated Miranda warnings and, accordingly,

suppressed his statement. On appeal, the state contends that the trial court erred

in suppressing defendant’s statement because he was not in custody when he gave

his statement to the police. We affirm the judgment of the trial court.



                                           I



       The proof at the hearing on the motion to suppress showed that on February

5, 1997, Sergeant Jeff Fitzgerald with the Madison County Sheriff’s Department

took a report from the victim of an alleged rape. The victim named defendant as the

perpetrator of the rape. The next day, February 6, Sgt. Fitzgerald attempted to

contact defendant by telephoning him and leaving a message on his answering

machine. Defendant subsequently returned the call, and Fitzgerald informed

defendant of the allegations against him. Defendant responded that he was familiar

with the allegations and agreed to meet with Fitzgerald at his office.

       At this point, the testimony becomes conflicting. Fitzgerald testified that

defendant arrived at his office at approximately 1:20 p.m. accompanied by two

friends. He informed defendant that he was not under arrest, did not have to give

a statement and was free to leave at any time. Defendant gave an initial statement

that denied any criminal wrongdoing.           In a subsequent statement, defendant

implicated himself in the offense. Fitzgerald stated the defendant then left the office

with his friends at approximately 4:00 p.m.

       Fitzgerald testified that defendant came to the police station voluntarily;

however, he “probably [would] have gone looking for him” if defendant had not



                                          2
returned his phone call. He stated that he repeatedly told the defendant that he was

free to leave at any time, but defendant remained in his office voluntarily. He never

informed defendant of his Miranda rights. Fitzgerald testified that although he had

probable cause to arrest defendant prior to his giving a statement, he did not arrest

defendant because he was not certain whether the victim wanted to prosecute.

       Defendant also testified at the hearing. His testimony differed in many

respects to the testimony of Fitzgerald. In February 1996, defendant was eighteen

(18) years old, a student at Lambuth University and had a 1.85 grade point average.

He spoke with Sgt. Fitzgerald on the telephone and agreed to meet with him at his

office. He arrived at the station at approximately 12:30 p.m. with two friends.

Fitzgerald informed him when he arrived that if he had not come to the station

voluntarily, Fitzgerald would have “picked [him] up the next day.” Defendant

testified that while the secretary was typing his first statement, Sgt. Fitzgerald’s

attitude began to change. Fitzgerald told him that he knew of a doctor that would

be willing to testify against defendant in court. Defendant noticed a rape kit with his

name on it in the office during the interview. Fitzgerald told defendant that if he

confessed he would save himself, his family and the football team1 from

embarrassment. Fitzgerald informed defendant that the victim’s father had been

making threats against the “S.O.B” who committed the rape, but that if defendant

confessed, he (Fitzgerald) might convince the victim’s father not to prosecute. As

a result, defendant gave a second statement implicating himself. He left the police

station at approximately 5:30 p.m.

       Defendant testified that Fitzgerald only told him he was free to leave after he

signed the second statement. He was not allowed to leave Sgt. Fitzgerald’s office

without Fitzgerald being present.       When he asked for a drink of water, Sgt.

Fitzgerald accompanied him to the water fountain. He had never been arrested

before and did not feel free to leave at any time prior to his signing the second

statement.

       Robert Turner, a friend of defendant, also testified at the hearing. Turner


       1
           Defendant was a member of the Lambuth football team in February of 1996.

                                            3
stated that after he and defendant arrived at the police station, he stayed in the

waiting area while defendant spoke with Sgt. Fitzgerald. Turner testified that

approximately one hour after arriving, Sgt. Fitzgerald came into the waiting area and

stated that defendant was “in some trouble” and that it would be a while before he

was “done.” Fitzgerald told Turner that he could leave and pick defendant up when

he was “done talking with [defendant].”

       In its oral findings of fact, the trial court noted that defendant was eighteen

(18) years old, had a 1.85 grade point average and had no familiarity with the

criminal justice system. The trial court found that defendant was the “target” of the

investigation and reasonably believed that he was in custody at the time he was

questioned. Therefore, because Sgt. Fitzgerald did not inform defendant of his

Miranda rights, the trial court granted defendant’s motion to suppress his statement.

From this decision, the state brings this interlocutory appeal.



                                            II



       The state contends that the trial court erred in suppressing defendant’s

statement because defendant was not in custody when he gave his statement to

Sgt. Fitzgerald; thus, Sgt. Fitzgerald was not required to inform defendant of his

Miranda rights. The state further argues that the trial court erroneously considered

whether defendant was the “focus of the investigation” as a circumstance warranting

suppression of the statement.

                                           A.

       The findings of fact made by the trial court at the hearing on the motion are

binding upon this Court unless the evidence contained in the record preponderates

against these findings. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996); State

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson, 878 S.W.2d 530,

544 (Tenn. 1994). The trial court, as the trier of fact, is able to assess the credibility

of the witnesses, determine the weight and value to be afforded the evidence and

resolves any conflicts in the evidence. See State v. Odom, 928 S.W.2d at 23.



                                            4
However, this Court is not bound by the trial court’s conclusions of law. The

appellant has the burden of establishing that the evidence contained in the record

preponderates against the findings of fact made by the trial court. Braziel v. State,

529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

                                         B.

       In Miranda v. Arizona, the United States Supreme Court held that the

prosecution cannot admit a statement by the defendant stemming from “custodial

interrogation” unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination. 384 U.S. 436, 444, 86 S.Ct. 1602,

1612, 16 L.Ed.2d 694. The Court defined “custodial interrogation” as “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” Id.

       In State v. Anderson, 937 S.W.2d 851, 852 (Tenn. 1996), the Tennessee

Supreme Court held that in order to assess whether an individual is in “custody” for

the purposes of Miranda, a court must inquire whether “under the totality of the

circumstances, a reasonable person in the suspect's position would consider

himself or herself deprived of freedom of movement to a degree associated with a

formal arrest.” In so holding, the Court delineated several factors pertinent to that

determination, including:

       the time and location of the interrogation; the duration and character
       of the questioning; the officer's tone of voice and general demeanor;
       the suspect's method of transportation to the place of questioning; the
       number of police officers present; any limitation on movement or other
       form of restraint imposed on the suspect during the interrogation; any
       interactions between the officer and the suspect, including the words
       spoken by the officer to the suspect, and the suspect's verbal or
       nonverbal responses; the extent to which the suspect is confronted
       with the law enforcement officer's suspicions of guilt or evidence of
       guilt; and finally, the extent to which the suspect is made aware that
       he or she is free to refrain from answering questions or to end the
       interview at will.

Id. at 855. The determination of whether an individual is in custody is fact specific,

and the trial court should assess the applicability of the relevant factors in making

its findings. Id.

                                         C.

       Initially, we must agree with the state that the trial court erroneously

                                          5
considered the “focus of the investigation” test as a basis for suppressing

defendant’s statement. Whether the accused is the “focus” of the investigation is

not relevant to the inquiry. Anderson, 937 S.W.2d at 854; State v. Cooper, 912

S.W.2d 756, 766 (Tenn. Crim. App. 1995).

       However, upon our review of the trial court’s findings in conjunction with the

relevant factors enunciated in Anderson, we must conclude the trial court correctly

determined that, under the totality of the circumstances, a reasonable person in

defendant’s position would consider himself in custody. Although defendant agreed

to speak with Sgt. Fitzgerald, the interview took place at Fitzgerald’s office. The

interrogation lasted from three (3) to five (5) hours. Although only one officer

interviewed defendant, the defendant was not allowed to leave Sgt. Fitzgerald’s

office without an escort. In fact, Fitzgerald accompanied defendant to a water

fountain when he asked for a drink of water. The trial court found that Fitzgerald

told the defendant “that if he would give him a statement, that would probably keep

him out of trouble.” The trial court also found that Sgt. Fitzgerald persisted in

questioning defendant until defendant implicated himself in the offense.

       The state points to numerous instances where Sgt. Fitzgerald testified that

he informed defendant that he was free to leave at any time. However, defendant

denied that Fitzgerald told him this until after he signed the second, incriminating

statement. By its findings, the trial court implicitly accredited the testimony of the

defendant over that of Sgt. Fitzgerald. We are not free to ignore these factual

determinations. The trial court was in a much better position than this Court to

assess the credibility of the witnesses.

       The state has not proven that the evidence preponderates against the trial

court’s findings of fact; thus, this Court is bound by those findings. In applying these

findings to the Anderson criteria, we conclude that the trial court did not err in

granting defendant’s motion to suppress his statement to Sgt. Fitzgerald.



       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           6
                                 JOE G. RILEY, JUDGE

CONCUR:




CURWOOD WITT, JUDGE




ROBERT W. WEDEMEYER, SPECIAL JUDGE




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