        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               January 10, 2012 Session

                STATE OF TENNESSEE v. BRADLEY SCOTT

             Direct Appeal from the Criminal Court for Shelby County
                  Nos. 09-05054, 10-05874    Chris Craft, Judge


                No. W2011-00677-CCA-R3-CD - Filed May 10, 2012


The defendant, Bradley Scott, was convicted by a Shelby County Criminal Court jury, under
two separate indictments, of first degree premeditated murder, first degree felony murder,
and two counts of aggravated rape and was sentenced to an effective term of life plus
twenty-two years in the Department of Correction. On appeal, he argues that: (1) the trial
court erred in denying his motions to suppress DNA evidence and the statements given by
him to the police; and (2) the evidence is insufficient to support his convictions. After
review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Stephen C. Bush, District Public Defender; Barry W. Kuhn (on appeal and at trial) and R.
Trent Hall (at trial), Assistant Public Defenders, for the appellant, Bradley Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alanda H. Dwyer and Abby Wallace,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       The victim was discovered nude and lying facedown in the hallway of her house on
December 22, 2008, with a coat hanger looped and twisted around her neck and attached to
a door knob. A rape kit established the defendant’s DNA in intact sperm found inside the
victim. The defendant’s DNA was also found on a broken piece of marble floor tile used
to beat the victim, as well as on a skull cap found in the hallway.

       The DNA from the crime scene was matched to the defendant via the combined
national DNA database, CODIS. The defendant first told police he did not know the victim,
but, after being confronted with the DNA evidence, told the police he had sex with the
victim but that the last time was in late October or early December. The defendant’s DNA
sample had been entered into the CODIS system when he was arrested the previous year in
Tennessee on a fugitive warrant due to his failure to appear in a Mississippi court on an
aggravated assault charge. The defendant was indicted on charges of first degree
premeditated murder, first degree felony murder, and two counts of aggravated rape.

                                  Suppression Hearing

        Prior to trial, the defendant filed a motion to suppress the DNA evidence and the
statements he gave to police. The defendant asserted that his original DNA sample was
unlawfully obtained and maintained and that the second DNA sample, given to police upon
his arrest, as well as his statements, were “fruit of the poisonous tree” because they arose
from the initial CODIS hit and were also involuntary due to sleep deprivation and hunger.

       Specifically regarding the DNA/CODIS issue, the defendant argued that: (1) his first
DNA sample was taken in contravention of Tennessee Code Annotated section 40-35-
321(e)(1) because he was not arrested for the commission of a violent felony, but instead
was arrested on a fugitive warrant based on a Mississippi charge of aggravated assault; (2)
the taking of his DNA constituted an unreasonable search and seizure because it was taken
in contravention of the statute; (3) his DNA was kept in the CODIS system in contravention
of Tennessee Code Annotated section 40-35-321(e)(2) after he was acquitted of the
Mississippi aggravated assault charge; and (4) the lack of a mechanism in Tennessee Code
Annotated section 40-35-321(e)(2) for keeping track of out-of-state charges violates the
equal protection clause of the constitution because it cannot be applied equally to persons
arrested in Tennessee and tried in Tennessee and those arrested in Tennessee but tried in
another state.

       The State responded that: (1) the defendant was arrested on a fugitive warrant arising
from a Mississippi aggravated assault charge and that aggravated assault is one of the violent
felonies which requires DNA sampling from arrestees; (2) the defendant had a prior
Mississippi felony conviction for unlawful possession or taking away of a motor vehicle and
that Tennessee Code Annotated section 40-35-321 requires that anyone convicted of a
felony after July 1, 1998 provide a DNA sample; (3) the State was not required to destroy
the DNA sample after the defendant’s acquittal on the Mississippi aggravated assault charge
because he was a convicted felon; and (4) even if a mistake was made in retaining the

                                             -2-
defendant’s DNA, Tennessee Code Annotated section 38-6-113(c) provides that any mistake
in obtaining a DNA sample did not invalidate a subsequent conviction.

       At the suppression hearing, Sergeant William Merritt with the Memphis Police
Department testified that he came into contact with the defendant on March 20, 2009, after
the defendant was taken into custody and Sergeant Merritt was asked to obtain a saliva
sample from him for DNA testing. The defendant, although informing Sergeant Merritt he
was aware he was in the homicide office, asked why he had been arrested. Sergeant Merritt
told the defendant that he did not know much about the case and had merely been asked to
obtain a DNA sample from the defendant. The defendant signed a consent form and gave
a sample. He never expressed any reluctance to give a sample and was completely
cooperative.

      On cross-examination, Sergeant Merritt testified that the defendant was arrested
around 2:00 p.m. and it was around 3:15 p.m. when he took the sample from the defendant.
He did not know how long it had been since the defendant had last slept or had anything to
eat. The defendant did not appear to be under the influence of drugs.

       Lieutenant Bart Ragland with the Memphis Police Department testified that he took
a statement from the defendant the next day, March 21. The defendant was brought to the
interview room from his jail cell and informed of the investigation into the victim’s murder.
The defendant agreed to talk to the officers and signed an advice of rights form at 3:22 p.m.
The defendant never indicated that he did not understand what he was doing,
“communicated fine” with the officers, and never indicated that he did not want to talk to
them. The defendant gave a statement to the officers, which he started at 5:04 p.m. and
signed at 5:21 p.m., denying any sexual relations with the victim or any involvement in the
homicide. The defendant told the officers that “his only knowledge of it was from his
mother-in-law who lived a few houses down from the victim.”

       Lieutenant Ragland testified that they took a break, during which the defendant was
given a candy bar and allowed to use the restroom, then, around 8:00 p.m., the defendant
was confronted with the fact his DNA matched evidence at the scene. The defendant then
admitted to having sex with the victim in late October or early December and that he had not
told them earlier because he did not want his wife to find out. The defendant denied any
recent sexual activity, despite being told that his intact sperm was found in the victim. The
defendant expressed no reluctance in giving a statement to the officers, but only that he did
not want his second statement reduced to writing because he was worried about his wife
finding out. Therefore, Lieutenant Ragland memorialized in his supplement what the
defendant had told them. The defendant also never indicated that he was hungry or sleep-
deprived.

                                             -3-
       The twenty-seven-year-old defendant testified that he had a sixth grade education
because he dropped out in the seventh grade after failing that grade twice. He
acknowledged that he had a January 26, 2001 conviction in Mississippi for unlawful
possession of a motor vehicle but said that he was not ordered by the Mississippi court to
give a DNA sample. The defendant stated that, sometime in 2008, he was charged with
aggravated assault in Mississippi and, after he missed a court date, was arrested on a fugitive
warrant in Tennessee. He waived extradition and gave a DNA sample to the Tennessee
authorities, then he was extradited to Mississippi where he was eventually acquitted on the
aggravated assault charge.

       The defendant testified that he was arrested for the instant crime on March 20, 2009,
and he gave another buccal swab for DNA testing because the officers told him that they
would get a warrant if he did not comply and that would make him look guilty. The next
day, he gave two statements, one written and one oral, to the officers. He acknowledged that
he signed a waiver of rights but asserted that he was sleep-deprived due to his cocaine
addiction and had not had anything to eat since the day before the arrest. He said he was
arrested on a Friday and was not taken before a magistrate until Monday.

       On cross-examination, the defendant testified that he went to court “once or twice”
on his aggravated assault charge in Mississippi before coming to Memphis and being
arrested on the fugitive warrant.

        The trial court made both oral and written findings in denying the defendant’s claims.
The court found that: (1) the first DNA sample was properly taken because the defendant’s
underlying charge was aggravated assault, which is one of the enumerated felonies in
Tennessee Code Annotated section 40-35-321(e)(1) and (e)(3) requiring DNA sampling
upon arrest; (2) the defendant’s DNA sample did not have to be destroyed after his acquittal
on the aggravated assault charge per Tennessee Code Annotated section 40-35-321(e)(2)
because he had a prior felony conviction; (3) pursuant to the holdings in State v. Cannon,
254 S.W.3d 287 (Tenn. 2008) and State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006),
DNA collection is constitutional when reasonable under all of the circumstances; (4) the
DNA sample was collected constitutionally and neither Mississippi nor Tennessee was under
a duty to destroy it, nor was Mississippi under a duty to tell Tennessee to destroy it; (5) even
if Mississippi had a duty to notify Tennessee of the acquittal or Tennessee had a duty to
monitor the defendant’s Mississippi case, it was reasonable for the authorities to preserve
the DNA sample due to the defendant’s being a convicted felon; (6) the defendant, at most,
suffered a statutory violation, and Tennessee Code Annotated section 38-6-113(c)(1)
provided that any mistakes made in taking or retaining DNA samples did not invalidate a
conviction. The court also accredited the testimony of the police officers that the
defendant’s statements were freely and voluntarily given and that the defendant freely and

                                              -4-
voluntarily consented to have his second DNA sample taken.

                                           Trial

                                       State’s Proof

       The victim’s sister identified a photograph of the victim for the record and said that
the victim’s son was ten months old when the victim was killed.

        The victim’s landlord testified that around 10:00 a.m. on December 22, 2008, he went
to the victim’s house to make sure the heat was working. He saw her car in the driveway
and noticed that the front door was ajar about ten inches. He rang the doorbell and, when
no one came to the door, he went inside. Once inside, he noticed that the rear door that
opened into the kitchen was ajar about ten inches as well. He found the victim’s naked body
in the hallway with a wire around her neck that was attached to a door knob. He also found
the victim’s son in the crib in his bedroom at the end of the hall and noticed that the cold
water tap in the bathroom was not entirely turned off.

        On cross-examination, he testified that there were no signs of forced entry on either
of the ajar doors. On redirect, he testified that he did not recall seeing that the floor tile
between the hallway and the bathroom was broken because he was very upset, but he said
that the bathroom tile had recently been redone and thus any broken tile would had to have
happened very recently.

        Officer Robert Whipple with the Memphis Police Department testified that he was
called to the scene around 11:00 or 11:30 a.m. on December 22, 2008, where he found the
victim facedown in the hallway hanging from a doorknob. He saw two pieces of floor tile
broken from the entry to the bathroom, with marble dust around the area indicating that the
tile had been broken recently. There was also a black cap in the hallway. Officer Whipple
retrieved the crying baby from his crib and noted that the door into the baby’s bedroom was
about three-quarters of the way open.

       Sergeant Roger Wheeler, of the Memphis Police Department Crime Scene Unit at the
time of the offenses, testified that he photographed, marked, and collected evidence, as well
as measured and diagramed the scene.

        Officer Charles Cathey with the Memphis Police Department Crime Scene Unit
testified that he worked the crime scene with Sergeant Wheeler and that they photographed
the scene and tagged evidence. He observed the victim lying in the hallway with a wire coat
hanger around her neck that was hanging from a door knob. The victim had bruises on her

                                             -5-
back and shoulder and feces on her buttocks. There appeared to be blood on the floor in
front of the victim’s hands, as well as a spot of blood on the wall in the hallway. Broken
bathroom tiles and a black knit cap were found in the hallway. There appeared to be blood
on the end of one of the broken tiles. Various pieces of clothing and shoes were found near
the victim or in the bathroom. A pink and gray jogging suit was in the bathroom, pulled
inside out.

        Officer James Max with the Memphis Police Department Homicide Bureau testified
that he was the case officer assigned to this case and, as such, controlled the crime scene.
A pair of jogging pants, with ladies’ panties inside them, was found under the victim’s feet
after her body was removed. A couple of empty baby bottles were found in the baby’s room,
which indicated that the baby had recently been fed. The victim’s bed appeared as though
only one person had slept in it. A metal utility shed in the backyard contained a clothes
dryer and, based on the folded and stacked laundry, it appeared that someone had been doing
laundry that day.

        Officer Max stated that he had Nahum Velasquez, a friend of the victim’s baby’s
father, submit a DNA sample because Velasquez was the only person other than the victim
whom the officers knew to have been in the victim’s house recently. Velasquez was
originally charged with the murder. However, the results of the rape kit performed on the
victim cleared Velasquez as a suspect but pointed to the defendant as the perpetrator. They
discovered that the defendant’s mother-in-law lived two houses away from the victim.

      The defendant’s mother-in-law testified that her daughter and the defendant lived
with her until December 13, 2008, when they moved out to live with the defendant’s
grandparents. The witness had met the victim and talked with her on one occasion about
two weeks before her murder. To her knowledge, the defendant had never met the victim.
However, the defendant often went for long walks, lasting “a few hours,” in the
neighborhood. The defendant was known to wear a skull cap.

      Sergeant William Merritt testified that the defendant consented to giving a buccal
swab sample for DNA testing on March 20, 2009.

       Officer Walter Davidson with the Memphis Police Department testified that he
accompanied Officer Max to the scene of the murder and typed a supplement describing the
scene. Officer Davidson obtained a DNA sample from Nahum Velasquez per Officer Max’s
request.

        Investigator Tim Helldorfer with the Shelby County District Attorney’s Office
testified that he went to the area of the victim’s house to take photographs in preparation for

                                              -6-
trial. The victim’s backyard was visible from that of the defendant’s mother-in-law.
Helldorfer determined that the latch on the victim’s wrought-iron front security door did not
close securely. The shed behind the victim’s home contained a washer, dryer, and
refrigerator. He tried to locate Nahum Velasquez to testify at trial but was unable to find
him. On cross-examination, Helldorfer acknowledged that the photographs he took of the
area were taken approximately twenty-one months after the murder.

       Lieutenant Ragland testified that he took a formal written statement and then an oral
statement from the defendant. In his first statement, the defendant said that he did not have
a relationship with the victim and had only waved at her in passing. After a break,
Lieutenant Ragland informed the defendant that his DNA had been found in the victim. The
defendant then changed his story and admitted that he had sex with the victim twice, once
in September and once in October or early December, but he did not have any contact with
her around the date of her murder. The defendant did not want to reduce his second
statement to writing.

       Dr. Lisa Funte, a medical examiner with the Shelby County Regional Forensic
Center, testified that she recovered the victim’s body from the crime scene and conducted
the autopsy of the victim. The victim had bruises and abrasions on her body, some of which
exhibited a pattern consistent in width with the broken piece of floor tile. The bruises were
consistent with having been inflicted at or near the time of death.

       Dr. Funte testified that drag marks on the floor indicated that the victim had been
dragged from the living room into the hallway and noted that there was a pair of sweatpants
stuck under the victim’s leg. There were smears of feces consistent with dragging as well.
Dr. Funte noted that the types of injuries sustained by the victim, as well as a fear response,
could have caused her to defecate. The fact that there was urine in the toilet and “nicely
folded” toilet paper nearby suggested to Dr. Funte that the victim possibly could have been
interrupted while using the bathroom.

        Dr. Funte testified that the victim was hung from a door knob with a wire coat hanger
that had been twisted several times around her neck. The autopsy revealed a combination
of ligature strangulation and blunt force trauma as the cause of death. Dr. Funte surmised
that “the blunt force trauma to the head, most likely came, prior to her being hanged from
the door knob. So the blunt force assault[] probably l[ed] to her altered mental status and
then she was hanged from the door knob.” The doctor noted that the victim’s skull showed
three distinct bruises, meaning she was hit at least three times, consistent with the size of the
bathroom floor tile. Dr. Funte also collected a rape kit on the victim, collecting swabs of the
victim’s vaginal, oral, and anal areas.


                                               -7-
       Special Agent Donna Nelson, a forensic scientist with the Tennessee Bureau of
Investigation (“TBI”) Serology and DNA Unit, testified that she analyzed evidence in the
victim’s case. Agent Nelson tested the evidence obtained in the rape kit and determined that
there were two DNA contributors, the victim and an unknown male contributor not matching
any of the possible suspects to date, to the samples taken from the victim’s vaginal and oral
areas. Agent Nelson noted that sperm degrade over time but that the samples in this case
contained both heads and tails. As such, she determined that, given the number of intact
sperm, the sperm had been deposited within twenty-four hours of her death. The sample of
the unknown contributor was entered into the CODIS database, and it returned with a match
to the defendant. Agent Nelson later tested a saliva standard received from the defendant
and confirmed that the defendant was the unknown male contributor to the DNA from the
vaginal swabs. She noted that sperm tended to break down faster in the oral cavities but that
the defendant could not be excluded as the contributor to the DNA from the oral swabs of
the victim.

       Agent Nelson testified that she tested the blood on the broken bathroom tile, and it
matched the victim’s DNA. The defendant’s DNA was found on the opposite end of the
tile. Agent Nelson also tested the skull cap found at the scene and determined that the
defendant’s DNA was on it as well.

                                    Defendant’s Proof

        The defendant first acknowledged having a car theft conviction in Mississippi and
having lied in both of his statements to the police. He admitted that he had sex with the
victim and explained that he had originally lied to Lieutenant Ragland because he did not
want his wife to find out he had slept with another woman. He said that he finally admitted
to the officers that he had sex with the victim but lied to them about the number of times he
had done so. He also admitted that, contrary to his statement to police, he last had sex with
the victim the morning of her death. However, he denied killing the victim. He admitted
that he told his grandmother, “I’m about to lose my life, over having sex with another
woman.”

        After the conclusion of the proof, the jury convicted the defendant, as charged, of
first degree premeditated murder, first degree felony murder, and two counts of aggravated
rape. The murder convictions and rape convictions, respectively, were merged, and the
defendant was sentenced to an effective term of life plus twenty-two years imprisonment.

                                       ANALYSIS

                                 I. Motions to Suppress

                                             -8-
       The defendant argues that the trial court erred in denying his motions to suppress the
DNA evidence and his statements to the police. When this court reviews a trial court’s
ruling on a motion to suppress evidence, “[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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). The party prevailing at the suppression hearing is afforded the “strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial
court in a suppression hearing are upheld unless the evidence preponderates against those
findings. See id. However, the application of the law to the facts found by the trial court
is a question of law and is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001); State v. Crutcher, 989 S .W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997).

                                   A. First DNA Sample

       The defendant first asserts that the trial court erred in denying his motion to suppress
the DNA evidence, arguing that his first DNA sample was illegally obtained when he was
arrested on a fugitive warrant from the State of Mississippi in violation of both the statute
as well as the constitution as an unreasonable search and seizure, his sample was illegally
maintained following his acquittal on the Mississippi charge, and the Tennessee DNA
collection statute violates the equal protection clause of the constitution.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These constitutional
provisions are designed to ‘safeguard the privacy and security of individuals against
arbitrary invasions of government officials.’” State v. Keith, 978 S.W.2d 861, 865 (Tenn.
1998) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). When it is
“reasonable under the circumstances,” warrantless DNA sampling of incarcerated prisoners,
though considered a search, is constitutional. See State v. Scarborough, 201 S.W.3d 607,
616-622 (Tenn. 2006).

      Two Tennessee statutes are relevant to the defendant’s claims. First, Tennessee Code
Annotated section 40-35-321 provides, in pertinent part:

              (a) As used in this section, unless the context otherwise requires, “DNA
       analysis” means the process through which deoxyribonucleic acid (DNA) in
       a human biological specimen is analyzed and compared with DNA from
       another biological specimen for identification purposes.

                                              -9-
       ....

        (d)(1) When a court sentences a person convicted of any felony offense
committed on or after July 1, 1998, or any misdemeanor offense, the
conviction for which requires the defendant to register as a sexual offender
pursuant to chapter 39, part 2 of this title, on or after July 1, 2007, it shall
order the person to provide a biological specimen for the purpose of DNA
analysis as defined in subsection (a). If the person is not incarcerated at the
time of sentencing, the order shall require the person to report to the county
or district health department, which shall gather the specimen. If the person
is incarcerated at the time of sentencing, the order shall require the chief
administrative officer of the institution of incarceration to designate a
qualified person to gather the specimen. The biological specimen shall be
forwarded by the approved agency or entity collecting the specimen to the
Tennessee bureau of investigation, which shall maintain it as provided in §
38-6-113. The court shall make the providing of the specimen a condition of
probation or community correction if either is granted.

       (2) If a person convicted of any felony offense or any applicable
misdemeanor offense and committed to the custody of the commissioner of
correction for a term of imprisonment or sentenced to a period of confinement
in a county jail or workhouse has not provided a biological specimen for the
purpose of DNA analysis as defined in subsection (a), the commissioner or the
chief administrative officer of a local jail may order the person to provide a
biological specimen for the purpose of DNA analysis before completion of the
person’s term of imprisonment. The biological specimen shall be forwarded
by the approved agency or entity collecting the specimen to the Tennessee
bureau of investigation, which shall maintain it as provided in § 38-6-113.

        (e)(1) When a person is arrested on or after January 1, 2008, for the
commission of a violent felony as defined in subdivision (e)(3), the person
shall have a biological specimen taken for the purpose of DNA analysis to
determine identification characteristics specific to the person as defined in
subsection (a). After a determination by a magistrate or a grand jury that
probable cause exists for the arrest, but prior to the person’s release from
custody, the arresting authority shall take the sample using a buccal swab
collection kit for DNA testing. The biological specimen shall be collected by
the arresting authority in accordance with the uniform procedures established
by the Tennessee bureau of investigation, pursuant to § 38-6-113 and shall be
forwarded by the arresting authority to the Tennessee bureau of investigation,

                                     -10-
       which shall maintain the sample as provided in § 38-6-113. The court or
       magistrate shall make the provision of a specimen a condition of the person’s
       release on bond or recognizance if bond or recognizance is granted.

              (2) The clerk of the court in which the charges against a person
       described in subdivision (e)(1) are disposed of shall notify the Tennessee
       bureau of investigation of final disposition of the criminal proceedings. If the
       charge for which the sample was taken is dismissed or the defendant is
       acquitted at trial, then the bureau shall destroy the sample and all records of
       the sample; provided, that there is no other pending qualifying warrant or
       capias for an arrest or felony conviction that would otherwise require that the
       sample remain in the data bank.

              (3) As used in this subsection (e), “violent felony” means:

              ....

              (C) Aggravated assault[.]

Id. § 40-35-321(a), (d), and (e).

      The other relevant statute is Tennessee Code Annotated section 38-6-113(c)(1),
which provides:

               (c)(1) The bureau shall adopt uniform procedures to maintain, preserve
       and analyze human biological specimens for DNA. The bureau shall establish
       a centralized system to cross-reference data obtained from DNA analysis. The
       centralized system shall contain convicted felon profiles, forensic unknown
       profiles, criminal suspect profiles, violent juvenile sexual offender profiles,
       and missing person profiles. The detention, arrest or conviction of a person
       based upon a databank match or database information is not invalidated, if it
       is later determined that the specimens or samples were obtained or placed in
       the database by mistake.

Id.

        As detailed above, the trial court denied the defendant’s motion to suppress, finding
that a sample of the defendant’s DNA was lawfully taken because the defendant was arrested
on a fugitive warrant in Tennessee based on a Mississippi aggravated assault charge, and
section 40-35-321(e)(1) and (3) authorized collection of a DNA sample when a person was

                                            -11-
arrested for aggravated assault. The defendant disputes the trial court’s finding on two
fronts: he was actually arrested on a fugitive warrant and not for a violent offense, and
there was no probable cause finding as required by section 40-35-321(e)(1). The defendant
asserts that, in addition to a statutory violation, these two deficiencies show that his DNA
sample was taken in violation of his right to be free of unreasonable searches and seizures.

       After review, we conclude that a sample of the defendant’s DNA was properly taken
in accordance with the statute. The defendant’s underlying offense was aggravated assault,
one of the enumerated violent felonies in the statute. Tenn. Code Ann. § 40-35-
321(e)(3)(C). Obviously, fugitive from justice is not a substantive crime. See State v.
Hughes, 229 N.W.2d 655, 671 (Wis. 1975); David Raybin, 9 Tennessee Criminal Practice
and Procedure, § 2:2 (2011). It was the defendant’s alleged commission of the aggravated
assault that led to his being a wanted individual in Tennessee. The fugitive warrant was
merely the vehicle by which he was captured. In sum, the aggravated assault was the
underlying reason for the defendant’s arrest.

       As to the defendant’s contention that there was no probable cause finding on the
violent felony as required by section 40-35-321(e)(1), we note that Tennessee Code
Annotated section 40-9-103 provides:

               Whenever any person within this state is charged on the oath of any
       credible person before any judge or other magistrate of this state with the
       commission of a crime in any other state, and, except in cases arising under
       § 40-9-113, with having fled from justice; or whenever a complaint has been
       made before any judge or other magistrate in this state setting forth on the
       affidavit of any credible person in another state that a crime has been
       committed in that other state and that the accused has been charged in that
       other state with the commission of the crime, and, except in cases arising
       under § 40-9-113, has fled therefrom and is believed to have been found in
       this state, the judge or magistrate shall issue a warrant directed to the sheriff
       of the county in which the oath or complaint is filed directing the sheriff to
       apprehend the person charged, wherever the person may be found in this state,
       and bring the person before the issuing judge or magistrate or any other judge,
       court or magistrate who may be conveniently accessible to the place where the
       arrest may be made, to answer the charge or complaint and affidavit. A
       certified copy of the sworn charge or complaint and affidavit upon which the
       warrant is issued shall be attached to the warrant.

Id.


                                             -12-
        As explained in Raybin’s Tennessee Criminal Practice and Procedure:

               Under the first sentence of T.C.A. § 40-9-103, the affidavit of
        complaint must allege, at minimum, that the affiant has probable cause for
        believing: (1) the defendant is charged with the commission of an offense in
        another state, (2) what the charge is (e.g. warrant for murder, indictment for
        rape), and (3) that the person fled the state.

Raybin, § 2:2. Accordingly, in order for the fugitive warrant to have issued in Tennessee,
there had to have been proof that the defendant was charged with the commission of
aggravated assault in Mississippi. In order for Mississippi to have charged the defendant,
there had to have been a showing of probable cause.1 See Stevenson v. State, 244 So. 2d 30,
33 (Miss. 1971) (stating that “[a]n indictment by a grand jury is a determination that
probable cause does exist to hold the person indicted for trial”). Thus, the defendant’s
contention that there was no finding of probable cause on the aggravated assault charge is
without merit.

        Having determined the statutory compliance with the sampling of the defendant’s
DNA, we turn to his allegation that his DNA sample was taken in violation of his right to
be free of unreasonable searches and seizures. As noted above, the defendant’s claim of an
unreasonable search and seizure is based on, as was his statutory argument, his assertion that
he “was not arrested for any offense for which the statute gives authority for [DNA
sampling]” and that there was not a finding of probable cause on the aggravated assault
charge. The defendant does not contest the constitutionality of the DNA sampling statute,
rather he asserts that the sampling of his DNA was unconstitutional because it was not done
in accordance with the statute. Given our conclusion that the defendant’s DNA was sampled
in compliance with the statute and that there had been a probable cause determination made
in his case, we need not address the defendant’s assertion that the sampling constituted an
unconstitutional search and seizure. It is not necessary for a court to address a constitutional
issue if the resolution of the issue is not “absolutely necessary to determining the issues in
the case and adjudicating the rights of the parties.” State v. Taylor, 70 S.W.3d 717, 720
(Tenn. 2002) (citing Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)).

      With regard to the retention of his DNA in the system, the defendant argues that: (1)
because he was acquitted on the aggravated assault charge in Mississippi after a trial, the
DNA sample taken upon his arrest in Tennessee should have been destroyed pursuant to

        1
         The defendant acknowledged at the suppression hearing that he attended one or two court dates on
his pending aggravated assault case before he stopped going, leading to his eventual arrest on the fugitive
warrant.

                                                   -13-
Tennessee Code Annotated section 40-35-321(e)(2), which provides for destruction of DNA
samples upon acquittal; and (2) the lack of any mechanism in Tennessee Code Annotated
section 40-35-321(e)(2) for keeping track of the status of out-of-state charges violates his
rights under the equal protection clause because it cannot be applied equally to persons
arrested in Tennessee and tried in Tennessee and those arrested in Tennessee but tried in
another state.

        The court did not reach the equal protection issue because it found that the issue was
a statutory, not constitutional, matter. The court found that: (1) it was reasonable under the
circumstances for the TBI to retain the defendant’s DNA record, having not been notified
by the Mississippi clerk of the defendant’s acquittal; (2) the Mississippi clerk had no duty
to follow a Tennessee statute and therefore no duty to notify the TBI of the defendant’s
acquittal; (3) even assuming the Mississippi clerk had a duty to notify the TBI or the TBI
had a duty to constantly inquire of the Mississippi clerk the status of the defendant’s case,
it was reasonable under the circumstances to retain the defendant’s DNA sample pursuant
to Tennessee Code Annotated section 40-35-321(d) because the defendant was a convicted
felon, having previously been convicted of car theft; and (4) Tennessee Code Annotated
section 38-6-113(c)(1) provides that a defendant’s detention, arrest, and conviction based
on a databank match are not invalidated if it is later determined that the sample was obtained
or placed in the database by mistake.

       Upon review, we conclude that we need not determine whether the trial court was
correct in its finding that the defendant’s DNA was properly retained in the CODIS database
as he was a convicted felon because Tennessee Code Annotated section 38-6-113(c)(1) is
clear that any erroneous obtaining or placing in the database does not invalidate the
defendant’s arrest and conviction based on such databank match.

        As stated above, with regard to his equal protection claim, the defendant argues that
the lack of any mechanism in Tennessee Code Annotated section 40-35-321(e)(2) for
keeping track of the status of out-of-state charges violates his rights under the equal
protection clause because it cannot be applied equally to persons arrested in Tennessee and
tried in Tennessee and those arrested in Tennessee but tried in another state.

        Both the United States and Tennessee Constitutions guarantee citizens the equal
protection of the laws. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 412
(Tenn. 1995), cert. denied, 517 U.S. 1222 (1996); State v. Tester, 879 S.W.2d 823, 828
(Tenn. 1994). “Equal protection requires that all persons in similar circumstances be treated
alike[.]” State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 912 (Tenn. 1996). “A
defendant in a criminal proceeding who asserts an equal protection violation must prove (1)
the existence of purposeful discrimination and (2) that this purposeful discrimination had

                                            -14-
a discriminatory effect on him or her.” State v. Banks, 271 S.W.3d 90, 155 (Tenn. 2008)
(citing McCleskey v. Kemp, 481 U.S. 279, 292 (1987); State v. Irick, 762 S.W.2d 121, 129
(Tenn. 1988)).

       The defendant has failed to prove the existence of any purposeful discrimination in
the statute. Nothing in the statute evidences any legislative intent to make distinctions
regarding notification of dismissals or acquittals. In fact, the plain language of the statute
requires the clerk, without differentiation, to notify the TBI of the final disposition of the
criminal proceedings. Thus, the statute is neutral on its face and, as to its effects, the
defendant’s situation is not different than that of a Tennessee arrestee who is subsequently
acquitted but, for some reason, the court clerk fails to notify the TBI of the acquittal and who
likewise has no recourse under the statute. The defendant’s claim that the statute violates
the equal protection clause is without merit.

                   B. Second DNA Sample and Statements to Police

       The defendant argues that his second DNA sample as well as his statements to police
were “fruit of the poisonous tree” and subject to the exclusionary rule because they derived
from the original sampling and maintaining of his DNA contrary to the statute. He
additionally asserts that his statements were made under “coercive” circumstances and that
he was not taken before a magistrate within forty-eight hours.

        As to the defendant’s first contention that his second DNA sample and statements to
police should be excluded as flowing from the first DNA sample, such contention is without
merit as we have already concluded that the taking of the first DNA sample was proper. In
addition, it appears that the defendant voluntarily consented to give his second DNA sample.
Sergeant Merritt testified at the suppression hearing that he told the defendant he had been
asked to obtain a DNA sample, and the defendant signed a consent form and gave a sample.
Sergeant Merritt recalled that the defendant never expressed any reluctance to give a sample
and was completely cooperative. The defendant testified that he gave the sample because
the officers told him that they would get a warrant if he did not comply and that would make
him look guilty. However, the trial court accredited Sergeant Merritt’s testimony in finding
that the defendant’s second DNA sample was constitutionally obtained by consent.

       We turn next to the defendant’s assertions regarding the “coercive” circumstances in
which he made his statements and the timeliness in which he was brought before a
magistrate. The defendant claims that the circumstances were coercive because he had been
in custody for twenty-six hours and had not eaten or slept. With regard to the length of time
before he was taken before a magistrate for a judicial determination of probable cause, the
defendant points out that he was arrested on Friday, March 20, 2009, and not taken before

                                             -15-
the magistrate until Monday, March 23, 2009.

         The Fifth Amendment to the United States Constitution provides that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. The corresponding provision of the Tennessee Constitution states “[t]hat in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. Thus, to be admissible at trial, a confession made while
under custodial interrogation must be shown to have been freely and voluntarily given, after
the defendant’s knowing waiver of his constitutional right to remain silent and to have an
attorney present during questioning. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

        Under the Fifth Amendment, a confession is involuntary when it is the result of
coercive action on the part of the State. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).
Our supreme court has concluded that “the test of voluntariness for confessions under
Article 1, § 9 is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn.
1992). In order for a confession to be considered voluntary in Tennessee, it must not be the
result of “‘any sort of threats or violence, . . . any direct or implied promises, however slight,
nor by the exertion of any improper influence.’ ” State v. Smith, 42 S.W.3d 101, 109 (Tenn.
Crim. App. 2000) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). Courts
look to the totality of the circumstances to determine whether a confession is voluntary.
State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996).

        In ruling on this issue, the trial court noted that the defendant testified that, when he
was arrested, he had not eaten since the previous day or slept for a couple of days due to
constant cocaine use. However, the court accredited the testimony of Lieutenant Bart
Ragland that the defendant was given something to eat and never indicated that he was
hungry or sleep deprived. As such, the court concluded that the defendant’s statements were
freely and voluntarily given after he had been advised of, and waived, his Miranda rights.
This court will not second-guess the trial court’s credibility findings on appeal, see Odom,
928 S.W.2d at 23, and nothing in the record preponderates against the trial court’s findings.

        With regard to the timeliness in which he was brought before a magistrate, we note
that a judicial determination of probable cause that occurs within forty-eight hours of a
defendant’s arrest is generally sufficient to satisfy the Fourth Amendment, unless there is
evidence that the probable cause determination was unreasonably delayed for the purpose
of gathering additional information to justify an arrest, was motivated by ill will toward the
defendant, or constituted a “‘delay for delay’s sake.’” State v. Huddleston, 924 S.W.2d 666,
672 (Tenn. 1996) (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)).
“[I]f the statement was given prior to the time the detention ripened into a constitutional

                                              -16-
violation, it is not the product of the illegality and should not be suppressed.” Id. at 675.

        According to the defendant’s own recitation of the facts in his motion to suppress and
the testimony at the suppression hearing, the defendant was arrested on March 20, 2009 at
1:40 p.m. and kept in the jail until the next afternoon when he was taken to the police
department for questioning and ultimately gave his statements around 5:00 p.m., well within
the time frame before the detention ripened into a constitutional violation. Therefore, he is
not entitled to relief on this issue.

                               II. Sufficiency of the Evidence

       The defendant argues that without the evidence of the DNA tests and the statements
he made as a result of those tests, the evidence in the case is insufficient to support the
verdicts of guilty. He seemingly acknowledges that there is sufficient proof of the victim’s
rape and murder; he only disputes the sufficiency of the proof of his identity as the
perpetrator in the absence of DNA evidence.

        When the sufficiency of the convicting evidence is challenged, the relevant question
of the reviewing court is “whether, after viewing 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, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

                                               -17-
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

         “A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant
has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       As we concluded above, the defendant’s DNA evidence and statements were properly
admitted in this case. The medical proof established that the victim had a number of the
defendant’s viable sperm in her vagina, which had to have been deposited close to the time
of the crimes. The defendant’s DNA was also found on the broken bathroom tile that was
used to batter the victim, as well as on a skull cap found at the scene. The victim, who was
found with a wire coat hanger noose around her neck suspended from a door knob, died
from a combination of strangulation and blunt force trauma to the head. Accordingly, the
proof was sufficient for the jury to conclude that the defendant raped and killed the victim.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -18-
