         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 16, 2001

                  STATE OF TENNESSEE v. RICKY T. HUGHES

                     Appeal from the Criminal Court for Davidson County
                         No. 98-C-2298    Cheryl Blackburn, Judge



                    No. M2000-01846-CCA-MR3-CD - Filed May 21, 2002


A Davidson County Criminal Court jury convicted the defendant, Ricky T. Hughes, of facilitation
of first degree felony murder, a Class A felony, and especially aggravated robbery, a Class A felony.
The trial court sentenced him to consecutive sentences of twenty-five years as a standard offender
for the facilitation conviction and twenty-five years as a violent offender for the aggravated robbery
conviction. The defendant appeals, claiming that (1) the evidence is insufficient to support his
convictions, (2) the trial court erred by denying his motion to suppress his confession, and (3) the
trial court erred by not allowing him to testify about a prior consistent statement. We affirm the
judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L.
SMITH, JJ., joined.

Bruce Poag (on appeal) and Lionel Barrett and Daniel McMurtry (at trial), Nashville, Tennessee, for
the appellant, Ricky T. Hughes.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Sharon L. Brox and Roger D. Moore, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the murder and robbery of Frederick Hemple. Howard Hemple, the
victim’s father, testified that the twenty-one-year-old victim lived with him and that he last saw the
victim alive on May 6, 1998. He said that about 1:45 p.m., he was at home with the victim and that
he was getting ready to go to a doctor’s appointment. He said that before he left, the victim told him
that the victim was going to the defendant’s house later that afternoon. He said that the victim and
the defendant had gone to high school together and were friends.
        Mr. Hemple testified that he went to his appointment and that when he returned home, the
victim was gone. He said that by noon on May 7, the victim had not come home and that he knew
something was wrong with the victim. He said that he paged the victim but that the victim did not
answer the page. He said that the victim had his own telephone line and that the victim’s caller
identification box showed that the defendant had telephoned the victim about 4:00 p.m. on May 6.
He said he telephoned the defendant and asked if the defendant had heard from the victim. He said
the defendant told him that the victim had not shown up at the defendant’s house on May 6.

        Mr. Hemple testified that on May 8, someone found the victim’s car in the Rapid Package
System (RPS) parking lot about one-half mile from the defendant’s home. He said that he called the
police and that a few days later, the police found the victim’s body. He said that the victim sold
marijuana but that he did not know if the victim was carrying marijuana on May 6. He said the
victim probably had money with him on the 6th.

        Wendy Caudill Cook testified that she was engaged to the defendant and that she was living
with him on May 6, 1998. She said Jon Goodale and Chris Goodale lived with them in the
defendant’s townhouse. She said that on May 6, she got home around 3:00 p.m. and that the
defendant told her that he did not want her there because “something bad was going to happen.” She
said that she took a shower and left and that when she returned about thirty minutes later, a car she
did not recognize was parked in the driveway. She said she went inside and found the defendant and
Jon and Chris Goodale cleaning the kitchen and doing laundry. She said that the house smelled like
bleach and that she saw blood on the carpet and a wicker chair.

        Ms. Cook testified that the defendant was acting normally. She said the defendant told her
that Chris Goodale had busted his knuckle and had bled everywhere. She said that a pair of shoes
that she did not recognize was on the kitchen table and that a box cutter was beside the kitchen sink.
She said the victim’s registration to the strange car was lying on top of the entertainment system.
She said that the defendant asked her if she knew anyone who wanted to buy marijuana and that the
defendant did not normally sell marijuana. She said she had not been threatened by Jon or Chris
Goodale.

        Jennifer Eakes testified that she was in the defendant’s home during the time the victim was
missing. She said she saw blood on the carpet, and it looked like someone had tried to clean the
carpet. She also saw a box cutter on the kitchen counter. She said that when she got home, she told
her mother about what she had seen and that her mother called the police. She said that the next day,
she invited Wendy Cook to her house. She said that while Ms. Cook was there, the police came and
interviewed both of them. She said Ms. Cook left with the police.

        Officer William Kirby of the Metro Nashville Police Department testified that he investigated
the victim’s murder. He said that at 2:00 a.m. on May 11, the police searched the defendant’s
townhouse pursuant to a search warrant. He said that when the police arrived, Wendy Cook, the
defendant, and Jon and Chris Goodale were in the home. He said he saw bloodstains on the living
room carpet and on a rocking chair. He said it looked like someone had tried to clean the blood from

                                                 -2-
the carpet. He said he saw blood spatter on doors and blinds. He said that a Luminal test revealed
blood stains on the couch and a rug. He did not remember seeing a baseball bat or a box cutter in
the home.

         Detective Juan Borges of the Metro Nashville Police Department testified that in May 1998,
he investigated a missing persons case involving the victim. He said that he interviewed the victim’s
father, the defendant, and Wendy Cook. He said that from those interviews, he obtained a search
warrant for the defendant’s home. He said he and other officers executed the search warrant on May
11 and found blood spots in the living room and kitchen. He said that about 4:30 a.m., he asked
Wendy Cook, the defendant, Jon Goodale, and Chris Goodale if they wanted to go to the police
department. He said all four went to the police department voluntarily. He said that about 7:40 a.m.,
he read the defendant his rights, the defendant signed a waiver of rights form, and he interviewed
the defendant. He said that at first, the defendant denied being involved in a crime. He said that
about twenty minutes later, the defendant admitted being present when the victim was killed but
denied killing the victim. He said the defendant told him the following: On May 6, the victim and
an African-American male came to his house. At some point, the African-American male hit the
victim in the head with a baseball bat. A few minutes later, two more African-American males came
to the townhouse and the defendant let them inside. The three males made the defendant help them
dispose of the victim’s body and clean up the townhouse. The three males threatened to kill the
defendant if he did not help them.

         Detective Borges testified that the defendant gave him directions to the victim’s body and
that he sent Sergeant Dwayne Phillips to look for the victim. He said that about 1:45 p.m., he
interviewed the defendant again and that, at first, the defendant told the same story. He said that
later, the defendant acknowledged killing the victim.

        Detective Borges recorded the defendant’s confession on an audiotape. The audiotape was
played for the jury and revealed the following: On May 6, the defendant and Jon Goodale planned
to rob the victim. When Wendy Cook came home, the defendant told her to leave. The victim
arrived, and the defendant told the victim to give him the victim’s money. The victim threw about
two hundred dollars on the floor, and the defendant hit the victim with a baseball bat and cut the
victim’s throat. Jon Goodale was present during the murder and held the victim. Mr. Goodale also
helped the defendant move the victim’s body and clean the house. The defendant parked the
victim’s car at RPS, and he and Jon Goodale divided the money taken from the victim.

       Detective Borges testified that the defendant never said he did not want to talk and never
asked for an attorney. He said the police found the baseball bat about 360 feet from the defendant’s
home but never found the box cutter.

        Sergeant Dwayne Phillips of the Metro Nashville Police Department testified that on May
11, 1998, the police searched the defendant’s house pursuant to a search warrant. He said officers
found blood in a rocking chair and in cracks in the floor. He said a Luminal test also revealed blood
on the couch and on top of the washing machine. He said that outside the townhouse, he noticed a

                                                -3-
garbage can with an orange trash bag in it. He said he thought that was unusual because orange
symbolized biohazard. He said that later that day, he learned where the victim’s body might be
located. He said he went to that location, which was about two miles from the defendant’s home,
and saw a garbage dumpsite beside the road. He said that he noticed an orange trash bag similar to
the one that he had seen earlier. He said that he called the Identification Unit and that officers came
to the scene, secured it, and took photographs. He said officers found the victim’s body in the
orange trash bag.

        Corporal Donald Smythe of the Davidson County Sheriff’s Department testified that on May
11, he was working in the Booking Department. He said that as the defendant was being
fingerprinted, he asked the defendant why the defendant was there. He said the defendant answered,
“I killed somebody but I didn’t mean to do it. It looks like I’ll be here for a while. You can’t beat
a homicide charge.”

        Dr. John E. Gerber, a forensic pathologist with the Davidson County Medical Examiner’s
Office, conducted the victim’s autopsy. He testified that the victim’s death was a homicide and that
the victim died of blunt and sharp force injuries to the head, neck, torso, and upper extremities. He
said that the most lethal injury to the victim was a cut to the neck. He said that the victim’s elbows
had injuries that could have occurred if the victim crossed his arms over his face. He said that a
baseball bat was consistent with the victim’s blunt force injuries. He said that a cocaine metabolite
was found in the victim’s blood and that marijuana was detected in the victim’s urine.

        The defendant testified that on May 6, 1998, he was living with Wendy Cook, Jon Goodale,
and Chris Goodale. He denied harming or killing the victim but acknowledged helping dispose of
the victim’s body. He said that the statements he gave to Detective Borges were not true. He said
that Jon Goodale made up the story about the three African-American males and that Jon told him
to go along with that story. He said that he later confessed to killing the victim because Jon
threatened to harm the defendant’s mother and Ms. Cook.

         The defendant testified that on May 6, he got home about 2:30 p.m. and that Jon Goodale was
at the townhouse. He said that Wendy Cook arrived about 3:00 p.m. and that Jon Goodale was upset
because Ms. Cook was home early from work. He said that Chris Goodale came home about 3:30
p.m. and that he saw Jon and Chris talking on the front porch. He said that when Jon and Chris came
inside, they were smiling. He said that Ms. Cook left the townhouse and that Jon made a telephone
call. He said that later, the victim came to the townhouse. He said that he went downstairs and that
the victim was sitting on the couch. He said that he went into the kitchen and heard the victim ask
Jon if Jon had the victim’s money. He said that Jon told the victim no and that the victim asked Jon
if the victim could use the telephone. The defendant said that Jon let the victim use the telephone
and that he heard a “clank.” He said that as he walked from the kitchen back to the living room, he
glanced up and saw that Jon had hit the victim with a baseball bat. He said that the victim asked Jon
what Jon wanted and that Jon told the victim that he “wanted it all.” He said that the victim threw
money on the floor.


                                                 -4-
        The defendant testified that Jon hit the victim again with the bat and that the victim ran
toward the kitchen. He said that he looked in the kitchen and saw Chris hitting and kicking the
victim. He said that the next time he looked into the kitchen, he saw Chris holding a knife or box
cutter and walking away from the victim. He said blood was on the floor, and the victim was dead.
He said he and Jon wrapped the victim in blankets and orange trash bags. He said he and Jon put
the victim into the victim’s car while Chris cleaned the house. He said that after he and Jon dumped
the victim’s body, they returned to help Chris clean the townhouse. He said he did not recall telling
Corporal Smythe that he killed someone.

       On cross-examination, the defendant acknowledged that the townhouse, baseball bat, and
orange trash bags belonged to him. He said that he rode with Jon to the site where they dumped the
victim’s body and that Jon drove the victim’s car to the RPS parking lot. He said Jon took the
defendant’s shoes and put them on a table in the house. He denied knowing what happened to the
victim’s money. He denied telling Ms. Cook that she needed to leave because something bad was
going to happen, and he claimed she was lying when she testified that she came home and found the
defendant, Jon, and Chris cleaning the house. He acknowledged that he never told the police that
Jon threatened him.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his convictions. The state
claims that the evidence is sufficient. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal 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, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997).

        First degree felony murder is, in pertinent part, an unlawful “killing of another committed
in the perpetration of or attempt to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2).
Pursuant to Tenn. Code Ann. § 39-11-403(a), a “person is criminally responsible for the facilitation
of a felony if, knowing that another intends to commit a specific felony, but without the intent
required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial
assistance in the commission of the felony.”

      Especially aggravated robbery is defined as robbery that is “(1) [a]ccomplished with a deadly
weapon; and (2)[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a).


                                                 -5-
A deadly weapon is defined as “[a]nything that in the manner of its use or intended use is capable
of causing death or serious bodily injury[.]” Tenn. Code Ann. § 39-11-106(a)(5)(B).

         We believe that the evidence is sufficient to support the defendant’s convictions for
facilitation of first degree felony murder and especially aggravated robbery. In a taped confession,
the defendant said that on May 6, he planned to rob the victim and that when the victim arrived at
his home, he told the victim to give him the victim’s money. He stated that the victim threw the
money on the floor and that he hit the victim with the baseball bat, cut the victim’s throat, and
divided the victim’s money with Jon Goodale. We believe that in the light most favorable to the
state, this evidence was sufficient for the jury to find that the defendant committed especially
aggravated robbery.

        Furthermore, Wendy Cook testified that when she came home at 3:00 p.m. on May 6, the
defendant, Jon Goodale, and Chris Goodale were at the townhouse and that the defendant told her
to leave because something bad was going to happen. She also testified that when she returned about
4:00 p.m., blood was on the carpet, the victim’s car registration was on the entertainment center, and
the defendant, Jon, and Chris were cleaning the house with bleach. We believe that this evidence
was sufficient for the jury to conclude that the defendant knowingly assisted with committing the
especially aggravated robbery, which resulted in the victim’s death. As with the testimony of
witnesses, the jury was entitled to believe part of the defendant’s statements while rejecting other
parts. Batey v. State, 527 S.W.2d 148 (Tenn. Crim. App. 1975). Therefore, viewed in the light most
favorable to the state, the evidence is sufficient to support the convictions.

                                  II. MOTION TO SUPPRESS

        Next, the defendant contends that the trial court erred by denying his motion to suppress his
May 11 confession. He claims that he did not make his confession knowingly and voluntarily. The
state contends that the trial court correctly denied the defendant’s motion to suppress. We agree with
the state.

        At the suppression hearing, Detective Borges testified that he first interviewed the defendant
about 7:00 a.m. on May 11, 1998, at the police department. He stated that he read the defendant his
Miranda rights from a waiver of rights form and that he asked the defendant if the defendant
understood them. He said that the defendant said yes and that the defendant may have read the form.
He said that the defendant signed the form and did not appear to be under the influence of drugs or
alcohol. He said that the defendant never asked for an attorney and was eager to talk to him. He said
that he did not make any threats or promises to the defendant.

        On cross-examination, Detective Borges acknowledged that when the police served the
search warrant, officers initially handcuffed the defendant and the other people in the townhouse,
but he said it was for police safety. He stated that the defendant was not under arrest at that time,
but he admitted that it was standard procedure to handcuff people who were under arrest. He said
that after the townhouse had been secured, officers removed the handcuffs. He said that at some

                                                 -6-
point, he asked the defendant and his roommates if they would go voluntarily to the police
department. He said that they said yes and that the defendant and his roommates rode in the back
of his unmarked patrol car to the police station. He said that at the police station, the defendant and
his roommates waited in the hallway together and that the defendant was “free to do whatever he
wanted to do.” However, he said that while he was interviewing the defendant, the defendant was
secluded from his roommates. He said that the defendant implicated himself about 8:30 a.m. but that
the defendant was not arrested until about 5:00 p.m. He said the defendant never asked for an
attorney.

        The defendant did not testify at the hearing. However, the record reflects that police officers
served the May 11 search warrant at 2:00 a.m. and that about 4:00 a.m., Detective Borges asked the
defendant if he would go to the police station voluntarily. The record also reflects that the defendant
signed the waiver of rights form at 7:43 a.m. and that he confessed to killing the victim sometime
after 1:30 p.m.

       The trial court found that the defendant voluntarily accompanied Detective Hughes to the
police station and that the defendant was not in custody until he was arrested about 6:30 p.m.
Moreover, the trial court determined that the defendant voluntarily waived his Miranda rights before
he confessed to killing the victim.

         A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The application of the law to the facts as
determined by the trial court is a question of law which is reviewed de novo on appeal. State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Further, questions of the “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. at 628. The prevailing party “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 the evidence.” Odom, 928 S.W.2d at 23. Finally, both
the proof adduced at the suppression hearing and the proof adduced at trial may be considered in
reviewing the trial court’s decision on the motion to suppress. State v. Henning, 975 S.W.2d 290,
299 (Tenn. 1998).

        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 right to counsel before they may initiate
custodial interrogation. 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (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, 114 S. Ct. 1526, 1528 (1994). A waiver of
constitutional rights must be made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.
at 444, 86 S. Ct. at 1612. 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


                                                  -7-
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 defendant contends that the confession he gave to Detective Borges on the afternoon of
May 11 should have been suppressed. He contends that although Detective Borges read the Miranda
rights during the first interview, the totality of the circumstances surrounding his confession indicate
that his confession was not voluntary.

        Our review of the record supports the trial court’s finding that the defendant voluntarily
waived his Miranda rights. Detective Borges testified that he read Miranda warnings to the
defendant during the defendant’s first interview, and the defendant signed a waiver of rights form.
Detective Borges testified that the defendant was not under the influence of drugs or alcohol and that
the defendant never requested an attorney. In addition, he said that he did not threaten the defendant
or promise him anything. The defendant did not testify to the contrary, and the evidence does not
preponderate against the trial court’s finding.

                           III. PRIOR CONSISTENT STATEMENT

        Finally, the defendant contends that the trial court erred by not allowing him to prove that
one week before trial, he gave a statement to police that was consistent with his trial testimony.
Although the trial court ruled that such evidence was inadmissible hearsay, the defendant contends
that such evidence was not hearsay because defense counsel was not attempting to bolster his
credibility and because he was not going to testify as to the substance of the prior consistent
statement. Moreover, he contends that he was harmed by the trial court’s ruling because he was
“precluded from testifying before the jury that the reason he gave an incriminating statement to the
police on May 11, 1998, was because the lives of his immediate family and fiancee were being
threatened by Jon Goodale.” He claims that his attorney “should have been permitted to ask [him]
what actually took place on May 6, 1998, and . . . if what happened on May 6, 1998, was what he
told the police a week before his trial.” The state argues that the trial court correctly ruled that the
defendant’s prior consistent statement was inadmissible. We agree with the state.

        The defendant testified during direct examination that he did not kill the victim but that he
helped dispose of the victim’s body. He said that he confessed to killing the victim because Jon
Goodale threatened to harm the defendant’s mother and Wendy Cook. Defense counsel then asked
the defendant if he had made a statement to the police a week before trial. Before the defendant
could answer, the state objected, and the trial court held a jury-out hearing. In the hearing, defense
counsel stated that one week before trial, the defendant gave a statement to police that was consistent
with his trial testimony. Counsel argued that he was not going to ask the defendant the substance
of the prior statement but that he merely was going to ask him if he made the prior consistent
statement. The trial court stated that based on State v. Terry Stephens, No. 01C01-9709-CR-00410,
Davidson County (Tenn. Crim. App. Aug. 24, 1998), evidence of the defendant’s prior consistent
statement could be introduced only if the defendant made the statement before he confessed to


                                                  -8-
Detective Borges on May 11. The trial court ruled that because the defendant made the prior
consistent statement after that date, the statement was inadmissible hearsay.

        Generally, evidence of a prior consistent statement is not admissible to bolster a witness’s
credibility. State v. Hodge, 989 S.W.2d 717, 725 (Tenn. Crim. App. 1998) (citing State v. Braggs,
604 S.W.2d 883, 885 (Tenn. Crim. App. 1980)). One exception to this general rule is that evidence
of “prior consistent statements may be admissible . . . to rehabilitate a witness when insinuations of
recent fabrication have been made or when deliberate falsehood has been implied.” State v. Benton,
759 S.W.2d 427, 433 (Tenn. Crim. App. 1988). However, this court has stated, “If and only if a
witness is impeached by a prior inconsistent statement or there is some insinuation of recent
fabrication or deliberate falsehood, his testimony may be bolstered or corroborated by showing that
he has made previous statements out of court similar to and consistent with his testimony on the
stand.” Terry Stephens, slip op. at 8 (citing Farmer v. State, 201 Tenn. 107, 113, 296 S.W.2d 879,
882 (Tenn. 1956); State v. Tizard, 897 S.W.2d 732, 746 (Tenn. Crim. App. 1994); State v. Meeks,
867 S.W.2d 361, 374 (Tenn. Crim. App. 1993)). In such a situation, evidence of a prior consistent
statement is allowed to show that the trial testimony is consistent with what the witness said when
no influence or motive to lie existed. Sutton v. State, 155 Tenn. 200, 204, 291 S.W. 1069, 1070
(1927). In other words, the witness must have made the prior consistent statement before he made
the impeaching inconsistent statement. Terry Stephens, slip op at 9.

        Initially, we note that we see no basis for the defendant’s claim that he was precluded from
testifying about Jon Goodale threatening him or about what happened to the victim on May 6. To
the contrary, the record reveals that the defendant testified at length about Jon Goodale’s threat and
about the defendant’s version of the victim’s May 6 murder. In any event, the exception to the
inadmissibility of prior consistent statements does not apply in this case because the defendant had
not been impeached by the state. Moreover, the defendant made the alleged prior consistent
statement after his prior inconsistent statement, i.e. his May 11, 1998 confession. Therefore, we
conclude that the trial court properly ruled that the defendant’s prior consistent statement was
inadmissible.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.


                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




                                                 -9-
