       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE            FILED
                     AUGUST SESSION, 1998          March 31, 1999

                                               Cecil W. Crowson
STATE OF TENNESSEE,       )                  Appellate Court Clerk
                              C.C.A. NO. 01C01-9706-CC-00231
                          )
     Appellee,            )
                          )
                          )   MARION COUNTY
VS.                       )
                          )   HON. BUDDY PERRY
JOS EPH MAR TIN TH URM AN,)   JUDGE
                          )
     Appe llant.          )   (Direct Appe al - Preme ditated First
                          )   Degree M urder)



FOR THE APPELLANT:            FOR THE APPELLEE:

HOWARD B. BARNWELL, JR.       JOHN KNOX WALKUP
829 McCallie Avenue           Attorney General and Reporter
Chattanooga, TN 37403
                              TIMOTHY F. BEHAN
                              Assistant Attorney General
                              425 Fifth Avenu e North
                              Nashville, TN 37243

                              J. MICHAEL TAYLOR
                              District Attorney General

                              STE VE ST RAIN
                              Assistant District Attorney
                              Jasper, TN



ORDER FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                           OPINION

        The appellan t, Joseph Martin Thurman, was convicted by a Marion Coun ty

jury of one (1) count of premeditated first degree murder and one (1) count of

arson. He was sentenced to concurrent sentences of life imprisonment for

murder and three (3) years for arson. On appeal, he claim s that the trial court

erred in (1) failing to s uppres s his statem ents to law enforcement authorities; and

(2) denying a continuance and/or sanctions after the state fa iled to com ply with

discovery requests. After a thorough review of the record before this Court, we

find no rev ersible erro r and affirm the judgm ent of the tria l court.



                                               FACTS




        On January 17, 1995, emergency fire personnel received a call regarding

a burning mobile home in Bledsoe County. The mobile home belonged to th e

appellant and his wife, Elizabeth Thurman.                    After approximately two hours,

emergency personnel were able to stop the fire, but the mobile home received

extensive damage as a result. Authorities later recovered the burned body of

Elizabeth Thurman in the area of the master bedroom.1

        When questioned regarding the incident, appellant denied any knowledge

of how th e fire sta rted.        Ap pellan t told investigators that he left the trailer at

appro ximate ly 2:00 p.m., and when he returned appro ximate ly one a nd on e-half

hours later, he found the trailer burning. However, upon further investigation,




        1
         According to W illiam Bark er, an arson investigator with the State Fire Marshall’s Office, the fire
burned through the floor in the master bedroom, so that the victim’s body was actually on the ground in the
area wh ere the b edroom had bee n previou sly.

                                                  -2-
authorities were ab le to elimina te accide ntal caus es of the fire . Instead, the

investigato rs found evidenc e that acc elerants w ere use d in starting the fire.

       Dr. Charles Harlan p erforme d an au topsy on the bod y of Elizabe th

Thurman. Dr. Harlan found a nega tive carb on m onoxid e level in the victim ’s

blood, which indicated that the victim died prior to the fire. Further, Dr. Harlan

found no soot or smoke in the victim’s trachea, which also indicated that the

victim’s death o ccurred prior to the fire . Dr. Harlan determ ined th at the vic tim did

not die as a result of natural causes, a gunshot wound or sharp force trauma, but

could not eliminate suffocation or strangulation as a cause of death. Due to the

extensive burn d ama ge to th e victim ’s body, the doctor could not determine the

precise c ause o f death.

       In the course of his investigation, TBI Agent David Emiren interviewed the

appellant in May of 1995. Wh en confronte d with the informa tion that his wife did

not die as a result of the fire, app ellant told Emire n that Elizabeth committed

suicide by hang ing herse lf. He claimed that w hen he disc overed his wife’s bo dy,

there was a fire burning in the mid dle of the b edroom . Accord ing to app ellant,

he then decided to let the fire bu rn in orde r to conce al his wife’s s uicide.

       After appellan t gave the statem ent, Emire n ask ed him if he would consent

to take a po lygraph e xamina tion, to which ap pellant ag reed. At the conclusion

of this examin ation, app ellant cha nged h is story onc e again . In this statem ent,

appellant admitted that he and his wife we re having marital problems. On the day

of the fire, he and Elizabeth had gotten into an argument in the master bedroom.

Elizabe th left the bedroom and return ed with a jug o f keros ene. T he victim then

poured the kerosene onto some clothes on the floor and ign ited a lighter.

Appellant told Agent Emiren that he gra bbed the ligh ter from her ha nds, th rew it

down, and the room caugh t on fire. The victim physically attacked him, and in an

                                           -3-
effort to subdue her, the appellant placed his hands around his wife’s neck and

choked her. App ellant state d, “I don’t kn ow wha t happe ned. I don ’t know if I

broke her neck or if I just choked her too hard. The next thing I knew was that we

were laying on the floor an d I was shak ing her trying to get he r up.” Appellant

told Emiren that he then left the trailer, not kn owing wheth er the fire was s till

burning .

       Appellant was placed under arrest and subsequently charged with first

degree murder a nd arson.       At trial, the state presented testimony that the

appellant had a long-term roma ntic relation ship with Michelle Hamby, a co-worker

of appellant and the victim. Althoug h Ham by testified tha t her relation ship with

appellant had term inated in Octo ber 19 94, sh e ack nowle dged that sh e aga in

became intimate with the ap pellant approxim ately one mo nth after Elizabeth’s

death. Other witnesses testified that appellant had announc ed his desire to kill

his wife and h ad even solicited an other to commit the crime in late November of

1994. The state also presented evidence of various insura nce p olicies w herein

the appellant was the beneficiary and would gain substantial amounts of money

in the eve nt of his wife’s dea th. Furthe r, an em ployee w ith the Tennessee Valley

Federal Credit U nion testified that eight days prior to his wife’s death, the

appellant opened a single checking account and named his son as the

beneficia ry.

       The appellant tes tified in h is own beha lf at trial. Re gardin g his w ife’s

death, the ap pellant testified in conformity with his last statement to Agent

Emiren, stating tha t he accid entally cho ked his w ife to death. He stated that he

did not know whether the trailer was on fire when he left. When he returned, the

trailer had burned partially, and the appellant retrieved some gasoline and poured

it in the h allway, caus ing the fire to ign ite onc e aga in. W hen a sked why he did

                                         -4-
such a thing , appe llant rep lied, “I tho ught m aybe th at if it burned the rest of the

way up that people would think it was an accident and think that she died in a fire,

‘cause I know ed nobod y would believe a nything I told them .”

       The jury returned guilty verdicts for one (1) count of premeditated first

degree murder and one (1) count of arson. From his convictions, appellant

brings this ap peal.



                             MOTION TO SUPPRESS




       Appellant conten ds that the trial cou rt erred in de nying a m otion to

suppress his statements given to Agent Emiren. He claims that, at the time he

was questioned , he had bee n seized witho ut probable cause; therefore, the

statem ents should have been suppressed as a product of the illegal seizure (so-

called “fruit of the poiso nous tree”).     A ddition ally, app ellant argues that his

statem ents were inadmissible because he requested an attorney during the

interview, and that request was ignored by Agent Emiren.

                                           A.

       On May 8, 1995, Agent Emiren and arson investigator William Barker went

to the ap pellan t’s place of em ploym ent to in terview him re gardin g his wife’s

death. Emiren and Barker arrived at approximately 11:00 p.m., which was the

beginning of appellant’s work shift at the La-Z-Boy manufacturing plant in Dayton.

W hile Emiren wa ited ou tside, B arker w ent ins ide the factory and a sked if

appellant would consent to being interviewed at the TBI office in Chattanooga.

Appella nt agree d. At this point, Barker advised the appellant that he was not

under a rrest.




                                           -5-
       Emiren, Barke r and th e app ellant g ot into A gent E miren ’s vehic le, and

Barker read the appellant his Miranda rights. When appellant asked whether he

was under arrest, Emire n said, “N o” and to ld appe llant that the trip to

Chattanooga was totally volunta ry. Appellant responded, “that’s fine” and signed

a written w aiver of his rig hts.

       After arriving in Chattanoog a, the app ellant gave an oral sta temen t to

Emiren, wherein he claimed that his wife had committed suicide. Appellant then

agreed to take a polygraph examination, conducted by TBI Special Agent

Malco lm Elrod.      Be fore administerin g the te st, Elrod read th e app ellant h is

Miranda rights, and the appellant signed a waiver of his rights, as well as a

document conse nting to the test.        After Elrod completed his interview, the

appellan t gave his s econd statem ent to Em iren.

       At the hea ring on the motion to suppress, the appellant testified that he felt

as if he were under arrest at the time he was questioned.              However, he

acknowledged that whe n he as ked the officers if he w as und er arrest, they

responded, “No.” Ap pellant sta ted that, when confronted with the waiver of righ ts

form, he did not read the form or listen to his Miranda rights, but “just signed

whateve r.”   He testified that Emiren and B arker wou ld not le t him re trieve h is

keys and w allet or m ove his illegally parke d car prior to traveling to Chattanooga.

He further stated that Emiren threatened him during the interview, and that he

felt intimidated into giving a statement. Appellant testified that he asked Emiren,

“do I need an attorney?”      According to appellant, Emiren replied, “[t]hat’s your

right” and continued the interview. Appellant testified that he wanted an attorney

present during the interview, but due to the lateness of the hour, did not feel as

if he could contact a n attorne y.




                                          -6-
      Emiren and B arker te stified a t the he aring th at app ellant vo luntarily

accompanied them to Chattanooga. Emiren stated that they spoke with appellant

at night bec ause h is work sh ift began a t 11:00 p.m ., and they wanted to e nsure

that appellant was well-rested during the interview.             Emiren did not reca ll

appellant ever asking to mo ve his vehicle or retrieve his keys and wallet. Barke r,

Emiren and Elrod testified that appellant never requested an attorney or inquired

whether he neede d one. Furthe r, Emiren stated that if appellant had requested

coun sel, he would have stopped all conversation and driven appellant back to

Dayton .

      The trial court denied the motion to suppress and subsequently filed a

written order detailing its findings of fact and conc lusions of law. Th e trial court

found that appellant voluntarily accompanied Emiren and Barker to Chattanooga

for an inte rview a nd “ap paren tly did not believe he was under a rrest.” The cou rt

therefore concluded that appellant was not under arrest during the questioning.

Additionally, the trial court found that appellant never requested counsel during

the interview. In so finding, the trial court stated, “Mr. Thurman has not hesitated

to lie when he thinks it benefits him. His testimony is generally self-serving and

lacks credibility.”    The trial court, therefore, conc luded that ap pellan t’s

constitutional rights were not violated and denied the motion to suppress.

                                           B.

      A trial court’s findings of fact in a sup press ion he aring w ill be up held b y this

Court unless the evidence in the reco rd prepo nderate s otherw ise.              State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). In making its determination on a motion

to suppress, the trial court “assesses the credibility of the witnesses, determines

the weight and value to be afforded the evidence adduced during the hearing,

and resolves any conflicts in the evidence .” State v. Curtis , 964 S.W.2d 604, 608

                                           -7-
(Tenn. Crim. App. 1997). The prevailing party in the trial court is entitled to the

strongest legitimate view of the evidence presented at the suppression hearing

as well as all reas onab le and legitim ate inferences which may be drawn

therefrom. State v. Odom, 928 S.W.2d at 23. However, an appellate court is not

bound by the trial court’s conclusions of law. State v. Bridges, 963 S.W.2d 487,

490 (T enn. 19 97); State v. Yeargan, 958 S.W .2d 626, 629 (Tenn. 199 7).

                                         C.

      A person is “seized ” within the mea ning o f the Fo urth A men dme nt if “in

view of all of the circu mstan ces surr oundin g the incid ent, a reasonable person

would have believed that he was not free to lea ve.” Unite d State s v. Me nden hall,

446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Examples of

circumstances which might indicate a seizure would be:

      the threatening presence of several officers, the display of a weapon
      by an officer, some physical touching of the person of the citizen, or
      the use of language or tone of voice ind icating tha t comp liance with
      the officer's req uest m ight be co mpelle d. . . . In the absence of
      some such evidence, otherwise inoffensive contact between a
      member of the public and the police cann ot, as a matter o f law,
      amount to a seizure of that person.

United States v. Menden hall, 446 U.S. at 554-55, 100 S.Ct. at 1877 (citations

omitted).

      The question in the p resent case becom es whethe r the appellant’s consent

to accompany Emiren and Barker to the TBI offices was voluntarily given or

rather was the product of duress or coercion, express or implied .          State v.

Bragan, 920 S.W.2d 227, 243 (Tenn. Crim . App. 1995 ). Under Men denh all, this

Court is instructed to look to the totality of the circumstances. 446 U.S. at 557,

100 S.Ct. at 1879.

      The presen t case is clo sely ana logous with the ca se of State v. Bragan,

supra. In that cas e, the defe ndant a nd his wife were as ked by p olice officers to

                                         -8-
accompany the officers to the police services building to give a statement

regarding the dea th of defendant’s business partner. Id. at 243. The defendant

agreed, but claimed tha t the officers would no t allow him to drive his own ca r to

the station. Id. He testified at the motion to suppress hearing that the tone of the

officer’s voice made him feel compelled to go to the police statio n. Id. When

they arrived at the station, the officers read the defend ant an d his w ife their

Miranda rights, and they ans wered th e officers’ qu estions. Id.

        This Court held that the defendant and his wife were not “ seized” at the

time they were question ed. Id. In so holding, the Cou rt noted the lack of thre ats

or coercion when the police requested that the defendant accompany them to the

station. Id. The C ourt sta ted tha t defen dant’s testim ony at th e hea ring “cle arly

indicated that he voluntarily agreed to accompany the police officers to the police

services building.”    Id. The Court determined that, although the defendant

claimed that he did not feel free to dec line the officer’s request, the totality of the

circumstances suppo rted the co nclusion that defe ndant and his wife were not

“seized.” Id.

        In the present case, Emiren and Barker requested that the appellant

accompany them to the TBI office in Chattanooga for an interview concerning the

victim’s death. They advised the appellant that the interview was voluntary, and

that he would not be compelled to accompany them. Although Appellant testified

that he believed he was under arrest, he acknowledged that when he inquired on

several occasions whether he was under arrest, Emiren and Barker responded,

“No.”    Furthermore, the appellant does not alle ge tha t he wa s phys ically

compelled to leave his place of employment with the officers.

        Under the totality of the circumstances, the record supports the trial court’s

finding that Appellant voluntarily accompanied Emiren and Barker to the TBI

                                          -9-
office. Furthermore, we agree w ith the trial court’s conclusion that the appellant

was not “seized” under the Fourth Amendment. Therefore, his statement was

properly admissible.

      This issu e is withou t merit.

                                          D.

      Appellant also argues that he made an equivocal request for counsel when

he asked Agent Emiren, “do I need an attorney?” Therefore, he maintains that

any further interrogation by Emiren should have been limited to questions

clarifying the appellant’s de sire for an attorn ey. See State v. Stephenson, 878

S.W .2d 530, 547 (Tenn. 199 4).

      The trial court found that the appellant did not make a requ est for c ouns el,

equivocal or une quivoc al. In making this d etermination, the court explicitly found

that appe llant’s te stimo ny was incred ible, thereby accrediting the testimony of the

state’s witnesses. The determination whether the appellant made a request for

an attorney, equivocal or unequivocal, is a que stion of fac t for the trial cou rt to

determine. State v. Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996). The

trial court d isbelie ved the appe llant’s te stimo ny in this regard, and the evidence

in the record does not preponderate otherwise.          As a re sult, the appe llant’s

statement was admissible, and the trial court properly denied the motion to

suppress.

      This issu e has n o merit.



                  DENIAL OF CONTINUANCE / SANCTIONS




      In his final issue, the appellant claims that he was denied his constitutional

rights to a fair tria l, due process, effective assistance of counsel and confrontation

                                         -10-
due to the state’s failure to comply with discovery rules. He argues that the trial

court committed reversible error by failing to impose sanctions against th e state

as a result of such discovery violations. He further contends tha t the trial court

erred in denying his motion for a continuance.

                                           A.

        The following sequence of events represents an apparent gross

miscommunication among the defense attorneys, the prosecuting attorneys, and

the medic al exam iner’s office. T he certifica te of death initially listed the cause of

Elizabe th Thurman’s death to be “burns.” The death ce rtificate was signed by Dr.

Charles Harlan and dated Janu ary 24, 1995. H owever, in the au topsy report

signed by Dr. Harlan and dated April 17, 1995, the cause of death was listed as

“undete rmined .” As Dr. Harlan explained at trial, due to a negative carbon

monoxide level in the victim’s blood as well as the lack of smoke or soot in the

victim’s trachea, he determined that the victim d id not die as a result of the fire.

Further, due to the severity of the burn damage, Dr. Harlan could not determine

the exac t cause o f death.

        During the autopsy process, Dr. Harlan made various pictures of the

victim’s body. Althoug h the ph otograp hs were subject to discover y pursua nt to

Tenn. R. Crim. P. 16, the defense had not received the photos as of September

1996.     On Se ptemb er 20, 19 96, Ass istant Distric t Attorney James Pope

transmitted correspond ence to Ho ward Barn well, defense counsel, that the

photog raphs w ere availa ble to view a t Dr. Harla n’s office.

        Two days later, defense counsel filed a motion for sanctions due to the

state’s failure to comply with discovery requests. On September 24, the trial

court conducted a hearing with the parties regarding the state’s failure to produce

the photographs. Stan Carney, an employee with Dr. Harlan’s office, testified

                                          -11-
that he received a request from Mr. Barnwell’s office for the autopsy photographs,

as well as enlargements and the negatives. Carney placed an orde r with Moto

Photo for the photographs plus an extra set of negatives on April 25, 1996.

The reafter , he retr ieved th e orde r and m ailed it to Barnwell’s office on June 15.

According to Mr. B arnwe ll, however, the photographs and negatives were never

received at his office. After an inquiry by the District Attorney’s office, Carney

checked Elizab eth T hurm an’s a utops y file and noticed that the original autopsy

photog raphs a nd neg atives we re missin g.

        Dr. Harla n also testified at the hearing. He stated that the photographs

depict the victim’s burned body, but were not helpful in making his autopsy

determinations. He also checked the autopsy file of the victim an d cou ld not

locate the photogra phs or neg atives. He further testified that, in his opinion,

another similarly qualified pathologist cou ld not dete rmine th e caus e of dea th

merely by viewing the autopsy photographs.2

        At the conclusion of the hearing, the trial cou rt found that Mr. Carney

mailed the photographs, but those photographs were apparently misplaced in

the mail.      Further, the court found that the loss of the photographs was

accid ental.

        Subseq uently, Mr. Ca rney lo cated the orig inal autopsy photographs and

negatives in another file the medical examiner’s office. The trial cou rt held

another hearin g, where defense counsel requested a continuance and/or the

exhumation of the decedent’s body. After reviewing the photographs which were

delivered by Mr. Carney, the trial court denied the motion for a continuance,




        2
          During the course of this hearing, Dr. Harlan agreed to send samples of the victim’s trachea as
well as the internal organs to the defense’s expert for examination, which were received by the Fulton
Coun ty Medica l Exam iner’s Off ice.

                                                 -12-
implic itly finding that the pho tographs w ere of no ben efit to either party.

Furtherm ore, the trial co urt denie d the m otion for a c ontinua nce.

                                          B.

       Tenn. R. Crim. P. 16(d)(2) provides the sanctions that a trial court may

order if a party fails to comply with discovery. The rule states:

       If at any tim e durin g the c ourse of the p rocee dings it is brough t to
       the attention of the court that a p arty ha s failed to com ply with th is
       rule, the court may order such party to permit the discovery or
       inspection, grant a continuance, or prohibit the party from
       introducing eviden ce no t disclos ed, or it may enter such other order
       as it deems just under the circum stance s. The c ourt ma y specify
       the time, place, and manner of making the discovery and inspection
       and m ay presc ribe such terms a nd con ditions as are just.

The sanction to be imposed for non-compliance must fit the circumstances of the

individual case. State v. Street, 768 S.W .2d 703, 710 (Tenn. Crim . App. 1988 ).

      The decision whether to grant a continuance is a matter that is within the

sound discretion of the trial court. State v. Griffis, 964 S.W.2d 577, 593 (Tenn.

Crim. App. 19 97); Harris v. S tate, 947 S.W.2d 156, 173 (T enn. Crim. A pp. 1996).

This Court will not interfere with the trial court’s decision in this regard unless the

evidence in the record indicates an abuse of discretion. State v. G riffis, 964

S.W.2d at 593.

      In this case, the defense was unable to view the autop sy pho tograp hs un til

one day prior to trial. Howeve r, Dr. Harlan testified that the photographs were of

no bene fit to anyo ne, an d no o ther sim ilarly qualified pathologist could ha ve

determined the caus e of dea th mere ly by viewing them. The trial court agreed.

Upon our view ing of the photographs, we reach the same conclusion. The

photographs depict the burned body of Elizabeth Thurman, and, as Dr. Harlan

described, “all they show is a lum p of black.” No am ount of time co uld transform

these photographs into material evidence.


                                          -13-
       Furthermore, contrary to appellant’s assertion, the cause of death was not

an issue at trial. The appellant testified that he accidentally choked or strangled

his wife to death and then left her in their mobile home to burn. The only issue

before the jury w as wh ether th e victim ’s dea th was accide ntal or in tention al.

       Additionally, an exhumation of the victim’s body would have been fruitless.

As Dr. Harlan testified at trial, after the autopsy has been conducted, the

dece ased ’s internal organs are removed from the body and cremated. Thus,

there would be no evidence for the defense expert to examine. Moreover, the

defense expert was provided with a tissue sample of the victim’s trachea and

interna l organ s prior to trial.

       The appellant has not demonstrated how he was prejudiced by the alleged

trial court erro rs. See State v. Griffis, 964 S.W .2d at 593 ; State v. Hix, 696

S.W.2d 22, 25-26 (Tenn. Crim. App. 1984). We, therefore, conclude that the trial

court did not ab use its discretion by denying a continuance or other sanctions as

a result of the state’s failure to co mply with discove ry.

                                           C.

       This Court further holds that the appellant’s constitutional rights were not

offended by any discovery violation. In Brady v. Maryland, 373 U.S. 83, 87, 83

S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court held that

“suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punish ment, irrespective of good fa ith or bad fa ith of the prosecu tion.” See also

Hartman v. State, 896 S.W.2d 94, 101 (Tenn. 1995). In order to establish a due

process violation u nder Brady, four prere quisites m ust be m et:

       1. The defendant must have requested the information (unless the
       evidence is obviously exculpatory, in which case the Sta te is bound
       to release the inform ation whethe r requested o r not);

                                          -14-
      2. The State must have suppressed the information;

      3. The information must have been favorable to the accused; and

      4. The inform ation m ust ha ve bee n ma terial.

State v. Edg in, 902 S.W.2d 387, 389 (Tenn. 1995). As we have determined

previously, the photographs at issue were not favorable evidence for the

appellan t. By the same token, there has been no showing that the photographs

were material evidence. As a result, there was no due process violation under

Brady v. Maryland.

      Furthermore, in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102

L.Ed.2d 281 (1988 ), the majority opinion h eld that failure to preserve poten tially

useful evidence can be a denial of due process if the defendant can show bad

faith on the part of the police. The Court noted that the presen ce of bad faith

necessa rily turns on the police's knowledge of the exculpatory nature of the

evidence at the time it is lost or mispla ced. Id. at 56, 109 S.Ct. at 336. In the

present case, the trial court found no bad faith on the part of the state, and we

see no evid ence to the c ontrar y in the record. Add itionally, the photographs can

hardly be viewed a s “poten tially useful” to th e defen se. Appellant’s due process

rights were not violated under Youngblood.

      This issu e is withou t merit.




                                        -15-
                                  CONCLUSION




      A thorough review of the briefs and rec ord in the case convinces us there

is not reversible error in this case. Accordingly, the judgment of the trial court is

affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. WELLES, JUDGE


___________________________________
JOHN K. BYERS, JUDGE




                                        -16-
