         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 3, 2002

              STATE OF TENNESSEE v. DONALD JOHNSON, JR.

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 98-06093    Bernie Weinman, Judge



                   No. W2001-02883-CCA-R3-CD - Filed January 27, 2003


A Shelby County jury convicted the defendant, Donald Johnson, Jr., of first degree murder in
perpetration of robbery, and the trial court sentenced him to life. On appeal, this court vacated the
judgment of the trial court and remanded for findings relating to the motion to suppress the
defendant’s statements to police officers. Upon remand, the trial court made additional findings and
again denied the motion. Upon reviewing the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

A.C. Wharton, Jr., Public Defender; W. Mark Ward, Assistant Public Defender (on appeal); and
Phyllis L. Aluko and Michael J. Johnson, Assistant Public Defenders (at trial), for the appellant,
Donald Johnson, Jr.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Charles W. Bell, Jr. and Rosemary Andrews,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

        The defendant was convicted of felony murder for fatally shooting a convenience store clerk
during a robbery. After his arrest, the defendant gave an oral statement and a signed, typewritten
statement admitting his involvement in the offense. The trial court denied his motion to suppress
his statements. On appeal, we remanded the case to the trial court for further findings of fact. See
State v. Donald Johnson, Jr., No. W2000-00875-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 227,
at *15 (Tenn. Crim. App. March 28, 2001, at Jackson), perm. to app. denied (Tenn. 2001). Upon
making further findings, the trial court again denied the defendant’s motion to suppress, and this
appeal ensued.
       The defendant contends the trial court erred in denying his motion to suppress his oral and
typewritten statements to police. He submits he did not knowingly and voluntarily waive his
Miranda rights prior to making his initial oral statement, and that the oral statement tainted his
subsequent typewritten statement.


                   I. TESTIMONY AT THE SUPPRESSION HEARING

       We set forth the following facts from our prior opinion:

                        At the suppression hearing, the arresting officer, Michael J.
               Clark, testified that he arrested the defendant on November 25, 1997,
               at 5:11 p.m. The defendant was not given Miranda warnings at the
               time of the arrest. Officer Clark stated that while transporting the
               suspect to the jail, he offered to stop and get the defendant something
               to eat or drink, but the defendant declined the offer. Officer Clark
               testified that the defendant was not questioned on the way to the
               station and was not questioned at the station until his mother arrived.
               Although defendant’s mother was contacted several times at work
               after defendant’s arrest, she did not arrive at the police department
               until 10:57 p.m. Officer Clark further stated that he then asked the
               defendant’s mother to speak with the defendant privately. Thereafter,
               the defendant, with his mother’s encouragement, agreed to talk to
               authorities.

                       Officer Clark stated that he gave the defendant, in the
               presence of his mother, the Miranda waiver of rights form, and the
               defendant read the waiver aloud. He claimed that the defendant had
               no trouble reading the form; the defendant signed the form at 11:35
               p.m.; and the defendant stated that he understood the form and had no
               questions regarding the waiver of his rights. Furthermore, Clark
               stated that the defendant did not appear to be under the influence of
               drugs or alcohol. Officer Clark also indicated that the defendant’s
               mother read the waiver form and said she understood it. Officer
               Clark testified that, thereafter, he conducted an oral “fact finding
               interview” which lasted about one and one-half hours.

                       After this oral interview, defendant’s formal statement was
               taken at 2:31 a.m. Officer Clark testified that the delay between the
               two statements was due to the inability to immediately secure a
               transcriptionist. Officer Clark testified that he read to the defendant
               the Miranda warnings before the typewritten statement was taken,
               and the defendant indicated he understood the warnings and wanted
               to give the statement. Both the defendant and his mother signed and
               initialed each page of the typewritten statement.

                                                -2-
        Defendant’s sister, Shamika Johnson, testified that she was
present at the defendant’s arrest, and the officers did not verbally
advise the defendant of his rights. She claimed that the defendant
was not sober at the time of the arrest; her brother could not read very
well; and he had trouble comprehending certain words.

         Defendant’s mother testified that when she arrived at the
police department, the defendant was sitting in a room with two
officers who kept telling him to “quit lying.” She claims that when
the defendant started talking, the officer said, “you’re lying . . . I
don’t want to hear that . . . I’m going to get your girlfriend and lock
her up and she’s going to have a baby in here.” She claimed that her
son had not yet been advised of his rights. Thereafter, Ms. Johnson
entered the room and told her son that she was tired and he needed to
tell the truth, or she was going to leave him in jail. She testified that
the defendant began crying, and the officers would not allow him to
have food or water or go to the bathroom. Ms. Johnson testified that
she told the officers she was tired because she had worked from 7:00
a.m. to 10:30 p.m. every night that week.

        Ms. Johnson testified that she did not read the waiver of rights
form before she signed it and did not see nor hear the defendant read
it. She also testified that the defendant “can’t read that good” and
would not have been able to understand the form if he had read it.
She further stated that the defendant had been diagnosed as
“somewhat” mentally retarded and claimed that when he becomes
agitated, the defendant cannot understand things clearly. Ms.
Johnson further testified that neither she nor the defendant read the
written statement before signing it, and that the police officer did not
read the statement to the defendant. Finally, Ms. Johnson claimed
that neither she nor defendant signed a waiver of rights form until
after the written statement was typed.

         The defendant testified that he was not informed of his rights
at the time of his arrest. He claimed the officers began asking him
questions before his mother arrived, and the officers got upset and
began hitting the table. He testified that once his mother arrived, the
officer handed him a piece of paper which he signed without reading
it. Defendant further claimed that he smoked marijuana immediately
prior to his arrest. With regard to his typed statement, the defendant
stated the officer read the questions and answers, and he shook his
head yes or no. Defendant further claimed he was not offered
anything to eat or drink, not allowed to go to the bathroom, and had
not slept for over twenty-four hours.


                                  -3-
                       Dr. Fred Steinberg, a clinical psychologist who evaluated the
               defendant, found defendant had a verbal I.Q. of 67 and an overall I.Q.
               of 69, which is in the mildly mentally retarded range. Dr. Steinberg
               further found the defendant could only read at a second grade level.
               He concluded that the defendant would be unable to read the waiver
               of rights form and comprehend what he was reading. However, he
               also concluded that if someone else read his rights to him, he would
               be more likely to comprehend them.

                        The state offered the testimony of Dr. Rebecca Caperton, a
               psychologist for the Shelby County Juvenile Court. Dr. Caperton
               testified that her testing revealed the defendant had an I.Q. of 83,
               which is borderline between the low average and mildly retarded
               ranges. She testified that it was “questionable” whether the
               defendant could read his Miranda warnings at all, due to his low
               reading level. Finally, Dr. Caperton stated that she concurred with
               Dr. Steinburg’s finding that the defendant “basically cannot read,”
               but testified that if his rights were explained to him verbally, the
               defendant would be more likely to understand them. However, Dr.
               Caperton also testified that even though she would be surprised if the
               defendant was able to read his rights aloud, she felt that, if he could
               in fact read, he could “understand verbally what is going on.”

                       The defendant offered rebuttal testimony of Dr. Lynn Zager,
               who testified that the test administered by Dr. Caperton is not an
               appropriate indicator of a person’s I.Q. Dr. Zager further testified
               that the mere ability to recognize words does not parlay into an
               understanding of what those words mean.

Donald Johnson, Jr., 2001 Tenn. Crim. App. LEXIS 227, at **4-9.


                                  II. STANDARD OF REVIEW

        The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The defendant has
the burden of establishing that the evidence contained in the record preponderates against the
findings of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App.
1975).




                                                 -4-
                                III. TRIAL COURT’S FINDINGS

        No additional evidence was received upon remand. The trial court issued written findings
in which it found the defendant was seventeen years old at the time of the offense, was in the eighth
grade, took resource classes, and had a low average to mildly mentally retarded intelligence level.
The trial court observed that the defendant seemed to understand all the court proceedings and
responded to questions in an “appropriate” manner. The trial court described Ms. Johnson as an
“intelligent and responsible person” and found that she was present when the police officers
questioned the defendant.

         The trial court specifically accredited the testimony of Dr. Caperton and found the defendant,
prior to his oral statement, was able to read the waiver form aloud and understand his Miranda
rights. It also considered the Uniform Affidavit of Indigency, which the defendant “was apparently
able to read and appropriately respond” to the questions. Finally, the trial court found that under the
totality of the circumstances, the defendant “was made aware of ” his Miranda rights and voluntarily
made the oral statement to police.

        The trial court further found a police officer read the Miranda warnings to the defendant
before he gave the typewritten statement, and that the defendant understood his rights as evidenced
by the fact that both he and his mother signed the typewritten statement.

         In addition, the trial court found the police officers did not use coercive tactics to obtain the
two statements from the defendant; the defendant made the statements after his mother requested
that he tell the truth; one and one-half hours elapsed between the two statements; although the police
detained the defendant for several hours prior to the interrogation, they were waiting for Ms.
Johnson to arrive; and Ms. Johnson was present during the interrogation.

        The trial court found the defendant was not mistreated by the police and was offered food,
beverages, and the use of restroom facilities. The trial court noted that the interrogation by the two
police officers was not excessively prolonged, and that pursuant to an officer’s request, Ms. Johnson
spoke privately with the defendant prior to the interrogation. The trial court found the defendant
wanted to tell what happened, and the oral statement was not a psychological factor which caused
the defendant to give the subsequent typewritten statement. Finally, the trial court found the
defendant was aware of, and understood, his Miranda rights prior to freely and voluntarily giving
both statements.


                                           IV. ANALYSIS

       The defendant contends he did not knowingly and voluntarily waive his Miranda rights
because he suffers from a mental deficiency, which prevented him from reading and understanding
the waiver form. The fact that one suffers from certain mental deficiencies does not necessarily
prevent that person from understanding and waiving constitutional rights. See generally, State v.
Middlebrooks, 840 S.W.2d 317, 327 (Tenn. 1992). A person with a mental deficiency may waive
his Miranda rights, if that waiver was knowingly and voluntarily made. State v. Green, 613 S.W.2d

                                                   -5-
229, 233 (Tenn. Crim. App. 1980). When determining whether an accused has voluntarily,
knowingly and intelligently waived his Miranda rights, this court must consider the totality of the
circumstances which existed when the accused waived these rights. State v. Blackstock, 19 S.W.3d
200, 208 (Tenn. 2000).

         The trial court found that the defendant “was made aware of ” and understood his Miranda
rights, and that he voluntarily waived his rights and gave the oral statement to the police. In its
findings, the trial court implicitly accredited the testimony of Officer Clark, who stated the
defendant read the waiver form aloud and signed it prior to making the oral statement. Officer Clark
testified the defendant did not have trouble reading the waiver form, and that the defendant said he
understood the form and did not have any questions. The trial court specifically accredited the
testimony of Dr. Caperton, who opined that if the defendant read the Miranda warnings aloud, he
could likely understand them.

        The trial court also considered the Uniform Affidavit of Indigency completed by the
defendant. However, neither party presented evidence during the suppression hearing concerning
the completion of the affidavit. Although the affidavit is in the record, we must agree with the
defendant’s contention that the record does not reveal the circumstances under which it was
completed. A court may take judicial notice of court records in the same case. Delbridge v. State,
742 S.W.2d 266, 267 (Tenn. 1987). However, Tennessee Rule of Evidence 201(b) only permits
judicial notice of facts “not subject to reasonable dispute.” See Neil P. Cohen, et al., Tennessee
Law of Evidence § 2.01 [4][d] (4th ed. 2000). Although the trial court could take judicial notice
of the existence of the affidavit in the court records, the relevant inquiry is the circumstances under
which it was completed. These circumstances are subject to reasonable dispute, are not “generally
known,” and do not qualify as judicially noticeable facts. See Tenn. R. Evid. 201(b). Nevertheless,
although we conclude the trial court erred in considering the affidavit, the trial court’s other factual
findings amply support its ruling that the defendant was aware of and voluntarily waived his
Miranda rights prior to giving the oral statement.

        Regardless, we conclude the defendant’s subsequent typewritten statement was properly
admitted at trial. If law enforcement officials extract an illegal confession from a defendant, there
is a rebuttable presumption that a subsequent confession is tainted by the initial illegality, even if
the defendant received proper Miranda warnings prior to making the subsequent confession. State
v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992). However, the prosecution may overcome the
presumption by establishing “that the taint is so attenuated as to justify admission of the subsequent
confession.” Id. (citations omitted).

       Courts must examine whether the circumstances surrounding the initial illegality prevented
the defendant from subsequently making a knowing and intelligent waiver of his rights and
voluntarily confessing to his involvement in the offense. Id. In deciding whether a subsequent
confession is admissible against a defendant, courts should consider the following factors:

                1. The use of coercive tactics to obtain the initial, illegal confession
                and the causal connection between the illegal conduct and the
                challenged, subsequent confession;

                                                  -6-
               2. The temporal proximity of the prior and subsequent confessions;
               3. The reading and explanation of Miranda rights to the defendant
               before the subsequent confession;
               4. The circumstances occurring after the arrest and continuing up
               until the making of the subsequent confession including, but not
               limited to, the length of the detention and the deprivation of food,
               rest, and bathroom facilities;
               5. The coerciveness of the atmosphere in which any questioning took
               place including, but not limited to, the place where the questioning
               occurred, the identity of the interrogators, the form of the questions,
               and the repeated or prolonged nature of the questioning;
               6. The presence of intervening factors including, but not limited to,
               consultations with counsel or family members, or the opportunity to
               consult with counsel, if desired;
               7. The psychological effect of having already confessed, and whether
               the defendant was advised that the prior confession may not be
               admissible at trial;
               8. Whether the defendant initiated the conversation that led to the
               subsequent confession; and
               9. The defendant’s sobriety, education, intelligence level, and
               experience with the law, as such factors relate to the defendant’s
               ability to understand the administered Miranda rights.

Id. at 919-20. No single factor is determinative. Id.

       The trial court found that even if the oral statement should be suppressed, the typewritten
statement would still be admissible. The trial court carefully considered each of the factors listed
above in making its determination. The evidence does not preponderate against the trial court’s
findings. We conclude the trial court did not err in making this determination.

       Because the trial court properly admitted the subsequent typewritten statement at trial, we
conclude in accordance with our prior opinion that even if the trial court erred in admitting the oral
statement, it would be harmless. See Donald Johnson, Jr., 2001 Tenn. Crim. App. LEXIS 227, at
*21. The oral statement was limited compared to the detailed and incriminating typewritten
statement. Id.

       Based upon our review of the record, we affirm the judgment of the trial court.



                                                        ____________________________________
                                                        JOE G. RILEY, JUDGE




                                                 -7-
