            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                          August 11, 2004 Session

              STATE OF TENNESSEE v. GARNER DWIGHT PADGETT

                          Appeal from the Criminal Court for Putnam County
                                No. 01-0450   Leon Burns, Jr., Judge



                        No. M2003-00542-CCA-R3-CD - Filed October 21, 2004


The defendant, Garner Dwight Padgett, was convicted of first degree premeditated murder. The trial
court imposed a sentence of life imprisonment. In this appeal of right, the defendant contends that
the trial court erred by failing to grant a mistrial after two jurors observed him in custody, by failing
to instruct on the lesser included offenses of aggravated assault and assault, and by failing to
suppress his confession. He also challenges the sufficiency of the evidence and argues that there was
prosecutorial misconduct during closing argument. The judgment of the trial court is affirmed.

                       Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.

David Brady, District Public Defender, and John B. Nisbet, III, Assistant Public Defender, for the
appellant, Garner Dwight Padgett.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General;
William E. Gibson, District Attorney General; and David A Patterson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                     OPINION

        The twenty-six-year-old victim, Matthew Eric Smith, who lived with his parents in
Cumberland County, was last seen alive at approximately 7:00 p.m. on Friday, March 2, 2001.
Several days later, the victim’s father, Frank Smith, saw the victim’s vehicle, a red convertible
Mustang, being driven by a woman later identified as Vicki1 Eldridge, the wife of the defendant. The
family reclaimed the vehicle six days after the victim’s disappearance and on the next day, Sharon
Smith, the victim’s mother, reported to the authorities that the victim was missing.



        1
            Her name also appears in the record spelled “Vicky.”
        The body was discovered in a remote wooded area known as Glade Creek. Officers found
two .22 shell casings near the body and a bullet embedded in the left side of the victim’s jacket hood.
During the course of the investigation, TBI Agent Bob Krofssik questioned the defendant. After
making several conflicting claims, the defendant acknowledged having lied to the agent and
confessed to the murder. The defendant admitted having stolen a .22 caliber Browning pistol from
Steve Golden approximately two weeks before the shooting. He stated that he met the victim at
Vicki Eldridge’s trailer on a Saturday night and initially introduced himself as her cousin. The
defendant recalled that the victim, who never identified himself, told him that “Vicky had his damn
car and was out running around” and complained that he had been abandoned in the woods by “one
of the Robbins boys.” The defendant informed the officer that he and the victim had smoked some
methamphetamine from a pipe and that he later drove Ms. Eldridge’s truck as the victim provided
directions to “some [more methamphetamine] stashed in the woods.” The defendant told the agent
that the victim, who claimed to be having a sexual relationship with Ms. Eldridge, “dogg[ed]” her
and described her as a “whore.” The defendant contended that when he then informed the victim
that he was Ms. Eldridge’s husband so that “he would shut up about Vicky,” the victim continued
to “talk[] bad” about her. According to the defendant, the two men got out of the truck and the
victim “kick[ed] leaves around” and “bent over at the waist” to look for the drugs. The defendant
informed the officer that he got “spooked,” pulled the gun from his belt, and then shot the victim
above the right ear. The defendant recalled that he drove to a friend’s residence where he admitted
that he had “killed a boy.” He also informed Agent Krofssik that several hours later he called the
sheriff’s department and asked for an officer to give him a ride. According to the defendant, he then
threw the gun away in a swampy, wooded area off the side of a roadway. He claimed that his actions
had been motivated by his love for Ms. Eldridge and his fear of the victim.

        Agent Krofssik collected four .22 caliber shell casings at the residence of Jack Baker, where
the defendant claimed to have fired the stolen weapon. Although the agent was unable to find
methamphetamine near the body, he confirmed that a glass pipe had been in the victim’s possession
at the time of his death. At trial, the agent testified that officers found a Browning .22 caliber
automatic pistol on the side of Highway 70 in the area where the defendant said he had disposed of
the murder weapon.

        Cumberland County Sheriff’s Deputy Scott Jones, who at 2:00 a.m. on the morning of the
shooting had been dispatched to Highway 70 North in Cumberland County to assist a 911 caller
requesting a ride, drove the defendant to Sandy Creek Road. It was his opinion that the defendant,
who was carrying a cellular phone and a duffel bag, was not under the influence of any intoxicants.
The deputy recalled that the defendant claimed to have been involved in an argument with his wife
and left “before things had got too heated.”

        In the two months prior to the murder, the defendant had helped James Ralph Bryant with
a construction project at the residence of Steve Golden, in Nashville. During that time, the
construction crew lived in the empty Golden residence and the defendant had confided that he
planned to kill his wife’s lover, explaining that “he wouldn’t go to jail long because he’d get out on
his being mentally ill or sick.” According to Bryant, the defendant failed to report for work during


                                                 -2-
the last ten days to two weeks of the job. Bryant identified the Browning .22 recovered from the side
of Highway 70 as being similar to a gun that he had purchased and then later traded to Steve Golden.

         Bryant’s wife, Connie Bryant, confirmed that approximately three weeks before the body was
found, the defendant told her that his wife was having an affair and that he intended to kill her lover.
When she counseled the defendant against his plan, he replied that “he would never go to jail over
killing somebody because he’d been in Moccasin Bend before and that’s where they would send him
again.”

        At trial, Steve Golden testified that the Browning .22 recovered from the roadside, which had
a distinguishing yellow mark, appeared to be his gun. Two to three weeks before the body was
found, Jack Baker had seen the defendant with a black semi-automatic .22 caliber pistol with a four-
to-six-inch barrel. He remembered that he and the defendant had fired the weapon and that officers
later collected the spent shells from the Baker property.

        After testing the pistol and spent shells, Agent Shelly Betts, a firearms examiner with the
TBI, determined that the shells found at the crime scene and the Baker property were consistent with
Winchester manufacture and had been fired by the Browning pistol. Agent Betts concluded that the
bullet recovered from the victim’s hood and the two from the body had the same “class
characteristics” as the Browning and that they were also consistent with Winchester manufacture.

       Dr. Charles Harlan, who performed the autopsy, testified at trial that the victim had three
gunshot wounds to the head, any one of which would have been fatal. Two of the three bullets were
found in the body. Decomposition of the body was consistent with its having been outdoors for
approximately one week during the month of March. The blood tests indicated that the victim had
used methamphetamine before his death.

        The defense did not offer any testimony at the trial.

                                                     I

          Initially, the defendant argues that the trial court erred by not granting a mistrial on the basis
that two jurors saw him in custody during the course of the trial. After a lunch break, one of the
female jurors asked the bailiff about a door leading to the lock-up area. The bailiff answered that
it led to “where [they] keep the people that come[] up from the jail” and offered her and another juror
the opportunity to look. When he opened the door, the area was empty. In the meantime, the
elevator doors opened as a jailer was escorting the defendant to the courtroom. The defendant, who
was dressed in a sport coat and tie, was not handcuffed, shackled or restrained in any way. The jailer
quickly closed the elevator doors.

      Due process requires that the accused be afforded the “physical indicia of innocence.”
Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973). The use of shackles during a trial, for
example, has been specifically condemned absent certain safeguards designed to assure that it would


                                                    -3-
not influence the issue of innocence or guilt. Willocks v. State, 546 S.W.2d 819, 822 (Tenn. Crim.
App. 1976); see generally State v. Smith, 639 S.W.2d 677 (Tenn. Crim. App. 1982).

         “The entry of a mistrial is appropriate when the trial cannot continue for some reason, or if
the trial does continue, a miscarriage of justice will occur.” State v. McPherson, 882 S.W.2d 365,
370 (Tenn. Crim. App. 1994). The decision to grant a mistrial is within the sound discretion of the
trial court, and this court will not disturb the trial court’s determination unless a clear abuse of
discretion appears on the record. Id.

        Immediately upon learning of the event at issue, the trial court conducted a full hearing on
the matter. The two jurors swore under oath that their judgment would not be affected. Because
other jurors were aware that the two jurors had seen the defendant in the elevator, the trial court
provided a curative instruction. All of the jurors agreed to disregard the defendant’s brief presence
in the lockup area and otherwise follow the instructions of the trial court. Because there is a
presumption that the jurors followed the instructions of the trial court and because the record does
not establish that the defendant was unduly prejudiced, there was no abuse of discretion by the denial
of a mistrial.

                                                   II

       Next, the defendant contends that the trial court erred by not instructing the jury on the lesser
included offenses of aggravated assault and assault. The state asserts that the offenses are not lesser
includeds of first degree murder and that any error would have been harmless beyond a reasonable
doubt.

        The question of whether a given offense should be submitted to the jury as a lesser included
offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (citing
State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law
and fact is de novo with no presumption of correctness. Id.; see also State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). The trial court has a duty “to give a complete charge of the law applicable to the
facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P.
30.

        In Burns, our supreme court adopted a modified version of the Model Penal Code in order
to determine what constitutes a lesser included offense:

       An offense is a lesser included offense if:
       (a) all of its statutory elements are included within the statutory elements of the
       offense charged; or
       (b) it fails to meet the definition in part (a) only in the respect that it contains a
       statutory element or elements establishing
       (1) a different mental state indicating a lesser kind of culpability; and/or



                                                  -4-
        (2) a less serious harm or risk of harm to the same person, property or public interest,
        or
        (c) it consists of
        (1) facilitation of the offense charged or of an offense that otherwise meets the
        definition of lesser included offense in part (a) or (b); or
        (2) an attempt to commit the offense charged or an offense that otherwise meets the
        definition of lesser included offense in part (a) or (b); or
        (3) solicitation to commit the offense charged or an offense that otherwise meets the
        definition of lesser included offense in part (a) or (b).

6 S.W.3d at 466-67.

        The trial court has a duty to instruct the jury as to a lesser included offense if: (1) reasonable
minds could accept the offense as lesser included; and (2) the evidence is legally sufficient to support
a conviction for the lesser included offense. Burns, 6 S.W.3d at 469; see also State v. Langford, 994
S.W.2d 126, 128 (Tenn. 1999). Moreover, our supreme court has held that trial courts “must provide
an instruction on a lesser-included offense supported by the evidence even if such instruction is not
consistent with the theory of the [s]tate or of the defense. The evidence, not the parties, controls
whether an instruction is required.” State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002). Our high
court observed that the “jury is not required to believe any evidence offered by the [s]tate,” and held
that the authority of the jury to convict on a lesser-included offense may not be taken away, even
when proof supporting the element distinguishing the greater offense from the lesser offense is
uncontroverted. Id. at 189.

        In support of his position, the defendant cites State v. Paul Graham Manning, No. M2002-
00547-CCA-R3-CD (Tenn. Crim. App., at Nashville, Feb. 14, 2003), perm. app. denied (Tenn. Dec.
15, 2003), in which a panel of this court held that the trial court erred by failing to instruct the jury
on aggravated assault and assault as lesser included offenses of premeditated murder. While finding
the error to be harmless beyond a reasonable doubt, the court ruled in Manning as follows:

        As set forth above, first degree premeditated murder is the “premeditated and
        intentional killing of another.” An aggravated assault is committed, on the other
        hand, when the accused intentionally, knowingly, or recklessly causes serious bodily
        injury to another. Similarly, an assault is committed when one “[i]ntentionally,
        knowingly or recklessly causes bodily injury to another.” The mens rea of intentional
        includes the mens reas of knowing and reckless. A killing certainly includes serious
        bodily injury (as well as “mere” bodily injury). Thus, all of the statutory elements
        of these forms of aggravated assault and assault are included within the statutory
        elements of first degree premeditated murder, and they are therefore lesser-included
        offenses under part (a) of the Burns test. The trial court therefore erred when it failed
        to instruct the jury on these forms of aggravated assault and assault.

Manning, slip op. at 7 (citations and footnote omitted).


                                                   -5-
        The majority of a separate panel of this court, however, has held that aggravated assault and
assault are not lesser included offenses of premeditated murder. In State v. John C. Walker, III, No.
M2003-01732-CCA-R3-CD (Tenn. Crim. App., at Nashville, Aug. 11, 2004), the rationale for the
holding in Manning was rejected:

                An accused in a criminal prosecution has the right to receive advance notice
        of the charges he or she must defend upon. Tenn. Const. art. 1, § 9. When a
        defendant is indicted for murder, the defendant is placed upon notice that he or she
        will be required to answer to the charge or some lesser degree of homicide as raised
        by the proof at trial. Criminal homicide is defined as the unlawful killing of another
        person, which may be first degree murder, second degree murder, voluntary
        manslaughter, criminally negligent homicide, or vehicular homicide. Tenn. Code
        Ann. § 39-13-201. Aggravated assault is an assault accompanied by serious bodily
        injury or use of a deadly weapon. Tenn. Code Ann. § 39-13-102(a). Burns part (a)
        provides that aggravated assault is a lesser if all the “statutory elements are included
        within the statutory elements” of first degree murder. Burns, 6 S.W.3d at 466. The
        indictment in this case alleges an intentional and premeditated killing of the victim.
        It contains no reference to serious bodily injury or use of a deadly weapon. Clearly,
        none of the elements of aggravated assault are alleged in the indictment nor are these
        elements included within the statutory elements of first degree murder. Likewise, the
        elements of the various forms of assault, i.e., (1) bodily injury, (2) fear of imminent
        bodily injury and (3) physical contact regarded as extremely offensive or provocative,
        are not alleged in the indictment and are clearly not elements of first degree murder.
        See Tenn. Code Ann. § 39-13-101 (a)(1)-(3). For this reason, we conclude that
        neither aggravated assault nor assault are lesser included offenses of first degree
        murder under Burns. Thus, the trial court did not err in failing to charge these crimes
        to the jury.

Slip op. at 11-12.

        Whether the rule in Manning or Walker is applicable, the defendant here would not be
entitled to a new trial for failure to charge aggravated and simple assault. If error at all, the error was
harmless beyond a reasonable doubt. See State v. David Wayne Smart, No. M2001-02881-CCA-R3-
CD (Tenn. Crim. App., at Nashville, May 13, 2003) (holding that any error by failing to charge
aggravated assault and assault as lesser included offenses of premeditated murder was harmless
beyond a reasonable doubt). In this case, the trial court instructed the jury on the charged offense
of premeditated murder as well as the lesser included offenses of second degree murder, voluntary
manslaughter, reckless homicide, and criminally negligent homicide. By finding the defendant guilty
of premeditated murder, the jury implicitly rejected four lesser included offenses. See Allen, 69
S.W.3d at 189; Manning, slip op. at 8. The evidence of murder was simply overwhelming. The
proof established that the defendant drove the victim to a remote area, shot him in the head three
times, and then abandoned the body. Under these circumstances, it is our conclusion that any error
by virtue of the failure to charge either aggravated assault or simple assault was harmless beyond a


                                                   -6-
reasonable doubt.

                                                   III

         The defendant next argues that the evidence was insufficient to establish premeditation. On
appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence
and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that
the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992).

        First degree murder is defined as:

               (1) A premeditated and intentional killing of another;
               (2) A killing of another committed in the perpetration of or attempt to
        perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,
        aggravated child abuse, aggravated child neglect or aircraft piracy; or
               (3) A killing of another committed as a result of the unlawful throwing,
        placing or discharging of a destructive device or bomb.

Tenn. Code Ann. § 39-13-202(a) (Supp. 2000). Tennessee Code Annotated section 39-13-202(d)
provides that:

        [P]remeditation is an act done after the exercise of reflection and judgment.
        “Premeditation” means that the intent to kill must have been formed prior to the act
        itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused
        for any definite period of time. The mental state of the accused at the time the
        accused allegedly decided to kill must be carefully considered in order to determine
        whether the accused was sufficiently free from excitement and passion as to be
        capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (1997). Whether the evidence was sufficient depends entirely on
whether the state was able to establish beyond a reasonable doubt the element of premeditation. See
State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).


                                                   -7-
        Our supreme court has held that the presence of premeditation is a question for the jury and
may be inferred from the manner and circumstances of the killing. See State v. Suttles, 30 S.W.3d
252, 261 (Tenn. 2000); State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). Moreover, it is well-
established that premeditation may be proved by circumstantial evidence. See, e.g., State v. Brown,
836 S.W.2d 530, 541 (Tenn. 1992). Our high court has identified a number of circumstances from
which the jury may infer premeditation: (1) the use of a deadly weapon upon an unarmed victim; (2)
the particular cruelty of the killing; (3) the defendant's threats or declarations of intent to kill; (4) the
defendant's procurement of a weapon; (5) any preparations to conceal the crime undertaken before
the crime is committed; (6) destruction or secretion of evidence of the killing; and (7) a defendant's
calmness immediately after the killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); Pike,
978 S.W.2d at 914-15. This list, however, is not exhaustive and serves only to demonstrate that
premeditation may be established by any evidence from which the jury may infer that the killing was
done “after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d); see Pike,
978 S.W.2d at 914-15; Bland, 958 S.W.2d at 660.

         One treatise suggests that premeditation may be inferred from events that occur before and
at the time of the killing:

        Three categories of evidence are important for [the] purpose [of inferring
        premeditation]: (1) facts about how and what the defendant did prior to the actual
        killing which show he was engaged in activity directed toward the killing, that is,
        planning activity; (2) facts about the defendant's prior relationship and conduct with
        the victim from which motive may be inferred; and (3) facts about the nature of the
        killing from which it may be inferred that the manner of killing was so particular and
        exacting that the defendant must have intentionally killed according to a
        preconceived design.

2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003) (emphasis in original).

        In this case, there was evidence that the defendant, aware that his wife was having an affair,
had voiced to both Ralph and Connie Bryant that he intended to kill her lover. The Bryants
attempted to dissuade him from his plans. The was proof that two or three weeks before the
shooting, the defendant stole the .22 caliber Browning pistol from the Golden residence just before
quitting a construction job in Nashville and returning to Putnam County. The defendant admitted
shooting the victim and later disposing of the murder weapon alongside a rural highway. That the
defendant had the presence of mind to call 911 for a ride from a sheriff’s deputy without arousing
suspicion suggests a calm demeanor after the crime. In our view, there is sufficient evidence in the
record to support a finding of premeditation.




                                                    -8-
                                                  IV

       Next, the defendant contends that the trial court should have suppressed his statements to
police because the circumstances establish that they were coerced. The state argues that the
defendant waived the issue by failing to timely raise it in a motion for new trial.

       Tennessee Rule of Criminal Procedure 33(b), which governs the time for filing a motion for
new trial, provides as follows:

               A motion for a new trial shall be made in writing, or if made orally in open
       court shall be reduced to writing, within thirty days of the date the order of sentence
       is entered. The [c]ourt shall upon motion allow amendments liberally until the day
       of the hearing of the motion for a new trial.

        The record reflects that the judgment of conviction was filed on October 8, 2002. The
defendant’s motion for new trial, filed two days later, does not include as a ground for relief that the
trial court failed to suppress the statements. At the hearing on the motion for new trial some four
months later, however, defense counsel raised the issue and the trial court instructed him to amend
the motion for new trial. An amended motion was filed on that date. The state did not object.

        There was a full hearing on the motion to suppress. Detective Jerry Dale Abston of the
Putnam County Sheriff’s Department testified that he witnessed statements taken from the defendant
by Agent Krofssik on March 24 and March 27, both of which were made in the conference room of
the justice center. He recalled that the defendant, who received no promises of leniency, was
cooperative, responding coherently and without difficulty. The detective confirmed that Agent
Krofssik had provided the defendant with Miranda warnings and that the defendant never indicated
that he wished to stop the interviews or have an attorney present. The detective recalled that the
defendant acknowledged that he had been drinking prior to the March 24th interview but denied the
use of any drugs. It was the detective’s opinion that the defendant was not intoxicated at that time.
Detective Abston testified that Agent Krofssik wrote out the defendant’s statement longhand and that
the statement was then read back to the defendant, who was given the opportunity to make
corrections. He had no recollection of any request by the defendant to tape the interviews and
insisted that the defendant had, in fact, declined to be taped because the recorder made him
uncomfortable. The detective acknowledged that at the time of the first interview, the defendant
mentioned that he had bipolar disorder. He remembered that the defendant repeatedly denied the
need for any medication or treatment. Detective Abston denied that either he or Agent Krofssik had
threatened to throw the defendant down the stairwell at the justice center or had otherwise coerced
the confession.

         Agent Krofssik corroborated the testimony of Detective Abston. He recalled that on the
second interview day, the defendant mentioned that he was not taking his medication but “indicated
that it didn’t affect his understanding of what our conversation was about.”



                                                  -9-
        Eric Engum, a Ph.D. psychologist, performed psychological and neuropsychological
evaluations of the defendant. He determined that the defendant was first treated for alcohol and drug
abuse in 1994 and was hospitalized on an emergency basis in February of 2000 when he began
experiencing, among other things, severe mood swings, temper outbursts, and disorganized thought
processes. The medical history of the defendant indicated bipolar affective disorder and
polysubstance abuse. Engum testified that shortly after the arrest of the defendant, he was diagnosed
with schizo-affective disorder, bipolar type, and put on a medication regiment consisting of Effexor,
Seroquel, and Eskalith, which lessened his symptoms. He found the defendant had difficulty
sustaining concentration, organizing his thoughts, and engaging in abstract reasoning. According
to Engum, he diagnosed the defendant as having bipolar disorder in partial remission, alcohol
dependence in early full remission, and a mixed personality disorder with avoidant, depressive, and
paranoid features. With regard to the defendant’s ability to voluntarily waive his rights, he testified
that “knowing what we know about [bipolar disorder] symptoms, it would seriously raise a question
in my mind as to whether he was able to make a voluntary waiver. And that’s as far as I can go.”
During cross-examination, Engum acknowledged that he had found evidence of symptom
magnification, or “reporting symptoms . . . in stronger terms than might be uncovered upon objective
review.”

        The defendant testified at the suppression hearing that he “really started drinking hard” in
1988 and that he first received treatment for alcoholism in 1994 at Plateau when he was convicted
of third offense driving under the influence. He stated that although he had also received treatment
at McFarland and New Life Lodge, his problems continued and, in February of 2000, he was
committed to Lakeshore Mental Heath Center in Knoxville, where he stayed for five days. The
defendant contended that on the day of his arrest, he drank a gallon of whiskey and smoked
methamphetamine. According to the defendant, when Detective Abston telephoned him that there
was a warrant for his arrest, he responded that he had been drinking and would turn himself in to
Officer Bill Parrott. He claimed that the last thing he recalled was getting into the back seat of
Officer Parrott’s cruiser, unable to walk, and that the police “didn’t even book [him].” The
defendant testified that he remembered the second set of interviews with police “somewhat,” but that
he was not feeling well because he had been hallucinating, “seeing snakes in [his] walls and spiders
coming out of [his] drain.” He insisted that he was afraid that Detective Abston, and Agent Krofssik
were going to throw him down the stairwell because one of them had mentioned that “[i]t was a long
ways down.” The defendant acknowledged, however, that early in the interview process, he took
breaks in the conference room rather than the stairwell. He claimed that he had asked for the
interviews to be tape recorded. While acknowledging that he had signed and initialed the written
statements, he contended that Agent Krofssik had not read the statements to him and that the
documents were only drafts.

       The trial court denied the motion to suppress, finding that the defendant’s statements were
voluntary and ruling as follows:

       [W]e are dealing with a question of the voluntariness of a confession and the totality
       of the circumstances is the standard. Under the circumstances of how the statement


                                                 -10-
       was allegedly made on the 27th, there would be nothing to indicate from the testimony
       of [the defendant] or from the testimony of the officers that something transpired that
       would over bear the will of the accused in this case in some sort of a threatening way.
                                             *       *      *
                I don’t think anybody can dispute the diagnosis. . . . But that in itself does not
       render any statement given to be voluntary or any waiver to be unknowing.
                And all of the proof here that I’ve heard this morning would indicate that the
       defendant understood his rights. He waived his rights. And he gave a statement that
       he signed off on those rights. . . .
                And . . . the totality [of the] the circumstances would indicate . . . that there
       was a voluntary and knowing waiver of the rights and a voluntary statement given.
       ...

The trial court also questioned the credibility of the defendant, observing that he appeared to “have
some selective memory loss.”

        It is the duty of the trial judge to determine the voluntariness and the admissibility of a
defendant’s pretrial statement. State v. Pursley, 550 S.W.2d 949, 952 (Tenn. 1977). The trial court’s
determination that a confession was given knowingly and voluntarily is binding on the appellate
courts unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). Questions about witness credibility and “resolution of conflicts in the evidence are matters
entrusted to the trial judge.” Id. Testimony presented at trial may be considered by an appellate
court in deciding the propriety of the trial court’s ruling on a motion to suppress. State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998). If the “greater weight” of the evidence supports the court’s
ruling, it will be upheld. Id. Yet, this court must conduct a de novo review of the trial court’s
application of law to fact. State v. Bridges, 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan, 958
S.W.2d 626 (Tenn. 1997).

        In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court ruled that
before a custodial interrogation, police officers must advise a defendant of the right to remain silent
and the right to counsel. If these warnings are not given, any statement elicited from a defendant is
not admissible in trial. Dickerson v. United States, 530 U.S. 428 (2000); Stansbury v. California,
511 U.S. 318, 322 (1994). A defendant’s rights to counsel and against self-incrimination may be
waived as long as the waiver is made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.
at 479; State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). In order for an accused to effect
a waiver, he must be adequately appraised of his right to remain silent and the consequence of
deciding to abandon it. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In determining
whether a confession was voluntary and knowing, the totality of the circumstances must be
examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

       Although three handwritten statements signed by the defendant are in the record, only the last
statement was introduced at trial. The statement, which has been summarized in this opinion, was
taken on March 27 at 11:38 p.m., shortly after the defendant asked to speak with the officers for a


                                                  -11-
second time that evening. By refusing to suppress, the trial court implicitly accredited the testimony
of Detective Abston and Agent Krofssik that the defendant was coherent and responsive at the time
of the interview, that he understood his Miranda rights, and that he knowingly and voluntarily
waived those rights. A completed TBI Miranda warnings form bearing the defendant’s signature
appears in the record. The trial court specifically found that the defendant’s testimony lacked
credibility, the defendant having “selective memory loss” as to the circumstances surrounding his
arrest and his sworn statements to the officers. In our view, the evidence does not preponderate
against the trial court’s determination that the statement was knowingly and voluntarily provided to
the interrogating officers.

                                                   V

       Finally, the defendant contends that the prosecutor was guilty of misconduct during the
closing argument. He specifically complains about the following comments:

                You know . . . I’m looking at that scene . . . and I can’t think of a better place
       to kill somebody. It’s ten miles from nowhere, out in the boonies, and then almost
       100 yards, almost 300 feet down a dirt road where there’s no chance of being seen.
       There’s no chance of having witnesses. I can’t think of a better place in the whole
       wide world to take somebody to kill them if that’s what your purpose is.
                Not a good place to hide your dope. People hide dope off of their property
       but close to their home. They don’t have to drive.
                And isn’t it interesting too who was doing the driving? The defendant was
       driving the truck that night and his victim was in the passenger seat. And I suggest
       to you that you can assume that the defendant was in there at gunpoint being driven
       to – (Interrupted)

(Emphasis added.)

        Trial courts have substantial discretionary authority in determining the propriety of final
argument. Although counsel is generally given wide latitude, courts must restrict any improper
argument. Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978). Generally speaking, closing
argument “must be temperate, must be predicated on evidence introduced during the trial of the case,
and must be pertinent to the issues being tried.” State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978).
For example, our supreme court has ruled that argument that “that defense counsel was ‘trying to
throw sand in the eyes of the jury’ and ‘blowing smoke in the face of the jury’” was improper
argument. State v. West, 767 S.W.2d 387, 395 (Tenn. 1989). To merit a new trial, however, the
argument must be so inflammatory or improper as to affect the verdict. Harrington v. State, 215
Tenn. 338, 385 S.W.2d 758 (1965). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.
1976), this court articulated the factors to be considered in making that determination:

       (1) the conduct complained of viewed in the context and the light of the facts and
       circumstances of the case;


                                                  -12-
       (2) the curative measures undertaken by the court and the prosecution;
       (3) the intent of the prosecutor in making the improper statements;
       (4) the cumulative effect of the improper conduct and any other errors in the record;
       and
       (5) the relative strength or weakness of the case.

      Most restrictions during final argument are placed upon the state. That is based in great
measure upon the role of the prosecutor in the criminal justice system:

       [The prosecutor] is the representative not of an ordinary party to a controversy, but
       of a sovereignty whose obligation to govern impartially is as compelling as its
       obligation to govern at all; and whose interest, therefore, in a criminal prosecution
       is not that it shall win a case, but that justice shall be done. As such, he is in a
       peculiar and very definite sense the servant of the law, the two fold aim of which is
       that guilt shall not escape or innocence suffer. He may prosecute with earnestness
       and vigor, indeed he should do so. But, while he may strike hard blows, he is not at
       liberty to strike foul ones. It is as much his duty to refrain from improper methods
       calculated to produce a wrongful conviction as it is to use every legitimate means to
       bring about a just one. It is fair to say that the average jury, in a greater or lesser
       degree, has confidence that these obligations, which so plainly rest upon the
       prosecuting attorney, will be faithfully observed. Consequently, improper
       suggestions, insinuations, and especially assertions of personal knowledge are apt to
       carry much weight against the accused when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88 (1935); see also Judge, 539 S.W.2d at 344-45. Thus, the
state must refrain from argument designed to inflame the jury and should restrict its commentary to
matters in evidence or issues at trial. The prosecutor must not express a personal belief or opinion,
but whether that qualifies as misconduct often depends upon the specific terminology used. For
example, argument predicated by the words “I think” or “I submit” does not necessarily indicate an
expression of personal opinion. United States v. Stulga, 584 F.2d 142 (6th Cir. 1978). The
prosecution is not permitted to reflect unfavorably upon defense counsel or the trial tactics employed
during the course of the trial. See Dupree v. State, 219 Tenn. 492, 410 S.W.2d 890 (1967); Moore
v. State, 159 Tenn. 112, 17 S.W. 30 (1929); Watkins v. State, 140 Tenn. 1, 203 S.W. 344 (1918);
McCracken v. State, 489 S.W.2d 48 (Tenn. Crim. App. 1972). Although there may be no
commentary on the consequences of an acquittal, the prosecution may point out the gravity of a
particular crime and emphasize the importance of law enforcement. See State v. Dakin, 614 S.W.2d
812 (Tenn. Crim. App. 1980); Bowling v. State, 3 Tenn. Crim. App. 176, 458 S.W.2d 639 (1970).

      This court has observed that there are five generally recognized areas of prosecutorial
misconduct related to closing argument:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the
       evidence or mislead the jury as to the inferences it may draw.


                                                -13-
        2. It is unprofessional conduct for the prosecutor to express his personal belief or
        opinion as to the truth or falsity of any testimony or evidence or the guilt of the
        defendant.
        3. The prosecutor should not use arguments calculated to inflame the passions or
        prejudices of the jury.
        4. The prosecutor should refrain from argument which would divert the jury from its
        duty to decide the case on the evidence, by injecting issues broader than the guilt or
        innocence of the accused under the controlling law, or by making predictions of the
        consequences of the jury’s verdict.
        5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue facts
        outside the record unless the facts are matters of common public knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

         Because there was no evidence that the defendant held the victim at gunpoint at any time, the
prosecutor’s suggestion that the jury assume that fact was improper. Nevertheless, it does not require
the grant of a new trial. While overstating the supporting facts, the argument did not qualify as a
gross exaggeration. Defense counsel objected immediately, interrupting the state’s attorney, and the
trial court sustained the objection, instructing the jury to disregard the remark. There is no indication
that the prosecutors’s error was intentional or meant to unfairly prejudice the defendant. An
overzealous or overly partisan interpretation of the evidence often discredits the validity of the
argument. Evidence of guilt included confessions to the police and others. Application of the
Judge factors favor the state. A new trial is not warranted under these circumstances.

        Accordingly, the judgment of the trial court is affirmed.



                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




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