        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 14, 2012

                  STATE OF TENNESSEE v. JAMAAL EDDIE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 0906905     Chris B. Craft, Judge


                 No. W2011-00966-CCA-R3-CD - Filed June 18, 2012


After a jury trial, the defendant, Jamaal Eddie, was convicted of aggravated child abuse and
of first degree murder committed in the perpetration of aggravated child abuse. He is serving
an effective life sentence. The defendant appeals, contending that the evidence was
insufficient to support the verdict of first degree felony murder, that photographs of the
victim were admitted into evidence in error, and that the defendant’s confession was admitted
in error because it was not given voluntarily. We conclude that the evidence is sufficient to
uphold the verdict and that there was no error in the admission of the photographs or the
defendant’s statement. Accordingly, we affirm the judgments of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Stephen C. Bush, District Public Defender; and Harry E. Sayle, III; Tim Albers; and Mark
Alston, Assistant Public Defenders, for the appellant, Jamaal Eddie.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Amy P. Weirich, District Attorney General; and Dean Decandia and Jennifer Nichols,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       This case arises from the death of an eleven-month-old child. The victim, referred to
as Z, was admitted to LeBonheur Hospital in Memphis suffering from severe brain injury and
bruises to the buttocks after having spent the bulk of the day in the care of the defendant,
who was dating the victim’s mother. Following the victim’s death, the defendant signed a
statement admitting that he had caused the injuries which ultimately killed the victim. The
defendant was indicted for first degree murder committed in the perpetration of aggravated
child abuse; aggravated child abuse; and aggravated child neglect or endangerment.

       Prior to the jury trial, the defendant filed a series of motions, including a motion to
suppress a statement he gave to the police and a motion to suppress certain photographs
which the State intended to introduce into evidence. The trial court held a hearing on the
motion to suppress the defendant’s statement on September 24, 2010. Joe Stark, a sergeant
with the homicide bureau of the Memphis Police Department, testified regarding the
circumstances around the defendant’s statement. Sergeant Stark testified that the defendant
became a suspect based on information Sergeant Stark received from the medical examiner,
from the child’s aunt, and from an officer who had been assigned to the case prior to the
victim’s death. The defendant was arrested on March 3, 2009 between 7:00 and 9:00 p.m.

        Sergeant Stark and another officer, Sergeant Lundy, interviewed the defendant in a
large room. The defendant did not appear intoxicated to Sergeant Stark, and Sergeant Stark
did not smell alcohol or marijuana on the defendant. Although Sergeant Stark testified that
he would normally ask if the suspect was under the influence, he did not recall asking the
defendant if he was intoxicated. The defendant, on the other hand, testified that he had been
drinking beer and smoking marijuana since around noon that day. He testified that he had
consumed twenty-four beers and smoked between twenty and forty fairly thick marijuana
cigarettes in that time. He testified that he was intoxicated but that the police officers never
asked him if he was intoxicated and that he did not volunteer the information. The defendant
was given a form advising him of his rights, including his right to remain silent. Sergeant
Stark testified the defendant was asked to read the first line aloud and had no problem; the
defendant then read the rest to himself. At the hearing, the defendant testified that he was
intoxicated but nevertheless affirmed that at the time of the interview, he understood his
rights, he had no problem understanding his rights, and he wished to give a statement.

         The defendant initially stated that the victim fell from the bassinet and he shook him
to try to wake him. According to Sergeant Stark, he only told this story one time; according
to the defendant, he told it four to five times. Sergeant Stark testified that he told the
defendant that the injuries were not consistent with the defendant’s version of events.
Although Sergeant Stark testified that he made no promises or threats, he also recalled telling
the defendant, “I said if he cooperates, if he tells us what really happened[,] things could
change. I mean, as far as the matter of charge could change.” The defendant, on the other
hand, testified that after Sergeant Lundy found out, through the defendant’s tattoo, that the
defendant had a daughter, he said, “[Y]ou might not ever get to see her again if I give you
this 51 years. Help me to help you. If you tell us what we want to know, then I will help you

                                              -2-
get the less time. You will get maybe three to six years rather than 51 years.” The defendant
testified that he didn’t understand “the whole court system” and believed the police could
give him fifty-one years.

        Sergeant Stark testified that the defendant admitted that the victim had been crying,
that he “spanked” the eleven-month-old victim, and that he put the victim on the floor and
hit him in the head numerous times. The victim then became unresponsive, and the
defendant called the victim’s mother, who was almost home. Sergeant Stark testified it was
one of the quickest interviews he had ever done. The officers then took a formal statement
from the defendant; the statement began with informing the defendant of his rights and the
defendant initialed next to the waiver of his rights, initialed each page, and signed the back
page. Sergeant Stark testified that the defendant read the statement and never invoked his
right to remain silent or asked for an attorney. The defendant, on the other hand, testified
that the police officers told him what the medical evidence was and that his story would have
to match it; specifically, he testified the officers told him he would have had to hit the victim
numerous times to be consistent with the injuries. He further testified that, while a third
officer who was typing his statement was engaged in looking at the computer screen,
Sergeant Lundy and Sergeant Stark would indicate the answers he should give to questions
by nodding or shaking their heads. On cross-examination, the defendant testified that
although the police prompted him to say he hit the victim in the head, he was not prompted
to say he spanked the victim and that he had in fact spanked the victim: “No, I spanked him.
That I did do.” Sergeant Stark also testified that there were two errors in the date: that the
year should have been 2009 and that, because it was midnight when the statement was
signed, it should have been dated March 4.

        At the conclusion of the hearing, the trial court found that it was “fairly obvious . . .
that Mr. Eddie is not being truthful” based on his demeanor and because, given the alcohol
and marijuana consumption to which the defendant testified, “it’s just ridiculous that he
would be able to walk to this interview if that were true.” The court found Sergeant Stark
to be a credible witness. The trial court denied the motion to suppress.

        The defendant’s jury trial began on February 14, 2011. At trial, the State’s first
witness was the victim’s father, Brennan Rayford, with whom the victim had spent most of
the previous two weeks. Mr. Rayford testified that he and the victim’s mother, Tyra
Hampton, broke up one to two months after the victim’s birth. Mr. Rayford had nevertheless
been involved in his son’s life and had kept him overnight and for extended visits prior to
February of 2009. Mr. Rayford testified that the victim had a cold when he arrived for the
visit and that he consulted the victim’s mother and treated the victim’s cold with over-the-
counter medication. He testified that the victim recovered after about three or four days and
behaved normally for the rest of the visit; on cross-examination, Mr. Rayford acknowledged

                                               -3-
that the victim had vomited. During the visit in February 2009, Mr. Rayford lived in
Mississippi with his girlfriend and her four children, who were between nine and twelve
years old. Mr. Rayford testified that on occasion during the visit, including Thursday,
February 26, 2009, his girlfriend cared for the victim while he worked; this was not the first
time his girlfriend or her children had been around the victim. On the evening of February
26, 2009, Mr. Rayford got off work and gave the victim a bath; the victim was behaving
normally. Mr. Rayford then left the victim off at the victim’s mother’s house between 11p.m.
and 12 a.m., while the victim was sleeping. The next evening, Mr. Rayford’s father alerted
him that the victim was in the hospital. Mr. Rayford went to the hospital and remained there
during the victim’s stay; he spoke to the police while there. He did not see the defendant
come to the hospital.

        The State’s next witness, Yashika Douglas, was Tyra Hampton’s neighbor at the time
of the victim’s injury and drove Ms. Hampton and the victim to the hospital. Ms. Douglas
testified that she had lived next to Ms. Hampton since approximately July of 2008. During
the day on Friday, February 27, 2009, she was home with her sick son. Ms. Douglas heard
a loud thump coming from Ms. Hampton’s apartment (as if an appliance had fallen over) in
the middle of the day; she did not hear crying or voices. Around the time it was getting dark,
Ms. Hampton knocked on Ms. Douglas’s door to ask for a ride to the hospital. Ms. Hampton
was “upset” but not hysterical. Because Ms. Douglas and her child were not dressed or ready
to leave immediately, Ms. Douglas asked Ms. Hampton if she would like to call an
ambulance, and Ms. Hampton refused “because she said they usually get in your business,
all in your business.” Ms. Douglas testified Ms. Hampton was “kind of beating on my door
the whole time” she was preparing to go. Ms. Douglas met the defendant, Ms. Hampton, and
the victim on the balcony. The defendant was stuffing clothes into a backpack, which was
“over full” with clothing, and he did not accompany them to the hospital. Observing the
victim’s condition, Ms. Douglas asked if he was that way when his father dropped him off,
and Ms. Hampton said he was not. Ms. Douglas testified that she had never seen Ms.
Hampton treat the victim in a way that would concern her.

        Tyra Hampton, the victim’s mother, testified that because she had obtained her
apartment through a housing program, she was not permitted to have overnight guests or
guests in her apartment if she was not present. Ms. Hampton testified that she was employed
at the time of the victim’s death. Most days, a bus from a daycare would come pick up her
baby and then Ms. Hampton would ride the 8:00 or 8:30 a.m. city bus to work; her commute
lasted about an hour. After she got home, the daycare bus would drop her baby off. The
daycare bus required twenty-four hours notice to come pick up a child. If Ms. Hampton was
working during the weekend or when the daycare was closed, her mother, her sister, the
victim’s father, or the defendant, as “the last resort” would take care of the victim. The
defendant was unemployed, and Ms. Hampton testified he had taken care of the victim

                                             -4-
during the day approximately three times prior to February 27, 2009. Ms. Hampton testified
that on the three prior occasions that the defendant had cared for her son there had been no
signs of injury or any other problems.

       On February 26, 2009, Mr. Rayford brought the victim home. The defendant was in
Ms. Hampton’s apartment at the time. Ms. Hampton woke the victim up because she had
missed him. Ms. Hampton testified the victim had never had bruises after spending time with
his father. She also testified that when she woke the victim the night that Mr. Rayford
dropped him off, he “act[ed] like he didn’t know me,” and he “wasn’t responding to my
happiness.” Ms. Hampton testified that the victim looked at her and was breathing normally.
The next morning, Ms. Hampton changed the victim’s diaper and fed the victim a bottle,
which he held in a “lazy” manner because he was lying down. The victim was acting normal
and went back to sleep. Because she had not expected Mr. Rayford to bring the victim back
that day, she had not given the daycare the required notice to come pick him up, so she let
the defendant keep him for the day. Ms. Hampton testified that the defendant called her as
soon as she got to work to report the victim wouldn’t hold his bottle. He next called about
an hour or an hour and a half later to tell her that he was giving the victim a bath. The
defendant called again before her shift was scheduled to end at 3 p.m. to tell her that the
victim wouldn’t stand up on his musical table, his favorite toy, or play with it. Ms. Hampton
told the defendant to lay him down and said she would be home soon. However, Ms.
Hampton had to stay late because the next cashier did not arrive on time. The defendant
called again to state that the victim would not stop crying. Ms. Hampton could hear the
victim crying in the background. Ms. Hampton arrived at the apartment complex at around
5:30 p.m., and the defendant called her as she stopped to check the mail; he told her to hurry
up and get to the house. In the house, the defendant told her that the victim had fallen out
of bed and would not wake up. The victim was limp.

        Ms. Hampton called her sister, Terrika Hampton, to take her to the hospital. She
called Terrika Hampton because she thought she could get to the hospital, which was three
to five minutes away, more quickly through her own means than by ambulance. When her
sister advised her to call 911, the defendant told her not to call 911 but did not prevent her
from placing any calls. Tyra Hampton went to Ms. Douglas’ house. Tyra Hampton testified
Ms. Douglas never suggested calling 911. While they waited for Ms. Douglas, Ms. Hampton
asked the defendant to come to the hospital, but he said he could not. From the hospital, Ms.
Hampton later called the defendant and told him she needed him, but he again said that he
could not come to the hospital. Mr. Rayford was at the hospital and did not leave when
medical personnel informed the family that the victim’s injuries could not have been caused
by a fall from the bed.

       Ms. Hampton testified that when she first spoke with Lieutenant Terry Pirtle around

                                             -5-
8:00 or 9:00 p.m., she told him that she was home alone with the victim, left him on the bed
while she went to the bathroom, and heard a thump and found him limp on the floor. She
testified she told him that because she believed the defendant’s story and because she did not
want to jeopardize her housing. She said that Lieutenant Pirtle did not believe her and
threatened to take her to jail. Around 3:00 a.m. the next morning, Ms. Hampton called
Lieutenant Pirtle and told him that the defendant had been with the victim the whole time.
She testified she had never hit her baby in the head or spanked him. Ms. Hampton
acknowledged she had kept in touch with the defendant after the victim’s death; however,
she testified she would not have done so if she had known prior to the week of the trial that
he had confessed to hitting her child.

        Terrika Hampton, Tyra Hampton’s sister, also testified for the State. Terrika Hampton
stated she had planned to go to the mall with Tyra Hampton and the defendant when she
received a call from Tyra Hampton telling her that the victim would not wake up. She told
her sister to call 911. Tyra Hampton called again when Terrika Hampton was on the
expressway, and Terrika Hampton again told her to call 911. This time she could hear the
defendant in the background in a panicked voice saying “what you going to call the
ambulance for.” Terrika Hampton heard her sister tell the police that the victim fell off the
bed. Later, her sister told her that when she arrived home, the defendant was holding the
victim in his hands and the victim was unresponsive. Terrika Hampton testified that Mr.
Rayford was present at the hospital Friday, Saturday, and Sunday, but that she never saw the
defendant despite overhearing her sister ask him to come. After the victim died, Terrika
Hampton sent a text message to the defendant informing the defendant that the victim had
died and telling him to turn himself in. The defendant responded with a text message saying
“I told u i put him n da basinet n went 2 iron n then i heard him fall but he didnt cry so i tried
shakin him 2 wake him up n calld u 100.” Terrika testified that this meant “100 percent I’m
telling you the truth.” A photograph of the text message was introduced into evidence.

        Lieutenant Terry Pirtle, who was assigned to the Juvenile Abuse Squad with the
Memphis Police Department, testified that he interviewed both Mr. Rayford and Tyra
Hampton, the victim’s mother, at the hospital. Lieutenant Pirtle said that Ms. Hampton gave
a statement that the baby was fine in the morning, that she had been receiving calls from the
defendant while she was at work, and that the victim was fine when she got home and then
fell off the bed. Lieutenant Pirtle asked Ms. Hampton to go to the apartment, and a
technician photographed and measured the bed. While at the apartment, Lieutenant Pirtle
requested that Ms. Hampton contact the defendant by telephone. When Lieutenant Pirtle
attempted to speak with the defendant, the defendant merely stated that “whatever the mother
says happened is what happened” and hung up the phone. Later in the night, at the hospital,
Lieutenant Pirtle testified Ms. Hampton approached him and stated that the victim had not
fallen off the bed in her presence but had been unresponsive when she got home. Lieutenant

                                               -6-
Pirtle also spoke with Terrika Hampton, who informed him that she had overheard the
defendant tell the victim’s mother not to call 911. On cross-examination, Lieutenant Pirtle
acknowledged that he might have said that someone would go to jail for the crime but denied
threatening the victim’s mother with jail.

       Doctor Karen Chancellor, Chief Medical Examiner for Shelby County, performed the
autopsy on the victim and testified as an expert witness. Dr. Chancellor testified that she
found swelling and discoloration on the parietal region of the scalp which overlaid a nine-
centimeter fracture of the victims skull. The victim’s brain was extremely swollen, resulting
in ischemic injury, and there was bleeding between the skull and brain. She also discovered
bleeding around both optic nerves and hemorrhages in the retinas. She testified that retinal
hemorrhages were consistent with blunt force injury to the head. She also testified that the
autopsy revealed bruising in both buttocks. Dr. Chancellor concluded the victim died from
blunt force injury to his head and ruled it a homicide. She testified that an 11-month-old
could not get this type of severe injury by himself, noting that a fall from a roof might cause
such an injury. Dr. Chancellor indicated that the injury could have occurred from twenty-
four hours before the victim was taken to the hospital to immediately before; she opined that
“[t]he further you go out beyond 12 [hours], I think it’s less likely,” but it was “not
impossible” that the injuries occurred thirteen hours earlier. She placed the bruising to the
victim’s buttocks in the same general time frame. She testified the skull fracture could not
have occurred a week prior to the victim’s admission to the hospital because there would
have been signs of healing. She also testified that the victim’s bones were not softer than
normal for a child his age.

        Doctor Karen Lakin testified as an expert in pediatrics. She testified that a CT scan
revealed that the victim had extensive bleeding on the right side of his head in the subdural
area, a parietal skull fracture on the right side, and swelling in his brain. Dr. Lakin testified
that these injuries would be the result of trauma. Dr. Lakin noted that the victim was not
breathing, had no responses or pupillary reflexes, and “for all practical purposes[,] he was
almost dead when he got to the hospital to begin with.” Dr. Lakin further noted that given
the critical nature of the victim’s injuries, the victim would not have been able to eat, play,
participate in a bath, stand, or cry after the injuries were inflicted. Dr. Lakin’s testimony was
that she would expect the baby to be symptomatic almost immediately. Dr. Lakin opined that
the injuries were non-accidental and consistent with abusive head trauma. Dr. Lakin testified
that this conclusion was bolstered by finding retinal schisis in the victim’s right eye. Dr.
Lakin testified that the fracture could be caused by accidental trauma such as a child falling
three stories, but this wouldn’t usually cause retinal hemorrhages. Given the combination
of injuries, “the most likely explanation for that is abusive head trauma secondary to the
result of some severe impact that may be associated with shaking and then sometimes we see
it specifically just with severe shaking.” Dr. Lakin noted that an acute subdural hemorrhage

                                               -7-
can happen in as large as a 72-hour window, and that she would use information from the
caregiver regarding the child’s state of responsiveness to determine the time of the injury.
However, she testified that in her opinion, the victim could not have sustained the injury 72
hours prior to arriving at the hospital, because he was not breathing and was non-responsive,
and he could not have survived that long on his own.

        Sergeant Willie Mathena, an officer with the Memphis Police Department,
apprehended the defendant on March 3, 2009. Sergeant Mathena testified that he and several
other officers had information that the defendant was at a particular apartment complex.
Sergeant Mathena smelled a strong scent of marijuana. A door opened and a large cloud of
smoke came out. Sergeant Mathena testified that “[i]t almost looked like a rock concert.”
When the smoke cleared, Sergeant Mathena recognized the defendant. Sergeant Mathena
testified that the defendant was arrested because of the marijuana. Sergeant Mathena did not
read the defendant his rights.

       Sergeant Stark also testified at trial regarding the defendant’s statement. Sergeant
Stark testified that Lieutenant Pirtle had given him information about the case; as a result,
he wanted to speak with the defendant because the defendant had been with the victim the
whole day and because the defendant was not present at the hospital. On March 2, 2009,
Sergeant Stark asked detectives to attempt to locate the defendant, and he spoke with Terrika
Hampton. Sergeant Stark took a photograph of the text message from the defendant and took
a statement from Terrika Hampton. Sergeant Stark then went to Tyra Hampton’s place of
employment to confirm that she had been at work on February 27, 2009, and found that she
had clocked in at 9:52 a.m. and clocked out at 4:25 p.m. Sergeant Stark also heard from the
medical examiner that the victim had a fracture to the right side of the skull and bruising on
both buttocks. At 9:25 p.m. on March 3, 2009, he received a phone call that the defendant
was in custody.

        Sergeant Stark and Sergeant Lundy interviewed the defendant in a room with a large
table while the defendant was shackled to a bench. The officers first determined he could
read and then gave him a form advising him of his rights at 10:39 p.m.; the defendant
initialed the form indicating he understood his rights and wished to speak with the officers.
All three men signed. Sergeant Stark testified that if he had thought the defendant was under
the influence of anything, he would not have proceeded with the interview, but would have
waited for the following morning. Sergeant Stark stated he had no particular reason to speak
with the defendant on the night of March 3 rather than the morning of March 4.

       Sergeant Stark told the jury that the defendant initially told him that he had put the
victim in the bassinet while he went to the bathroom. He said he heard the victim fall and
shook the victim because he was unresponsive. Sergeant Stark stated that he told the

                                             -8-
defendant that his account was untrue. The defendant began to cry, and Sergeant Stark got
him a Sprite. At 11 p.m., the defendant told the officers that he had fed and bathed the
victim, but the victim had started crying. The defendant spanked the victim at that point, and
the victim stopped crying for a little while. The victim began crying again, and the defendant
sat him on the ground and hit him in the back of the head several times. Sergeant Stark
testified that he questioned the defendant regarding which hand he hit him with and where
he was positioned to make sure the defendant’s statement matched the physical evidence.
According to Sergeant Stark, the defendant stated he hit the victim with his right hand while
standing behind the victim. Sergeant Stark testified that the defendant stated he was angry
and sounded frustrated that he could not get the baby to stop crying. At 11:40 p.m., a third
detective came to type the defendant’s statement. The defendant signed it at midnight.

         The defendant’s statement, which began with a waiver of rights, was admitted into
evidence. In it, the defendant related that the day started well, but then the victim started
crying. The defendant spanked him and left him alone for a while. The victim cried again,
and the defendant spanked him again and then put him to sleep. The victim began crying
uncontrollably. The defendant “hit him a couple of times like in the back of his head like in
his neck to make him stop. And then still he wouldn’t stop crying and then I shook him and
then he lost life and I called his mother.” The defendant’s statement said that he hit the baby
“no more than” ten times. The defendant’s statement also noted that he had sent a text
message to Tyra Hampton regarding what happened. The statement showed that the
defendant affirmed that he had given it voluntarily without threats or promises. Sergeant
Stark testified the defendant read over the statement but made no changes. Sergeant Stark
also testified that none of the officers threatened, coerced, or mistreated the defendant. He
stated that the time it took to get the defendant’s statement was “extremely quick.” He
further testified that the defendant did not ever blame anyone else for the victim’s injuries.
On cross-examination, Sergeant Stark stated that he “wouldn’t be surprised” if he had said
that the defendant might go to jail for a long time if he stuck with his first story, because it
didn’t match up with the baby’s injuries. He noted that because the defendant “was looking
at first degree murder, the only thing that he could do was tell and help him” since there was
no higher crime with which he could be charged.

        The defendant testified on his own behalf. The defendant testified that he wanted to
spend time with the victim and told Ms. Hampton he would keep him that day. The
defendant testified that he had cared for the victim while Ms. Hampton was at work about
twenty times in the past. The defendant testified that the victim had not fully awakened the
night he was dropped off. The next morning, Ms. Hampton changed his diaper and gave him
a bottle, and then he went back to sleep. The defendant testified that when the victim awoke,
he fed him and gave him a bath; the defendant called Ms. Hampton because there was a ring
around the tub, and that was unusual. The victim then took a nap, and the defendant fed him

                                              -9-
again when he awoke. At that point, the victim began crying.

        The defendant testified that the victim “was really spoiled. And if you put him down
and stay away from him too long he would cry.” The defendant called Ms. Hampton because
in the past she had been able to calm the baby by speaking with him on the telephone. She
spoke with the victim and he calmed down. The defendant sat with the victim for a while
and then put him back on the floor around 3:00 p.m. The victim started screaming. The
defendant testified that he then called Ms. Hampton again and asked her to come home.
However, the employee who was to replace her could not come and Ms. Hampton had to stay
longer. The defendant testified that he got tired of hearing the victim cry and so he held him
to calm him down. The defendant said that Ms. Hampton got home and told him that her
sister would be late for an outing they had planned, so the defendant decided to cut his own
hair. The defendant was in the bathroom running the electric clippers when he heard Ms.
Hampton screaming and came out and saw that the baby was limp. According to the
defendant, Ms. Hampton told him that the victim was crying and threw up and that she
spanked him and “lost it.” The defendant testified that the victim frequently cried and
occasionally threw up, and that Ms. Hampton would spank him. The defendant stated that
he told Ms. Hampton to call 911, but she stated she didn’t need them in her “business.”

       The defendant testified that he never went to the hospital because he had “a prior
obligation with the police” and would have been arrested if he had been around a police
officer. The defendant testified Ms. Hampton called him while he was riding the bus and
they prayed together. The defendant stated that later Ms. Hampton and Lieutenant Pirtle
called him and that he was willing to speak with Sergeant Pirtle over the phone; however,
because Lieutenant Pirtle insisted that he be interviewed face-to-face, they did not talk.
According to the defendant, he habitually smoked marijuana but never did so when he was
taking care of a child.

       The defendant confirmed that his interview after his arrest was not long, stating that
he agreed to give a statement after ten to twenty minutes of questioning. The defendant
repeated his testimony from the suppression hearing regarding Sergeant Lundy and testified
he gave the statement because he did not want Ms. Hampton to have to go to jail and three
years was “not that much time.” He further confirmed his testimony from the suppression
hearing that he was intoxicated from having smoked marijuana all day. He testified that he
was not responsible for the victim’s injuries. He confirmed he had sent the text message to
Terrika Hampton. On cross-examination, the defendant claimed that the police told him what
to say when he gave his statement. He claimed that he never spanked the victim. To
impeach the defendant, the prosecution read the defendant’s testimony from the suppression
hearing at which the defendant admitted spanking the victim. The defendant stated that he
was not truthful at the suppression hearing. The prosecution also read part of a letter which

                                             -10-
the defendant acknowledged writing to Tyra Hampton after his arrest; the defendant had
written, “It’s like I get sad but that’s it. I get a lot of headaches now. Then I be trying to
remember what happened and I can’t.” He conceded he had never before stated that Ms.
Hampton was responsible for the victim’s injuries.

       The jury convicted the defendant of felony murder committed in the perpetration of
aggravated child abuse, of aggravated child abuse, and of aggravated child neglect. The trial
court merged the aggravated child abuse and aggravated child neglect charges and sentenced
the defendant to fifty-one years incarceration for the felony murder and to a concurrent
twenty years for the aggravated child abuse. On appeal, the defendant challenges the
sufficiency of the evidence supporting the first degree murder conviction; the defendant does
not challenge the sufficiency of the evidence supporting his conviction for aggravated child
abuse. The defendant also asserts that certain photographs of the victim were admitted in
error and that the court should have suppressed his statement to the police.

                                           Analysis

                               A. Sufficiency of the Evidence

        This Court must set aside a guilty verdict if the evidence is insufficient to support the
finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). In
reviewing the sufficiency of the evidence upholding a conviction, the pivotal question is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The State is entitled to the strongest
legitimate view of the evidence and to all reasonable and legitimate inferences drawn
therefrom. State v. Williams, 38 S.W.3d 532, 536 (Tenn. 2001). The Court may not re-
weigh or re-evaluate the evidence, or substitute its inferences for those drawn by the trier of
fact. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). “Questions concerning the
credibility of witnesses, the weight and value to be given the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact,” and a guilty verdict rendered
by the jury and approved by the trial judge resolves all conflicts in testimony in favor of the
State’s theory. State v. Schmeiderer, 319 S.W.3d 607, 635 (Tenn. 2010) (quoting State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). A guilty verdict replaces the presumption of
innocence with one of guilt, and the defendant bears the burden of showing that the evidence
is insufficient to support the verdict. Id.

        This case does not present a close question regarding whether there was sufficient
evidence to support the verdict. The defendant’s challenge is based solely on the contention
that the proof was not sufficient to show that the defendant was the person responsible for

                                              -11-
the victim’s injuries. The defendant’s own testimony blamed the victim’s mother for the
injuries. However, the evidence at trial also included the defendant’s signed statement to the
police stating that he was responsible for the injuries, along with Sergeant Stark’s testimony
that the statement was voluntary; the defendant’s text message to the victim’s aunt in which
he asserted that he shook the victim, who had fallen from a bassinet; the victim’s mother’s
testimony that the victim was behaving normally in the morning but was unresponsive when
she got home and that the defendant had told her the victim fell out of bed; and the victim’s
mother’s and victim’s aunt’s testimony that the defendant did not want the mother to call
911. Although the defendant testified to a different version of events, this conflict in
testimony is a classic credibility determination entrusted to the jury. This issue has no merit.

                        B. Admission of Photographs of the Victim

        The defendant next objects to the admission of two photographs of the victim taken
during the autopsy. One photograph depicted the victim’s skull with the scalp removed to
expose a fracture in the bone. The other depicted the bruising on the victim’s buttocks. Prior
to admitting the photographs, the trial court held a hearing out of the presence of the jury.
The trial court found that although the skull was “uncleaned” there was “not a lot of gore”;
the trial court cut away part of that photograph which, by implication, it felt might be unfairly
prejudicial. Regarding the other photograph, the trial court cautioned the prosecution to have
the witnesses clarify which marks which were not wounds allegedly inflicted by the
defendant. The prosecution also made a offer of proof, submitting to the court other, more
prejudicial photographs which it was not attempting to enter into evidence. The trial court,
finding that the probative value was not substantially outweighed by the possibility of unfair
prejudice, admitted the photographs.

       In Tennessee, the default rule is that all relevant evidence – which is evidence having
any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable – is admissible. Tenn. R. Evid. 401, 402.
Relevant evidence may nevertheless be excluded if its “probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.

       Courts in Tennessee follow a policy of liberality in the admission of photographic
evidence. State v. Cole, 155 S.W.3d 885, 912 (Tenn. 2005) (appendix). The decision to
admit photographs into evidence lies in the sound discretion of the trial court, and the trial
court’s decision is reviewed for abuse of discretion. State v. Banks, 564 S.W.2d 947, 949
(Tenn. 1978). Generally, “photographs of the corpse are admissible in murder prosecutions
if they are relevant to the issues on trial, notwithstanding their gruesome and horrifying

                                              -12-
character.” Id. at 950-51. However, a photograph which is not relevant to the prosecution’s
proof is, like other non-relevant evidence, not admissible, and should not be admitted solely
to prejudice the jury against the defendant. Id. at 951; Tenn. R. Evid. 402. Although it may
appear that photographs of crime victims are prejudicial by their very nature, it is not
necessary to exclude all such photographs; indeed any evidence tending to establish the
defendant’s guilt may be termed prejudicial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn.
Crim. App. 1995). “What is excluded is evidence which is unfairly prejudicial, in other
words, evidence which has an undue tendency to suggest a decision on an improper basis,
frequently, though not necessarily, an emotional one.” State v. Jordan, 325 S.W.3d 1, 85
(Tenn. 2010) (appendix). “[A]s a general rule, where medical testimony adequately describes
the degree or extent of the injury, gruesome and graphic photographs should not be
admitted.” State v. Morris, 24 S.W.3d 788, 811 (Tenn. 2000) (appendix). However, a
relevant photograph is not excluded merely because it is cumulative of testimonial evidence.
Id.

       At trial, the evidence showed that the defendant initially told the victim’s mother, the
victim’s aunt, and the police that the victim sustained his injuries when he fell out of the bed
or bassinet and the defendant shook him to try to awaken him. The photographs in question
are relevant to showing the non-accidental nature of the victim’s injuries. Given the
defendant’s testimony at the suppression hearing and in his statement that he “spanked” the
victim, the photograph of the bruising is also relevant to the question of the identity of the
person responsible for the injuries. The photographs further corroborate the defendant’s
confession. We conclude that the trial court did not abuse its discretion in admitting the
photographs.

                      C. Admissibility of the Defendant’s Statement

       The defendant also contends that his statement was involuntary and should not have
been admitted into evidence for two reasons: because he was intoxicated at the time, and
because he was influenced by threats and promises from the police officers questioning him.
The trial court made a credibility determination in favor of the testifying police officer during
the suppression hearing and found that the defendant’s statement was given voluntarily. The
statement was subsequently introduced at trial.

       “[T]he prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.” Miranda
v. Arizona, 384 U.S. 436, 444 (1966). These safeguards include that, prior to interrogation,
“the person must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of an

                                              -13-
attorney, either retained or appointed.” Id. A waiver of the constitutional right to silence
must be made voluntarily, knowingly, and intelligently. State v. Turner, 30 S.W.3d 355, 359
(Tenn. Crim. App. 2000). Such a waiver is valid if the suspect is aware of the nature of the
right and the consequence of the decision to abandon the right. State v. Thacker, 164 S.W.3d
208, 249 (Tenn. 2005) (appendix). In evaluating the voluntariness of a waiver, the court
must look at the totality of the circumstances. Turner, 30 S.W.3d at 359. Here, the court
found the defendant’s statement to be voluntary, and the trial court’s determination at a
suppression hearing is presumptively correct on appeal, unless the evidence preponderates
otherwise. See State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

       Intoxication is, of course, part of the totality of the circumstances examined in
evaluating the voluntariness of a confession. However, intoxication, standing alone, is not
a sufficient reason to suppress the defendant’s statement if the evidence shows that the
defendant understood his rights. State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App.
1985). As long as the statement is coherent, State v. Perry, 13 S.W.3d 724, 738 (Tenn. Crim.
App. 1999), as shown by the fact that the accused was capable of narrating events and stating
his own participation, the statement is admissible. State v. Green, 613 S.W.2d 229, 232-233
(Tenn. Crim. App. 1980). “It is only when an accused’s faculties are so impaired that the
confession cannot be considered the product of a free mind and rational intellect that it
should be suppressed.” State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000) (appendix)
(quoting State v. Robinson, 622 S.W.2d 62, 67 (Tenn. Crim. App. 1980)).

       The evidence does not preponderate against the trial court’s determination that any
purported intoxication on the part of the defendant did not render the statement involuntary.
The defendant’s own testimony at the suppression hearing was that, in spite of his
intoxication, he understood his rights, he had no problem understanding his rights, and he
wished to give a statement to the police. The trial court further determined that it did not find
him to be a credible witness because of his demeanor and because the amounts of intoxicants
he claimed to have ingested were too large to credit. Sergeant Stark testified that the
defendant did not appear intoxicated and the defendant was able to narrate the events leading
to the victim’s injuries. The defendant was not so intoxicated as to jeopardize the
voluntariness of his statement, and we conclude the trial court did not err in denying his
motion to suppress on this ground.

        The defendant next asserts that his statement should have been suppressed because
of threats of lengthy imprisonment and promises of leniency made by the prosecution. Even
when a defendant has waived his Miranda rights, a confession must still be voluntary in
order to be admissible. State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000). A
confession may not be compelled by “any sort of threats or violence, nor obtained by any
direct or implied promises, however slight, nor by the exertion of any improper influence.”

                                              -14-
Id. (quoting Bram v. United States, 168 U.S. 532, 542-43, (1897)). Article I, section 9 of the
Tennessee Constitution provides a test of voluntariness that is broader and more protective
of individual rights than that found in the Fifth Amendment. State v. Downey, 259 S.W.3d
723,734-35 (Tenn. 2008). Nevertheless, promises of leniency do not render subsequent
confessions invalid per se, because “[t]he Fifth Amendment does not condemn all
promise-induced admissions and confessions; it condemns only those which are compelled
by promises of leniency.” State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (internal
quotation omitted). “The essential question therefore is ‘whether the behavior of the State’s
law enforcement officials was such as to overbear [the defendant’s] will to resist and bring
about confessions not freely self-determined.” State v. Downey, 259 S.W.3d at 734 (internal
quotation omitted). One factor to be assessed in determining whether the confession was
voluntary under the totality of the circumstances is whether there are any indicia the
defendant subjectively understood and waived his rights. Id.

       Here, Sergeant Stark conceded that he might have told the defendant that he faced
lengthy prison time if he continued to insist on his original story because it did not match the
physical evidence. However, “[t]ruthful statements about [a defendant’s] predicament are
not the type of ‘coercion’ that threatens to render a statement involuntary.” Smith, 933
S.W.2d at 456 (quoting United States v. Pelton, 835 F.2d 1067, 1073 (4th Cir. 1987)). The
defendant testified that Sergeant Lundy promised him that he would only face three years in
prison if he confessed, but would face fifty-one if he did not. The trial court, however, did
not credit the defendant’s testimony at the suppression hearing, a finding supported by the
defendant’s testimony at trial that he had perjured himself at the suppression hearing on the
subject of the “spanking.” Sergeant Stark also testified that he believed that the defendant
would be charged with first degree murder and “the only thing that he could do was tell and
help him[self].” Sergeant Stark acknowledged telling the defendant that the charge “could
change.” However, such a statement is equivocal. See Smith, 933 S.W.2d at 456 (finding
statement that the DA often did not prosecute similar cases was equivocal). The trial court
implicitly found that these statements did not compel the confession. Given the totality of
the circumstances, including the extreme brevity of the interrogation and the defendant’s
suppression hearing testimony that he understood his rights but nevertheless wished to make
a statement, the evidence does not preponderate against the trial court’s determination that
the defendant’s will to resist was not overborne by law enforcement and that the statement
was voluntarily given.

                                       CONCLUSION

        Based on the foregoing, the defendant’s convictions and the trial court’s rulings
regarding the admission of the photographs and the admission of the defendant’s statement
are affirmed.

                                              -15-
       _________________________________
       JOHN EVERETT WILLIAMS, JUDGE




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