        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville May 21, 2013

          STATE OF TENNESSEE v. TIWON ANTWAN HARVELL

                Appeal from the Criminal Court for Davidson County
                    No. 2011-B-1104 Cheryl Blackburn, Judge



                 No. M2012-01953-CCA-R3-CD - Filed September 6, 2013


The Defendant, Tiwon Antwan Harvell, was convicted by a Davidson County Criminal Court
jury of facilitation of aggravated robbery, a Class C felony, and evading arrest in a motor
vehicle, a Class E felony. See T.C.A. §§ 39-11-403, 39-13-402, 39-16-603. The trial court
sentenced the Defendant as a Range II, multiple offender to concurrent terms of ten years for
facilitation of aggravated robbery and four years for evading arrest. On appeal, he contends
that his interview with the police should have been suppressed and that a transcript of the
interview should not have been introduced with the video recording. We affirm the
judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Andrew Chad Davidson, Nashville, Tennessee, for the appellant, Tiwon Antwan Harvell.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General; and Megan N. King, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       This case relates to a robbery of a Mapco store in the early morning hours of January
20, 2011, in which Dale Waggoner, a passenger in an SUV driven by the Defendant, took
money and cigarettes at gunpoint. After the robbery, the Defendant parked at another
Mapco. When two police officers drove by, he attempted to flee. The police gave chase, and
the Defendant crashed into a tree and fled on foot into the woods. After detaining the
Defendant, the police took him to the police station for an interview, and he signed a waiver
of his Miranda rights.

       In his statement, the Defendant admitted dropping off Mr. Waggoner at the Mapco
and pulling around. He said that when Mr. Waggoner returned to the car, he said, “[Let’s]
go,” and opened a pack of cigarettes. He said they did not discuss robbing the Mapco
beforehand. He said that he knew he was in a “bad situation” but that he did not commit the
robbery.

        The jury found the Defendant guilty of facilitation of aggravated robbery and evading
arrest in a motor vehicle. The trial court sentenced the Defendant as a Range II, multiple
offender to an effective ten-year sentence. This appeal followed.

                                               I

       The Defendant contends that his police interview should have been suppressed
because it violated his Fifth Amendment privilege against self-incrimination due to his
fatigue and intoxication when he made the statement. The State responds that his condition
did not invalidate his waiver of rights. We agree with the State.

        At the suppression hearing, Metropolitan Nashville Police Sergeant Josh Blaisdell
testified that on January 20, 2011, around 1:34 a.m., he received a call from police dispatch
about a robbery at a nearby Mapco gas station and that the suspects were in a dark SUV. He
said that he was in front of another Mapco gas station when he received the call and that he
saw a dark SUV behind the store when he pulled in to turn around. He said that he was
driving an unmarked police car but that when a marked police car drove by, the SUV’s lights
came on, and it drove away. He said that these actions were suspicious and that he attempted
to stop the SUV. He said that the SUV accelerated and that the chase began less than a
minute after he received the robbery call.

        Sergeant Blaisdell testified that he reached speeds between sixty and seventy miles
per hour during the chase. He said the SUV approached a dead end, slowed to about ten
miles per hour, passed through roadside shrubs, and struck a tree. Sergeant Blaisdell said
that after the collision, the Defendant ran into the woods and that he contacted other officers
to set up a perimeter and call a K-9 unit. He said that he removed two people from the SUV
and that another officer returned the Defendant to the scene within five minutes. He said that
he looked inside the SUV and saw a handgun on the front passenger’s side floorboard, a
carton of Newport cigarettes, and money on the driver’s side floorboard. He said that the car
was not damaged badly because it was only going about ten miles per hour when it hit the



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tree and that to his knowledge, the damage to the front did not impair the SUV’s operation.
He said the air bags had not deployed.

       On cross-examination, Sergeant Blaisdell testified that during the pursuit, his car and
the SUV were the only cars on the road and that not many people were in the area. He did
not know whether the Defendant wore a seatbelt during the collision or whether the
Defendant’s head struck the steering wheel. He agreed that he was not a licensed medical
professional and said that although he did not see the Defendant vomit, the Defendant left
his sight after the accident.

        Sergeant Blaisdell testified that it was a “straight shot” between the two Mapco
stations. He said that he was about 100 yards from the SUV when he received the call and
that the SUV was parked with its headlights off. He did not know if the engine was running.
He said that the speed limit was forty miles per hour but that the SUV traveled between sixty
and seventy miles per hour during the chase. He said that the pursuit lasted about a minute
and that the Defendant passed through a flashing red light and entered a dead-end road.

        On redirect examination, Sergeant Blaisdell identified a photograph of the inside of
the SUV, which showed no damage. On recross-examination, he said that the photograph
of the SUV showed a crack in the windshield but that he did not know if it was caused by the
accident.

       Upon examination by the trial court, Sergeant Blaisdell testified that he was stopped
when he received the call and entered the Mapco parking lot because he heard the dispatcher
say “Mapco.” He said that the SUV was parked with its lights off and that he realized it
matched the description of the car from the robbery. He said his suspicions were raised by
the location and description of the SUV and by its lights coming on when the police car
passed. He said he knew from experience that a delay existed between the robbery and
dispatch’s alerting him.

       Metropolitan Nashville Police Detective Aaron Harrison testified that the Defendant
was not present when he arrived at the scene but was apprehended a short time later. He said
the police found a pistol and a carton of Newport cigarettes in the SUV. He stated that they
took the Defendant and the other two individuals to the police station but that the Defendant
was the only one willing to be interviewed.

        Detective Harrison noted damage to the front of the SUV but said that none of the
passengers required medical treatment. He said no one was bloody or bruised or requested
medical treatment. He said that he did not recall deployed air bags and that although damage
to the SUV was visible, it was not “totaled.” He stated that although the report showed the

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Defendant’s interview began at 3:30 a.m., he knew it started at 2:30 because he checked and
verbally announced the time at the beginning of each interview. He stated that before asking
the Defendant questions, he read the Miranda rights to the Defendant, who said he
understood and signed the rights waiver. He said that while interviewing the Defendant, he
marked “no” on the rights waiver to the question about intoxication. He stated that although
the Defendant said he had “a couple of beers” that night, Detective Harrison did not feel he
was intoxicated. He said the Defendant was responsive, coherent, attentive, and understood
his rights and Detective Harrison’s questions. He said the Defendant described the events
of the night and admitted driving the vehicle involved in the robbery. He said the Defendant
recounted picking up Mr. Waggoner, dropping him off at the store, opening a pack of
cigarettes from the stolen carton, and the police chase. He said that the Defendant answered
the questions and spoke coherently.

        Detective Harrison testified that the Defendant coughed and that he offered him a
trash can and provided water. He said that after the interview, the Defendant walked by
himself in handcuffs. He stated that the Defendant asked to use the phone and was able to
dial the number from memory. He said that although to his knowledge the Defendant never
fell asleep or complained of fatigue, the Defendant put his head down during the interview.
Detective Harrison did not know whether the Defendant was tired or unhappy he had been
caught. He said the interview lasted thirty minutes.

       On cross-examination, Detective Harrison testified that because he had not previously
talked with the Defendant, he did not know whether the Defendant was slurring his words.
He said he planned to charge the Defendant with aggravated robbery regardless of the
interview. He said he examined the Defendant’s criminal history after arriving at the station.
He said the Defendant coughed profusely before the interview and may have said he felt like
vomiting.

        Detective Harrison testified that he knew the Defendant had been in a car accident,
that he did not have medical training, and that he did not take the Defendant to the hospital.
He said that he did not know whether the Defendant wore a seat belt during the accident and
that he was unsure whether the air bag deployed or if the Defendant’s head struck the
steering wheel. He did not remember if the Defendant said whether he was intoxicated but
remembered his stating he had been drinking beer. He said that the Defendant’s answers to
his questions were “thought out” and that the Defendant was coherent, although the
Defendant put his head on the table during the interview. Detective Harrison said that he
determined the Defendant was not intoxicated by talking with him.

      The trial court found that the Defendant was neither too intoxicated nor too tired to
waive his rights voluntarily because throughout the interview he “seemed coherent, was able

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to maintain his attention to the situation at hand, and was able to give specific responses to
the questions asked.” The court denied the motion to suppress.

        An appellate court may consider the evidence presented at the suppression hearing as
well as at the trial in determining whether the trial court properly denied a pretrial motion to
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). We note that the trial
testimony was similar to the suppression hearing testimony. A trial court’s factual findings
on a motion to suppress are conclusive on appeal unless the evidence preponderates against
them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223
(Tenn. Crim. App. 1990). Questions about the “credibility of the witnesses, the weight and
value of the evidence, and resolution of the conflicts in the evidence are matters entrusted
to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The application of the law
to the facts as determined by the trial court is a question of law which we review de novo on
appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        A defendant who is in custody and being interrogated is provided protections against
self-incrimination under the Fifth Amendment of the United States Constitution and article
I, section 9 of the Tennessee Constitution. Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980); State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997). One of those protections is the
administration of certain warnings to the arrested defendant, including that he “has the right
to remain silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S.
436, 479 (1966). A defendant can waive these rights and make a statement after they are
given, but such a waiver must be knowing, voluntary, and intelligent before the statement can
be used as evidence. Id. at 444; State v. Darnell, 905 S.W.2d 953, 960 (Tenn. Crim. App.
1995). The State has the burden to prove waiver by a preponderance of evidence. Bush, 942
S.W.2d at 500. To make such a determination, the court looks to the totality of the
circumstances under which the statement was made. State v. Thacker, 164 S.W.3d 208, 248-
49 (Tenn. 2005); State v. Kelly, 603 S.W.2d 726, 728-29 (Tenn. 1980)).

       In this case, the Defendant argues that his waiver was invalid due to his level of
intoxication. This court has held that a defendant who gave a coherent narrative of events
was not intoxicated to such a degree that his waiver was involuntary. State v. Robinson, 622
S.W.2d 62, 67 (Tenn. Crim. App. 1980); Lowe v. State, 584 S.W.2d 239, 241 (Tenn. Crim.
App. 1979). In Terrance Lee Hannah, the defendant had a blood alcohol content of .28
percent but made coherent statements. The court determined that the waiver was valid. See
State v. Terrence Lee Hannah, No. 01C01-9711-CC-00540, slip op at 9-11 (Tenn. Crim.
App., Nov. 4, 1998), perm. app. denied (Tenn. Apr. 12, 1999).



                                              -5-
       In the present case, based on Detective Harrison’s testimony, the trial court found that
the Defendant was not too intoxicated to make a valid waiver of his rights. Detective
Harrison testified that when he asked the Defendant questions, the Defendant provided
coherent answers, a narrative of the night’s events, and specific details. We conclude that
the waiver is valid.

       The Defendant also claims that due to the timing of the interview, he was too tired to
waive his rights. This court has stated that being tired does not indicate an invalid waiver.
See State v. Michael A. Virga, No. M2008-00209-CCA-R3-CD, slip op at 11-12 (Tenn. Crim.
App. Mar. 3, 2009), perm app denied (Tenn. June 15, 2009). In Michael A. Virga, the
defendant waived his rights but never complained about being tired or fell asleep. Id. He
slept one hour on the night of the crime and regularly the night before. Id. The defendant
was held for four hours before he was questioned for two hours. Id. In addition, he gave a
detailed statement, and this court held that he was not too tired to waive his rights voluntarily.
Id.

        In the present case, the trial court found that the waiver was not invalid due to sleep
deprivation because the Defendant was coherent, maintained his attention, and answered
Detective Harrison’s questions. The court said that although the Defendant put his head on
the table during the interview, the weight of the evidence indicated that the waiver was valid.
The Defendant did not say he was tired during the interview. We conclude that the waiver
was voluntary, knowing, and intelligent and that the Defendant is not entitled to relief.

                                                II

       The Defendant contends that the transcript of the video recording was improperly
admitted at the trial because it was not the “best evidence.” The State argues that the best
evidence rule does not preclude the transcript. We agree with the State.

       The Defendant cites Tennessee Rule of Evidence 1002, which provides, “To prove
the content of writing, recording, or photograph, the original writing, recording, or
photograph is required.” The Defendant argues that the tape, not the transcript, was the best
evidence of the statement. He also cites Tennessee Rule of Evidence 1004, which states that
unavailability of the original may justify the admission of a copy. He argues that because the
original was available, this rule does not allow the admission of the transcript. He also
claims that allowing such a transcript could result in a “slippery slope” to allowing the police
to make a poor recording and transcribe it with intentional inaccuracies.

      If the original recording is included with the transcript, the best evidence rule is not
offended. See State v. Willie Nathaniel Smith, No. W2001-02973-CCA-R3-CD (Tenn. Crim.

                                               -6-
App. Jan. 9, 2003). Recordings and transcripts may be presented together if the witness who
presents them was present during the recording or monitored the recorded conversation and
was in a position to identify the speaker with certainty. State v. Walker, 910 S.W.2d 381,
394-95 (Tenn. 1995). Also, “a transcript of a tape may be given to a jury where the jury is
instructed that the tape, and not the transcript is the evidence.” State v. Barnard, 899 S.W.2d
617, 623-24 (Tenn. Crim. App. 1994).

        Detective Harrison conducted the recorded interview, testified about the contents of
the recording, and compared the transcript to the recording to verify the accuracy. The
record reflects that the trial court instructed the jury to rely on the recording, not the
transcript, as the evidence. Thus, the transcript was properly provided. The Defendant is not
entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.

                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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