        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs July 15, 2015

          STATE OF TENNESSEE v. MICHAEL CHARLES LUGIAI

                 Appeal from the Criminal Court for Davidson County
                    No. 2013-B-1148    Cheryl Blackburn, Judge


                 No. M2014-01813-CCA-R3-CD – Filed August 13, 2015


The defendant, Michael Charles Lugiai, appeals his Davidson County Criminal Court
jury conviction of aggravated robbery, contending that the trial court erred by refusing to
suppress the statements he made to law enforcement officers. Discerning no error, we
affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Jay Umerley (on appeal), Nashville, Tennessee, and Michael Shaw Cunningham (at trial),
Nashville, Tennessee, for the appellant, Michael Charles Lugiai.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Megan M. King,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

             In May 2013, the Davidson County Criminal Court grand jury charged both
the defendant and Stevie Tyler Taylor1 with one count of the aggravated robbery of
David White. The trial court conducted a jury trial in May 2014.

            The State‟s proof at trial showed that, sometime prior to February 13, 2013,
Mr. White had cashed a check for approximately $1,800 that he had received from a Pell
Grant. Mr. White kept the cash on his person, and, although Mr. White did not tell the

1
        The grand jury also charged Stevie Tyler Taylor a/k/a Steven Tyler Taylor with one count of
being a felon in possession of a handgun and one count of resisting arrest in the same indictment.
defendant about the money, the defendant saw the money when Mr. White paid to repair
the defendant‟s flat tire. On February 13, the defendant drove Mr. White and Jermicia
White2 around town so that Mr. White could run some errands; Mr. White did not have a
vehicle of his own. Mr. White gave the defendant $20 to cover the cost of gasoline, and
the defendant again saw the large amount of cash Mr. White had.

               While Mr. White was shopping in a clothing store, the defendant pressured
Mr. White to hurry. Later, when the defendant stopped for gas, Mr. White became
concerned because both the defendant and Ms. White stepped out of the vehicle. The
defendant and Ms. White were talking and “staring” at Mr. White, and the defendant
placed calls from his cellular telephone. Feeling uncomfortable, Mr. White took most of
the $1,800 from his pocket and hid the money in one of his socks. While en route to Mr.
White‟s residence, Mr. White asked the defendant to stop at the defendant‟s house so that
the defendant could retrieve money he owed Mr. White, but the defendant refused to
stop, insisting that he would reimburse Mr. White later.

              When the trio arrived at Mr. White‟s residence around 9:00 p.m., Mr.
White got out of the vehicle and was immediately accosted by a man later identified as
Mr. Taylor, who placed a gun to Mr. White‟s chest and demanded that Mr. White “give
him everything out of [his] pockets.” Mr. White threw his hands in the air, and Mr.
Taylor searched Mr. White, stealing his wallet, cellular telephone, and the two dollar bills
Mr. White left in his pocket. Mr. Taylor then demanded to know “where‟s the rest of the
money at.” When Mr. Taylor began rummaging through Mr. White‟s backpack in the
back seat of the vehicle, Mr. White attempted to wrest the handgun away from Mr.
Taylor. During the struggle, shots were fired, and one bullet grazed Mr. White‟s hand.
Mr. White wrestled Mr. Taylor to the ground and was successful in his efforts to take
control of the handgun, which he tossed aside. Mr. White also managed to retrieve the
items Mr. Taylor had stolen from him, with the exception of Mr. White‟s automated teller
machine card, which was later found with Mr. Taylor. After retrieving his property, Mr.
White released Mr. Taylor, and Mr. Taylor escaped. Throughout the fracas, the
defendant “just st[ood] there,” and Ms. White ran away from the scene. Mr. White never
saw Mr. Taylor point his gun at the defendant or Ms. White.

             Mr. White‟s roommate, Jamar Hayes, heard the gunshots and ran outside.
Mr. White yelled for Mr. Hayes to call the police, and Mr. Hayes returned to the house to
call 9-1-1. Although he did not know Mr. Taylor, Mr. Hayes noticed Mr. Taylor sitting
in a neighbor‟s front yard approximately one hour before the attack on Mr. White.
Gwendolyn Collier, Mr. White‟s neighbor, also heard gunshots on February 13. When
she stepped outside, she saw Mr. White wrestling with another man on the ground, and

2
       Mr. White is no relation to Jermicia White.
                                                  -2-
she heard Mr. White yelling for someone to call the police. Ms. Collier also noticed the
defendant not “doing anything but ducking and dodging.”

             Law enforcement officers arrived on the scene a short time later and spoke
with both Mr. White and the defendant. Less than an hour later, Mr. Taylor was
apprehended and was positively identified by Mr. White as the man who had robbed him.
Mr. White‟s automated teller machine card was found in Mr. Taylor‟s possession.

              Based on Mr. White‟s suspicions and the defendant‟s unusually calm
demeanor, officers asked the defendant to accompany them to the police station for
further questioning. The defendant agreed, and although he initially denied any
involvement in the crime, he later admitted to arranging the robbery and expecting to
receive a portion of the money stolen.

              With this evidence, the State rested. Following the trial court‟s denial of
the defendant‟s motion for judgment of acquittal and a Momon colloquy, the defendant
chose not to testify and presented no proof.

             Based on this evidence, the jury convicted the defendant as charged of
aggravated robbery. Following a sentencing hearing, the trial court sentenced the
defendant as a standard offender to a term of eight years‟ incarceration to be served at 85
percent by operation of law. See T.C.A. § 40-35-501(k)(1).

              Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends only that the trial court
erred by refusing to suppress the incriminating statements he made to law enforcement
officers. Specifically, the defendant claims that his confession was coerced and therefore
should have been suppressed.

                The sole basis of the defendant‟s motion to suppress was law enforcement
officers‟ alleged failure to properly advise him of his Miranda rights. See Miranda v.
Arizona, 384 U.S. 436 (1966). The motion did not include a component of coercion.
Following a suppression hearing, at which Metropolitan Police Department (“Metro”)
Detectives Matthew Chapman and James Robert Slusser and the defendant all testified,
the trial court found as follows:

                     Well, let‟s first talk about Officer Chapman. Officer
              Chapman was called to the scene. It was originally a shots
              fired call, and then it turned into a robbery call when he got
              there. They were interviewing the defendant as well as the
              victim as if they – interviewing the defendant as if he had
                                           -3-
             been a victim. And so the questions related to who was it, the
             description, all that, none of that would be requiring any
             [Miranda] rights. He may have become suspicious because
             he had talked to Mr. White and then the business about the
             [defendant‟s stolen] cell phone did not match up. But he
             certainly wasn‟t in custody at that time. And clearly the –
             there was nothing about that that was ususual in the sense of
             Officer Chapman just doing his job. Then after the other
             defendant, Mr. Taylor, was taken into custody – and we heard
             about that when we did the deposition about how that
             occurred. They are then – according to the police, according
             to Officer Slusser, when he got there it was pretty much the
             same kind of thing. But he asked the defendant if he wanted
             to come down and sort of clear up some of this I guess, and
             he said he would.

                    Also there was [Ms. White]. They got [Ms. White]
             there, and they interviewed her before they interviewed the
             defendant. So we have – and he did not interview the
             defendant until after that. That‟s when he read him his rights.
             But he didn‟t talk to him prior to that. So there‟s really –
             even if you were to argue that he was in custody, he was read
             his rights. Officer Chapman didn‟t – he wasn‟t in custody at
             that time at all. So I‟m not going to find that this is a
             violation of [Miranda], mainly because he was Mirandized.
             And we have the document to prove that he signed the
             waiver. So I‟m going to deny your motion to suppress.

The defendant filed no additional motions to suppress.

               The Rules of Criminal Procedure mandate that a motion to suppress “must
be raised before trial.” Tenn. R. Crim. P. 12(b)(2)(C). Although the defendant did file a
pre-trial motion to suppress his statement to law enforcement officers, he based his
motion not on the issue of coercion but on a failure to properly advise him of his Miranda
rights; accordingly, the issue of a coerced confession was never properly before the trial
court. The defendant‟s failure to present this claim bars our consideration of the claim on
appeal. See State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues
raised for the first time on appeal are considered waived.”). The defendant claimed in his
motion for judgment of acquittal at the close of the State‟s proof at trial that the
defendant‟s “statement was made under duress,” and, in his motion for new trial, the
defendant referenced “coerced statements.” However, the defendant failed to present the
                                           -4-
issue of coercion before trial, and thus, the issue is waived. See Tenn. R. Crim. P.
12(f)(1).

             Moreover, even if the defendant had properly preserved the issue of
coercion on appeal, we conclude that the record does not support the defendant‟s claim.

               The Fifth Amendment to the United States Constitution provides that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “the Fifth
Amendment‟s exception from compulsory self-incrimination” applicable to the states
through the Fourteenth Amendment). This means that, to pass federal constitutional
muster and be admissible at trial, a confession must be free and voluntary and not
“„extracted by any sort of threats or violence, nor obtained by any direct or implied
promises, . . . nor by the exertion of any improper influence‟” or police overreaching.
Bram v. United States, 168 U.S. 532, 542-43 (1897) (citation omitted). The rule is
equally applicable to confessions given during custodial interrogations following
appropriate provision of Miranda warnings, see State v. Kelly, 603 S.W.2d 726, 728
(Tenn. 1980), and those provided before the defendant has been placed in custody, see
Arizona v. Fulminante, 499 U.S. 279, 286-88 (1991). To determine voluntariness, the
reviewing court must examine the totality of the circumstances surrounding the
confession to determine “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 – a question to be answered with complete disregard of whether or
not [the defendant] in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544
(1961).

               Article I, section 9 of the Tennessee Constitution provides that “in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. “The test of voluntariness for confessions under
Article I, § 9 of the Tennessee Constitution is broader and more protective of individual
rights than the test of voluntariness under the Fifth Amendment.” State v. Smith, 933
S.W.2d 450, 455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.
1994)); see also State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005). “The critical
question 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.‟” Smith, 933 S.W.2d at 455-56 (quoting Kelly, 603 S.W.2d at 728 (internal
citation and quotation marks omitted)).3

3
        This test is exactly the same as that promulgated in Rogers v. Richmond, 365 U.S. 534, 544
(1961), so it is not entirely clear that it actually effectuates the stated goal of providing more protection to
the criminally accused.

                                                     -5-
               In the instant case, the defendant agreed to accompany law enforcement
officers to the police station for further questioning. The defendant, who was attending
college at the time of the crime, was provided with Miranda warnings and signed a
waiver of his rights. The record reflects that the total time of the defendant‟s
interrogation was approximately one hour and that he waited in the interview room for
one to two hours prior to his interview while officers interviewed Ms. White. During that
pre-interrogation period, the interview room was unlocked, the defendant was not
handcuffed, and he was free to leave at any time. Although officers questioned the
defendant about his involvement in other robberies, the officers denied threatening to
prosecute the defendant for those crimes if he did not confess to his involvement in the
aggravated robbery of Mr. White. Detective Slusser did tell the defendant that he would
allow the defendant to go home that night if the defendant was honest with him – and the
defendant was, in fact, allowed to leave after giving his statement – but Detective Slusser
also told the defendant that “if the time does come that you have to get locked up, as long
as you stay in contact with me, I‟ll let you know when that comes so you can turn
yourself in.” When looking at the totality of the circumstances, it is clear that the
detective‟s statements could not be considered coercive or enforceable promises of
leniency.

             Accordingly, we affirm the judgment of the trial court.


                                                 _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




                                           -6-
