        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 2, 2009

           STATE OF TENNESSEE v. NATHANIEL RICHARDSON

                    Appeal from the Criminal Court for Shelby County
                      No. 05-04653 James M. Lammey, Jr., Judge



                 No. W2008-01652-CCA-R3-CD - Filed February 11, 2010


Appellant, Nathaniel Richardson, pled guilty to second degree murder in Shelby County and
received a twenty-year sentence. At the guilty plea hearing, Appellant reserved the following
certified questions of law for appeal pursuant to Rule 37(b)(2) of the Tennessee Rules of
Criminal Procedure:

       1) Whether the trial court erred by denying [Appellant’s] motion to suppress
       all the evidence taken from the trunk of the car that was seized by the police
       on September 13, 2004? Whether the seizure of the car from the parking lot
       where [Appellant] worked in the absence of a search warrant violated the U.S.
       Const. amend. IV and amend. XIV and Art. 1 § 7 and § 8 of the Tennessee
       Constitution and in violation of Rule 41 of the Tennessee Rules of Criminal
       Procedure; thereby[ ] requiring that the evidence taken from the trunk be
       suppressed? A search warrant was later signed on September 15, 2004[,] and
       the vehicle was searched.

       2) Whether the trial court erred by determining that [Appellant] was legally
       competent to stand trial.

We determine that the trial court properly denied the motion to suppress where officers had
probable cause to seize Appellant’s car. We decline to address Appellant’s remaining
arguments regarding his statements to police, detention by police, and validity of the search
warrant as they were not presented in the certified questions presented. Further, we
determine that the issue regarding Appellant’s competency is not dispositive and, therefore,
not a proper certified question. Accordingly, the judgment of the trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
C AMILLE R. M CM ULLEN, JJ., joined.

Phyllis Aluko, Assistant Public Defender, Memphis, Tennessee, for the appellant, Nathaniel
Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel W. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and David Zak, Assistant District
Attorney General; for the appellee, State of Tennessee.

                                                   OPINION

        Appellant was indicted for first degree murder by the Shelby County Grand Jury on
July 14, 2005. Appellant subsequently filed a motion to suppress the evidence seized as a
result of the “unlawful” search of a Chevrolet Lumina because no warrant existed at the time
the vehicle was seized, the officer who was issued a subsequent search warrant was not
present at the search and did not secure any of the collected items, there was no copy of the
warrant at the site of the search, and the car was stored in a location that was not secure and
safe from outside tampering. The trial court held a hearing on the motion to suppress.

       At the hearing, Sergeant Anthony Mullins testified that he was assigned to investigate
the death of Kenneth Miller, Jr. The victim’s body was found in a vacant house in Memphis
on September 9, 2004. The victim had been stabbed multiple times before being set on fire.


       Sergeant Mullins explained that during the investigation, he learned that Appellant
was the last person to be seen with Miller while the victim was alive. Appellant gave Miller
a ride in a white Chevrolet Lumina the night before Miller’s body was discovered. On
September 13, 2004, Sergeant Mullins and his partner, Sergeant Doreen Shelton,1 located
Appellant at his place of employment, Super Value grocery store. A white Chevrolet Lumina
was parked in the front of the store.

        Appellant agreed to cooperate with authorities and went with Sergeants Mullins and
Shelton to the police department to discuss the case. Appellant was advised of his Miranda
rights and signed a waiver. During the discussions, Appellant informed the officers that he
possessed an eleventh grade education. The officers, however, determined that Appellant
had difficulty reading some of the advice of rights form, so the form was read aloud to


         1
          Sergeant Shelton was later promoted to Lieutenant. For the sake of clarity, we will refer to her as Sergeant
Shelton, her status at the time of the proceedings herein.

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Appellant. The interview lasted approximately six hours, during which Appellant was
offered food and drink. Appellant refused these offers but requested and received a
bathroom break.

        Appellant gave a statement in which he admitted that he gave Miller a ride in his
Chevrolet Lumina for one or two blocks. At that time, the victim got out of the car and got
into another car with two black men. Appellant was not under arrest at the time he gave the
statement but during the course of the interview, Sergeant Mullins decided to arrest
Appellant and place him under arrest on a “48-hour hold” based on the fact that he admitted
to giving Miller a ride and was the last person seen with Miller alive. Sergeant Mullins also
felt that Appellant was “vague” on some of the details and went “back and forth in his
explanation of what happened” as far as whether Miller was going to give Appellant money
in exchange for the ride and the amount of money he would provide to Appellant for the ride.


        Sergeant Mullins left the police station at one point during the interview to take a look
at Appellant’s car. Sergeant Mullins suspected that Appellant’s car had been used to
transport the victim’s body because they had determined in the course of the investigation
that the victim was not killed at the location where the body was found. Appellant gave the
keys to the car to Sergeant Mullins when he was told that the car would be towed. Sergeant
Mullins looked in the windows but could not see everything inside the car because “[t]here
was some clothing or something that was obstructing the rear seat and floorboard of the car.”
Sergeant Mullins decided to tow the car because he “could not see everything in that
compartment.”

        During the interview, Appellant indicated that other people had access to the car. The
car was actually registered to someone other than Appellant and “another individual had
received a ticket in that vehicle.” Out of concern of preserving evidence, the car was towed
to the crime scene office, a garage-like facility within a larger building.

        Appellant was released from arrest at the expiration of the forty-eight hour hold, prior
to the issuance or execution of the search warrant.

        A search warrant was issued on September 15, 2004. Sergeant Mullins directed
forensic scientist Paulette Sutton and Sergeant Shelton to begin the search of the vehicle in
his absence. Sergeant Mullins appeared at the scene of the search about thirty minutes after
the search began. He saw the evidence that was recovered from the trunk of the car, which
included: a knife with a serrated blade, a box cutter, a white t-shirt, a pair of blue jeans, a red
plastic gasoline container, and a piece of paper with burn marks on it. When lab reports



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indicated that the victim’s blood was on the t-shirt and jeans found in Appellant’s car, he was
re-arrested and ultimately indicted for the victim’s death.

       The trial court denied the motion to suppress at the conclusion of the hearing. The
transcript reflects the trial judge’s decision to deny the motion to suppress, although the
appellate record contains no entry of an order denying the suppression motion. Specifically,
the trial court ruled that the seizure of the car was “reasonable under the [F]ourth
[A]mendment” and was based on probable cause. The trial court found that the officers had
evidence that Appellant was the last person seen with the victim while he was alive and
suspected that the victim had been transported in Appellant’s car from the murder site to the
location where the body was found. Further, the trial court determined that the fact that other
people had access to the car supported the decision to seize the car.

       Subsequently, the trial court had several hearings in early 2008 to determine
Appellant’s competency to stand trial. Appellant was evaluated by multiple doctors prior to
the hearing and had spent some time as a patient in a mental health facility prior to the
hearings. At least three of the doctors who evaluated Appellant reported that Appellant was
“malingering” or feigning mental illness. One of the doctors reported that Appellant was
depressed and “phase[d] in and out of competence” but could return to competence with
treatment. The majority of the doctors concluded, however, that Appellant exhibited some
form of mental illness but was competent to stand trial at that time. The trial court ultimately
determined that Appellant was competent.

       In July of 2008, Appellant filed a petition to enter a guilty plea. At the guilty plea
hearing, Appellant agreed to plead guilty to second degree murder in exchange for a twenty-
year sentence. At the guilty plea hearing, counsel for the State informed the trial court that,
had the case gone to trial, the proof would have established that:

       [O]n September 9 th , 2004, Kenneth Miller, Jr. was found inside a vacant house
       at 869 North Third Street.

              Homicide began investigating the case. Mr. Miller was the victim of
       a stab wound. He suffered numerous stab wounds, and then after dying, his
       body was burned. This did not happen at the location of the abandoned house,
       but he was transported there after death.

              At that point, officers were able to investigate the case; they began
       talking to witnesses and friends of the victim. They came upon a person they
       now know to be [Appellant] who was the last known person to see the victim
       alive. They were able to establish that he was the last person to see him alive.

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              Through their investigation, they developed enough evidence for a
       search warrant. They executed that search warrant on his vehicle. When they
       went into his vehicle, in the trunk of his vehicle, they found what appeared to
       be two box cutters and a knife with blood on them. That did not turn out to be
       the case. There was no blood on them. They were all clean. They were
       actually - it was actually paint.

              They also found a T-shirt and jeans that did have blood on them, and
       those came back to the victim through DNA analysis that was done days later.
       Based on the knives, based on the clothing, based on a third factor - that being
       a gas can in the back of the trunk along with accelerant on the T-shirt and
       jeans, the state had a circumstantial case to go forward with the fact that
       [Appellant] was, in fact, the one that last saw the victim, . . . , and did
       participate in his killing.

        The trial court accepted the guilty plea and the parties agreed to reserve the following
certified questions for appeal:

       1) Whether the trial court erred by denying the [Appellant’s] motion to
       suppress all the evidence taken from the trunk of the car that was seized by the
       police on September 13, 2004? Whether the seizure of the car from the parking
       lot where [Appellant] worked in the absence of a search warrant violated the
       U.S. Const. amend. IV and amend. XIV and Art. 1 § 7 and § 8 of the
       Tennessee Constitution and in violation of Rule 41 of the Tennessee Rules of
       Criminal Procedure; thereby[ ] requiring that the evidence taken from the
       trunk be suppressed? A search warrant was later signed on September 15,
       2004[,] and the vehicle was searched.

       2) Whether the trial court erred by determining that [Appellant] was legally
       competent to stand trial.

                                           Analysis

                                     Search and Seizure

        On appeal, Appellant argues that his “warrantless arrest” was not based on probable
cause. Further, Appellant contends that his statements to officers and the evidence seized
from the car were the result of his warrantless arrest. Appellant also argues that the search
of his car was illegal because the police lacked probable cause to seize it without a warrant.
Finally, Appellant contends that the search warrant was invalid because there was insufficient

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probable cause to support the issuance of the warrant and the warrant was executed illegally.
The State counters that the record supports the trial court’s determination that the officers
properly seized Appellant’s car based on probable cause. Further, the State suggests that “all
issues concerning the detention of [Appellant], the validity and execution of the search
warrant and the voluntariness of [Appellant’s] statement are beyond the scope of the certified
question. It is plain from the written reservation of the certified question that the State is
correct and we cannot review these latter issues.

        This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise. State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)
(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party
in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16
S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).
“Questions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts
is de novo, with no presumption of correctness. State v. Walton, 41 S .W.3d 75, 81 (Tenn.
2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on
evidence that does not involve issues of witness credibility, however, appellate courts are as
capable as trial courts of reviewing the evidence and drawing conclusions, and the trial
court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000).

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures by government agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These
constitutional provisions are designed to ‘safeguard the privacy and security of individuals
against arbitrary invasions of government officials.’” State v. Keith, 978 S. W.2d 861, 865
(Tenn. 1998) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). The
Tennessee Supreme Court has noted previously that “[a]rticle I, [section] 7 [of the Tennessee
Constitution] is identical in intent and purpose with the Fourth Amendment [of the United
States Constitution],” and that federal cases applying the Fourth Amendment should be
regarded as “particularly persuasive.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968).

      Under both constitutions, “a warrantless search or seizure is presumed unreasonable,
and evidence discovered as a result thereof is subject to suppression unless the State
demonstrates that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” Yeargan, 958 S .W.2d at 629 (citing

                                              -6-
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)); see also State v. Garcia, 123
S.W.3d 335, 343 (Tenn. 2003).

        The “automobile exception” allows police officers to search or seize a vehicle without
a warrant if they have probable cause to believe the vehicle contains contraband. Carroll v.
United States, 267 U.S. 132, 149 (1925); State v. Leveye, 796 S.W.2d 948 (Tenn. 1990).
The rationale for the exception rests upon (1) the impracticability of obtaining a search
warrant in light of the inherent mobility of an automobile; and (2) the reduced expectation
of privacy with respect to one’s automobile. California v. Carney, 471 U.S. 386, 390-93
(1985); South Dakota v. Opperman, 428 U.S. 364, 367 (1976). “Probable cause has been
defined as a reasonable ground for suspicion, supported by circumstances indicative of an
illegal act.” State v. Hemming, 975 S.W.2d 290, 294 (Tenn. 1998). If the police have
probable cause to believe that an automobile contains contraband, the officers may either
seize the vehicle and then obtain a warrant or they may search the vehicle immediately.
Chambers v. Maroney, 399 U.S. 42, 52 (1970).

        Looking at the case herein, the investigation revealed that Appellant was the last
person seen with the victim alive. Officers knew that Appellant had given the victim a ride
in the Lumina on the night before the victim’s body was discovered. Appellant was vague
and inconsistent under questioning about whether the ride Appellant gave the victim was for
money or not. The car was parked in a public lot and Appellant had informed the officers
that other people had access to the vehicle. Officer Mullins expressed concern about the
mobility of the vehicle and the preservation of any evidence that might have been inside.
Further, officers knew that the victim’s body had been transported from the scene of the
murder to the location where the body was found. Although, this case presents a close
question, we believe there is at least minimal probable cause to seize the Appellant’s car and
tow it to a secure location. This issue is without merit.

                                        Competency

       Appellant also challenges the trial court’s determination that he was legally competent
to stand trial. The State argues that this issue is not dispositive and, therefore, not
appropriate for review via a certified question of law. We agree.

      For a question to be dispositive we “must either affirm the judgment or reverse and
dismiss. A question is never dispositive when we might reverse and remand . . . if we . . .
decided the question on its merits and found in favor of the defendant.” State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984). Further, a question regarding suppression of the
evidence is not dispositive if other incriminating evidence exists in the record outside the
scope of that question. State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007).

                                             -7-
        In State v. Bailey, 213 S.W.3d 907 (Tenn. Crim. App. 2006), this Court examined the
issue of a defendant’s competency in the context of a certified question and determined that
the resolution of the issue would not result in a final disposition of the case because, even if
the court determined that the trial court erred, the result would be to remand the matter to the
trial court. Id. at 912. Thus, we determined that this issue was not dispositive and that the
court was without jurisdiction to make a determination on the matter. The case herein is akin
to Bailey. A determination of incompetence would not lead to a dismissal of the charges
against Appellant. This question was not properly certified. Accordingly, we are without
jurisdiction to review this issue on appeal.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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