        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   March 6, 2012 Session

                  STATE OF TENNESSEE v. ANDREW HAYES

                  Appeal from the Criminal Court for Shelby County
                   No. 08-03864    Carolyn Wade Blackett, Judge




                 No. W2010-02641-CCA-R3-CD - Filed August 6, 2012


The defendant, Andrew Hayes, appeals his Shelby County Criminal Court jury convictions
of felony murder and aggravated robbery, claiming that the trial court erred by admitting
certain evidence, that the trial court erred by denying his motion to suppress the statements
he made to police, that the evidence was insufficient to support his convictions, and that the
trial court committed plain error in its instructions to the jury. Discerning no error, we affirm
the judgments of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and A LAN E. G LENN, J., joined.

Lance R. Chism (on appeal); and Coleman Garrett and David Stowers (at trial), Memphis,
Tennessee, for the appellant, Andrew Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Patience Branham and Jennifer
Morris, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

              The defendant’s convictions in this case relate to the August 2007 beating
death of the victim, Danny Harris, whose badly-decayed corpse was discovered inside his
Memphis apartment on October 26, 2007.

            At trial, Janice Jefferson, who testified that she was more commonly known
as “Snow” and sometimes known as Janice May, said that in August 2007 she lived at 1651
Depass Street in Memphis along with the defendant, her daughter, Chawonna Jefferson, and
her sons, John Jefferson and Tamarion Jefferson.1 Snow testified that the defendant, who
had “a nervous condition,” was dating her daughter and that he helped pay the rent with his
disability proceeds. She said that he also did “a little work on the side” for a neighborhood
grocer.

                Snow testified that, toward the end of August 2007, Sarah Lucas and her
boyfriend, an Hispanic man named “Miguel,” moved into the Depass Street residence
because Ms. Jefferson and the defendant were preparing to move out. Tammy Vance, Sarah
Lucas’ mother, also moved in for a brief time, telling Snow that she needed a place to stay
while her boyfriend, the victim, “was in rehab.” Snow recalled that Ms. Vance “had a black
eye and like a deep scratch mark on her forehead” and that she claimed that the victim “had
hit her in the eye because he was drinking and that’s what made him go in rehab.” Snow said
that the two women drove “a real nice truck” with four doors during the time that they lived
in the Depass Street residence and that the women told her that the victim had given them
permission to drive the vehicle during his stint in rehabilitation.

                Ms. Jefferson and the defendant did not move as planned but continued to live
in the house along with Ms. Vance, Ms. Lucas, and Miguel. In October, Snow asked Ms.
Lucas, Ms. Vance, and Miguel to move out of the house “because they couldn’t pay on the
utility bill.” Snow said that Ms. Vance was the first to leave the residence, but before she
left, Ms. Vance offered to compensate Snow with “some groceries and . . . some Icehouse
beer.” Later, Ms. Vance “brought in . . . a TV” that she claimed had been given to her by “a
lady around the corner.” Finally, Ms. Vance brought in a handgun and offered it as payment
to Snow; later, she asked Snow to help her sell the gun as well as the victim’s truck, telling
Snow that the victim “was going to be in rehab longer than she thought and he told her to go
sell the gun to get her some food and stuff.” Snow acknowledged that she directed Ms.
Vance to “Wheelchair John” to sell the gun. Snow testified, at that point, that she became
concerned about Ms. Vance’s selling the victim’s possessions, so she telephoned the police.

              On Halloween, Snow met police officers at a nearby Mapco convenience store,
where they had Ms. Vance “surrounded” in the victim’s truck. She led officers to the Depass
Street residence and told them about the items Ms. Vance had given in exchange for rent.
Snow testified that she granted officers permission to search the residence.

                Snow testified during cross-examination that she never saw the defendant in


        1
        Because all of the other witnesses referred to Janice Jefferson as “Snow” during their testimony and
because both Janice Jefferson and Chawonna Jefferson testified at trial, we will refer to the witness as
“Snow” to avoid confusion.

                                                    -2-
possession of any item belonging to the victim and that she had no personal knowledge of
the defendant’s being involved in the victim’s murder. She said that as far as she knew, the
defendant had no relationship with either Ms. Vance or Ms. Lucas and had not met them
prior to the women’s moving into the Depass Street residence.

               Snow testified that on Halloween, she was driven to the police station to give
a statement, and the defendant followed in a borrowed car to give her “a ride back home.”
She said that they left at approximately seven that evening and that officers returned to her
residence on November 2, “and that’s when they kept” the defendant. On November 2, she
returned to the police station during the early morning hours at the request of homicide
detectives, and when she arrived, the defendant “screamed out” to her, “I love you, momma,
take care of my baby.” Snow said that police told her that the defendant had implicated her
in the victim’s murder, and she asked the defendant why he had lied.

               Sarah Lucas testified that in August 2007, she moved from her Cecilia Street
residence to Snow’s Depass Street residence because she did not like the living conditions
at the Cecilia Street residence. She said that she knew the defendant only as “Snow’s son-in-
law” and that the victim “was a man that [her] mother lived with.” She described the victim
as “a very, very nice man.” Ms. Lucas testified that sometime in the beginning of August,
her mother, Tammy Vance, came to her Cecilia Street residence bleeding from a cut on her
head. She said that Ms. Vance, who was driving the victim’s truck, told her that the victim
had struck her and that he had decided to enter “rehab because he was drinking too much and
smoking too much cigarettes.” She said that she and her mother moved in with Snow
“[a]bout two weeks” later. Ms. Lucas recalled that Ms. Vance gave Ms. Lucas’ boyfriend
“a DVD/TV type deal” for his birthday and that she did not believe the item belonged to Ms.
Vance. She said that Ms. Vance also brought “a big huge TV” to Snow’s residence in the
back of the victim’s truck.

              Ms. Lucas testified that she first learned of the victim’s death when police
arrived to take her in for questioning. She said police told her that the victim had been
murdered inside his apartment. She said that police took her in for questioning because she
had pawned a “DVD/VCR” that belonged to the victim. She testified that she pawned the
item at her mother’s behest and that Ms. Vance told her that the victim had given his
permission for the item to be pawned. She said she knew nothing about the victim’s murder.

              During cross-examination, Ms. Lucas testified that she came to testify at trial
because Ms. Vance had implicated her in the victim’s murder, saying that she wanted to
“clear [her] name” and to “get justice for” the victim. She said that Ms. Vance had
implicated her in the victim’s murder “[b]ecause she’s crazy.” She acknowledged that Ms.
Vance was in prison for the victim’s murder. Ms. Lucas said that she had no knowledge of

                                             -3-
the defendant’s playing any role in the victim’s murder.

              Ms. Lucas conceded that the prosecutor had “cleared . . . up” the outstanding
warrants for drug possession and prostitution that she had when she moved to Texas in 2008.
She admitted that she went to Arkansas to obtain an identification card but denied that she
went with the victim and Ms. Vance to do so. Ms. Lucas said that Ms. Vance asked to stay
with her in August 2007 because “[s]he didn’t want to stay by herself across town.” To her
knowledge, Ms. Vance and the defendant did not have any type of personal relationship.

                Leslie Kinnard, an employee at Woodchase Apartments in 2007, testified that
in September of that year, she was directed to verify that the victim was still living in his
apartment because the rent had not been paid. Ms. Kinnard said that she knocked on the
door, and when she got no answer, she “peep[ed]” inside the door and saw that the furniture
was still in the apartment. She said that after the victim failed to pay his rent by the 15th of
October, the victim “was scheduled for a set out” at the end of the month. Ms. Kinnard said
that after following the appropriate legal procedure to evict the victim, she went to the
victim’s apartment with two sheriff’s deputies and the property manager. The deputies
entered the apartment first, and they came out and told Ms. Kinnard that the victim was
deceased inside the apartment.

              Shelby County Sheriff’s Department Deputy Stanley Gibson testified that he
went to the victim’s apartment to assist with an eviction on October 26, 2007. When he
entered the apartment, he noticed that the bedroom door was shut and that a towel or sheet
had been placed at the bottom of the door. He and his partner “popped the door open” and
“observed a body lying in bed” and smelled a strong odor. Deputy Gibson said that upon
seeing the body, they left the apartment, secured the door behind them, and contacted their
supervisors.

                Memphis Police Department (“MPD”) Officer Milton Gonzalez testified that
on October 31, 2007, his office received a call that the victim’s vehicle had been spotted in
the “Jackson/Orchi” area of Memphis. As he went to that location, he saw the vehicle being
driven by a white female. When the vehicle turned into the Mapco station, Officer Gonzalez
initiated a traffic stop and removed the driver from the vehicle. The driver identified herself
as “Tammy” and told officers that she was the victim’s girlfriend. The vehicle was towed
to the police station, and the driver was placed under arrest.

              MPD Officer John Pasley testified that the victim’s truck was seized and Ms.
Vance arrested at the Mapco station. He said that as the officers waited for homicide
detectives to arrive, Snow and Ms. Jefferson approached him and said that “they knew
something about the case” and that Ms. Vance “had left some items in their home that they

                                              -4-
thought [police] might be interested in.” He followed the women to their residence, where
Snow showed him “a TV, a cell phone, and a little notebook journal” that she believed had
belonged to the victim. Officer Pasley said that he then telephoned homicide detectives, who
told him to call the crime scene unit to photograph and collect the items. Officer Pasley
testified that he drove Snow and Ms. Jefferson to the police station and that the defendant
followed driving a separate vehicle. He then went to pick up Ms. Lucas, her boyfriend, and
Wayne Bobo. Unable to locate Mr. Bobo, he transported Ms. Lucas and her boyfriend to the
police station.

               On the following day, he and Sergeant Nelson met with John Watkins, who
was also known as “Big John” and who was confined to a wheelchair, based on information
they had that the victim’s handgun had been sold to Big John. They recovered the victim’s
weapon from Big John.

             Bureau of Alcohol, Tobacco, and Firearms Agent Richard Howard testified that
the Sig Sauer .40 caliber handgun recovered by Officer Pasley had been purchased by the
victim on October 31, 2000.

               MPD Crime Scene Investigator Jeffrey Alan Garey testified that when he
arrived at the victim’s apartment, “[t]he victim was laying on his back, on a bed, his left leg
was hanging off the left side of the bed, foot touching the floor. The body was in a severe
state of decomposition. There were flies throughout, maggots all over the body and the
bedding.” Investigator Garey testified that he collected a Sigarms “gunbox,” a piece of mail
postmarked August 14, 2007, a partial loaf of bread that bore an expiration date of August
17, bloody sheet rock and paint samples, three rings from the dresser, “an instruction manual
for a Hitachi DVD player with video cassette recorder,” and the sheets, pillows, and pillow
cases from the bed where the victim’s body was discovered. He photographed “an
unidentified light spot with other lighter speckled spots on the carpet” in the bedroom,
“possible blood spatter” on the south wall of the living room, “a corner of a wall area” that
appeared to have “a blood print,” a door jam “where a possible bloody print was located,”
and “blood spatter on two separate walls in the bedroom.”

                MPD Lieutenant Bart Ragland testified that Lieutenant Mason, who was the
lead investigator, asked him and Sergeant Parks “to go out and pick up” Ms. Vance, Snow,
Ms. Jefferson, and the defendant. He said they were not suspects and that they drove to the
police station in their own car. Lieutenant Ragland testified that he and Sergeant Parks
interviewed the defendant, who they believed had relevant information “[b]ecause of his
involvement with Tammy Vance and her daughter.” During that first interview, the
defendant’s “story kept changing and changing and changing.” Lieutenant Ragland said that
at that point, “it became obvious . . . that he knew more than he was telling . . . and that he

                                              -5-
had more involvement than just being a witness,” so they provided the defendant with
Miranda warnings. The defendant had some difficulty reading the advice of rights form, so
Lieutenant Ragland “read the entire thing to him and he understood it and we went over it.”
The defendant executed a written waiver of his rights at 3:15 p.m. on November 2, 2007, and
he provided a statement at 5:57 p.m. that same day implicating Ms. Vance in the victim’s
murder, telling officers that he traveled with Ms. Vance and Ms. Lucas’s boyfriend, Miguel,
to an apartment in Cordova to get a 36 inch television. The defendant told officers that he
opened a closed bedroom door inside the apartment because he “smelled the foul odor” and
that he saw the victim’s “body laying in the bed.” He said Ms. Vance told him “not to
worry” about the body because she and Miguel “were going to take care of it.” The
defendant described the body as “a white male, he was laying on his left side. He was about
in his mid-fifties. He was medium build. His skin was turning black. His hair was brown,
and he had a mustache, too.” He said that he did not notice anything in the victim’s mouth
or any blood in the room. He said that he and Miguel loaded the television into the victim’s
truck and that Ms. Vance also removed “a VCR and a DVD player that was built together and
DVD movies.” He said that they left the victim’s apartment and traveled back to the Depass
Street residence to pick up Ms. Lucas so that Ms. Lucas could pawn the items. The
defendant told Lieutenant Ragland that he did not tell anyone about seeing the corpse in the
apartment because he was afraid that he would be charged with the victim’s murder because
he had helped move the television.

               Lieutenant Ragland said the fact that the defendant was able to describe the
victim as a white male was suspicious because “the state of decomposition of the victim at
the time” made it difficult “to tell that was indeed a male white.” Lieutenant Ragland said
that he spoke with the defendant on a second occasion and that the defendant “gave a
statement, but he stopped. . . . And he refused to sign the statement.” Between the giving
of the two statements, Lieutenant Mullins “interviewed” the defendant, and “it became
apparent that he had more involvement” than he had originally admitted. During the taking
of the second statement, the defendant initially “admitted that he had actually been involved
and hit the victim with a steel pipe” before he “recanted and said that, no, he didn’t actually
do it.” Following this recantation, the defendant “became hysterical and started crying, and
at that point, it became obvious [that officers] couldn’t talk to him anymore.” Shortly
thereafter, the defendant was booked into the jail “on a forty-eight hour hold.”

                Lieutenant Ragland said that he became suspicious of the defendant when the
details of the defendant’s statement changed over tellings. Lieutenant Ragland admitted that
he was not present when the defendant first admitted striking the victim with a pipe. He said
that after recanting his admission of murder, the defendant blamed the victim’s murder on
Wayne Bobo, Snow, and Ms. Jefferson. He said that the defendant became “hysterical” and
that it was impossible to continue the interrogation. Lieutenant Ragland denied that the

                                              -6-
defendant was upset at being accused of a crime he did not commit and said that the
defendant was upset “[b]ecause he had admitted to his involvement and he knew he was up
shit creek without a paddle, that’s why.” He said that the defendant immediately began
recanting and blaming others “because that’s what criminals do.”

               MPD Sergeant Anthony Mullins testified that he became involved in the
investigation when he arrived at the scene. Later, Sergeant Mullins interviewed the
defendant after the defendant was “developed as a possible suspect.” He recalled that when
he first came into contact with the defendant, the defendant was in Lieutenant Toney
Armstrong’s office. During that encounter, the defendant “could describe things in the
apartment and describe things that happened and the more we asked him about what
happened, he gave particular details that no one would know[] unless they committed the
act.” Sergeant Mullins said that upon further questioning, the defendant admitted killing the
victim, telling officers,

              They went there, him and Tammy Vance, to rob [the victim],
              and when they got inside an argument ensued. He wanted to
              know, [the victim] wanted to know why they were there, how
              they got in his apartment, because Miss Vance had a key. And
              during the argument, Tammy Vance threw a container of bleach
              at [the victim] and then he said he struck [the victim] in the head
              with an iron pipe, pushed him in the bedroom and struck him
              again, and again, and again. Ultimately, he said, between seven
              and nine time[s].

               Sergeant Mullins said that the defendant’s statement “explained some of the
things” that police had seen in the victim’s apartment, like the rag in the victim’s mouth,
which the defendant said Ms. Vance had “stuck . . . in [the victim’s] mouth to stop him from
screaming.” Sergeant Mullins said that when they started to take a “formal” statement the
second time, the defendant “was getting some [details] wrong” such as the location of the
victim’s apartment. When Sergeant Mullins questioned the defendant about the mistakes,
the defendant became “very upset” and said that “people have threatened him about this
incident.” The defendant then blamed Wayne Bobo and an individual named Miguel for the
victim’s murder but continued to acknowledge that he was present during the murder.
During this time, the defendant was “[l]oudly crying and yelling.” When it became apparent
that they would be unable to obtain a statement from the defendant, they took him “down to
the jail on a hold” because they “felt like” they had sufficient proof “to charge him” but
“weren’t prepared to charge him at that point.”

              Sergeant Mullins testified that officers brought the defendant to the homicide

                                              -7-
office for another interview on the following morning. The defendant was provided Miranda
warnings a second time. At that point, the defendant provided a statement admitting that he
murdered the victim by striking him with a metal pipe “about seven or eight times on the
head.” He said that he went to the victim’s apartment “[t]o rob him. Tammy said to ride
with her to rob her boyfriend.” The defendant admitted, “I struck him the first time with the
pipe. She grabbed [the victim] by the mouth and shoved a face towel in his mouth.” The
defendant said that he did not get blood on him and that Ms. Vance threw the murder weapon
into the Wolf River.

                 Sergeant Mullins testified that he had been trained in “basic blood stain pattern
analysis,” which he described as “locating, analyzing, and documenting blood stain patterns
on crime scenes and then interpreting that evidence to determine what can be determined.”
He said that “victim location, assailant location” and “how the crime occurred” could be
determined by analyzing blood stain patterns. Sergeant Mullins testified that he had been at
the crime scene on a single occasion “for a matter of hours” and that the defendant’s
statement “was corroborated by what [Sergeant Mullins had seen] at the crime scene
previously.” He noted “cast-off” blood stains on the wall in the bedroom, which he described
as “coming as a result of the blows” to the victim. He said, “Once a blow is given and blood
is transferred from him to the instrument, every swing is going to cast blood off of that
object, and in this case, a lot of it hits the surface of the wall.” Sergeant Mullins also
identified blood cast off on the floor and the closet door. Sergeant Mullins testified that
based upon the “six distinct patterns” of blood stain, it appeared that the victim “had been
hit at least six to eight times.” He said that a “hard shove” would have sent the victim from
the doorway of the bedroom onto the bed.

                Doctor Marco Ross, the forensic pathologist who performed the victim’s
autopsy, testified that the cause of the victim’s death was “[b]lunt force injuries of the head
and asphyxia.” Doctor Ross testified that the victim suffered “fractures of the skull in the
right frontal area [and] the left frontal area” as well as “some fractures involving the bones
around the orbit of the right eye, and the face, and a little bit on the right cheek, and the roof
of the orbit on the right eye.” In addition, the victim “had a fracture of the left upper canine
tooth,” which Doctor Ross found in “the airway of the right lung, probably in the region of
the right main stem bronchus.” Doctor Ross identified “some hemorrhage or material
consistent with hemorrhage in the brain itself, although, due to the decomposed nature of the
brain, it was difficult to precisely delineate where that hemorrhage may have originally come
from.” Doctor Ross noted that the victim was in “a moderately advanced stage of
decomposition.” Doctor Ross said that the victim “had an orange towel that was stuffed into
his mouth” and that the towel pushed the victim’s tongue back “and effectively block[ed]”
the victim’s airway. The location of the tooth in the bronchial tubes indicated that the tooth
was knocked out before the rag was stuffed into the victim’s mouth.

                                               -8-
               Doctor Ross testified that the victim suffered “a total of eight lacerations to the
head area” and that “based upon the locations of the lacerations on the head and given the
configurations of the head and face, . . . a minimum of five separate impacts to the head and
face were sustained.” He explained that his findings indicated that the victim suffered a
minimum of five and a maximum of eight blows to the head. Toxicology testing detected
“the presence of ethanol at a level of 199 milligrams per deciliter which on the breathalyzer
scale is similar to a .19,” but Doctor Ross cautioned that “alcohol typically forms as a result
of the decomposition process.”

               Doctor Ross removed the victim’s pacemaker device during the autopsy.

               Joel Hunt, an employee in the “pacing division” of Boston Scientific, testified
that he was charged with programming and trouble-shooting implantable pacemakers and
defibrillators. Mr. Hunt identified the device removed from the victim as “a dual chamber,
meaning it can pace and defibrillate the top chamber and the bottom chamber of the heart.”
By examining the data he removed via computer from the victim’s pacemaker, Mr. Hunt
learned that on August 20, 2007, the victim’s heart rate accelerated to 205 beats per minute,
activating the pacemaker, which regulated the heart rate. The victim’s heart rate then
accelerated to 289 beats per minute, which activated the defibrillator. The defibrillator
delivered two shocks “and then, from that point on nothing else is . . . detected or sensed.”
On October 27, 2007, the pacemaker delivered shocks, which could have been attributed to
the autopsy. Although he could not say when the victim died, Mr. Hunt could say that all
heart activity ceased on August 20, 2007.

               Following Mr. Hunt’s testimony, the State rested.

              Doctor Randy Schnell, Clinical Services Coordinator of the Memphis City
Schools Mental Health Center, identified a psycho-educational evaluation performed on the
defendant to determine the defendant’s eligibility for special education services. The
defendant’s intelligence quotient (“IQ”) at the time of the test in 1992 was 62, which Doctor
Schnell described as “well below average” and as indicating that the defendant’s “mental
development would be significantly delayed compared to other children his age.” He said
that the defendant’s IQ score “was consistent with mental retardation.” The defendant’s
scores on the Woodcock Johnson Psychoeducational Battery and the Vineland Adaptive
Behavior Scales confirmed a diagnosis of mental retardation. He said that it was
“[e]xtremely unlikely” that the defendant’s IQ score would have increased to normal levels
by adulthood, noting that IQ scores “are reasonably stable by age fourteen,” the age at which
the defendant was tested.

               Twenty-one-year-old Chawonna Jefferson, testified that she and the defendant

                                               -9-
dated for several years and had a three-year-old child together. She said that at the time of
the victim’s death, she and the defendant lived with her mother, Snow. Ms. Jefferson said
that Ms. Vance and Ms. Lucas came to live in the home in late August 2007 and that at that
time the women were driving a Silverado truck. She recalled that Ms. Vance had a bruise
on her head and a black eye.

               The 29-year-old defendant testified that he had never met the victim. The
defendant said that he only went as far as the seventh grade and that he had taken only
resource classes. He testified that his only source of income at the time of the victim’s
murder was a Social Security Disability check of $685 per month. He said that he worked
at a neighborhood store sweeping the floor and stocking shelves in exchange for “Pampers
and milk to provide” for the child he had with Ms. Jefferson. The defendant recalled that he
first met Ms. Vance when she and Ms. Lucas moved into the residence owned by Snow. At
that time, the women were traveling in the victim’s truck. He said that Ms. Vance “had a
gash in the center of her forehead and her eye was black.”

               The defendant testified that on November 2, 2007, officers returned to the
Depass Street residence and asked him, Ms. Jefferson, and Snow to return to the police
station for questioning. He said that they traveled to the police station together in the family
vehicle. The defendant claimed that after he had waited alone in an interview room for
several hours, Lieutenant Ragland told him that Ms. Vance had implicated him in the
victim’s murder. He said that he told them that he had no part in the victim’s death. The
defendant testified that although he initially denied any knowledge of Ms. Vance’s
possession of the victim’s handgun, he eventually told officers that he had gone with Ms.
Vance and Snow to sell the gun to Wheelchair John. He said that the initial interrogation
lasted “hours” and that he “got tired of sitting there.” He claimed that the officers continued
to scream at him for hours until he finally said, “What the f*** do you want to hear, what do
you want me to tell you[?]” He said that at that point, the officers created a statement that
was allegedly given by him.

               The defendant testified that although he had no knowledge whether Ms. Vance
had killed the victim, he told the officers that she had “probably” killed the victim because
she had accused him of doing so. He said that when he was in the office, the officers showed
him a live feed of Ms. Vance’s interrogation and told him that she was accusing him of the
murder. The defendant admitted accusing a number of others, including Snow, of being
involved in the murder “just so they would just leave [him] alone.”

              During cross-examination, the defendant said that he had never given a
statement in a criminal case prior to this one and that he had never testified in court. The
defendant admitted that he had tattoos of a pitchfork and “folk,” which were associated with

                                              -10-
the Gangster Disciples. The defendant questioned the State’s evidence, saying,

              The only evidence you all got against me is what Tammy said
              and that bogus statement that I gave. That’s all you got. The
              detective just admitted it yesterday. If I wouldn’t have said I
              had nothing to do with killing Mr. Danny Harris, I wouldn’t be
              sitting here today. By me being stupid and constantly just
              allowing them to jus[t] drill me the way they did, if I would have
              just left it alone and let them deal with the[ir] job, I wouldn’t be
              sitting here today. You know it and I know it.

The defendant insisted that he did not commit the crime, claiming that his statement
contained only the repeated details about the crime that detectives had provided to him.

               Tammy Vance testified that she pleaded guilty to first degree murder and
aggravated robbery related to the victim’s death. She nevertheless denied having killed the
victim, whom she said she met through a chat line in January 2007. Ms. Vance testified that
she lived with the victim for “about two and a half months” and that, during that time, the
victim was not in good health because “all he did was drink beer and smoke cigarettes.” She
said that the victim gave her free access to his truck and personal finances, which came
primarily from retirement benefits, so that she could manage his personal affairs. Ms. Vance
claimed that the victim intended to file for bankruptcy because he could not make ends meet.
               Ms. Vance testified that on August 20, 2007, she and the victim woke early to
take Ms. Lucas to West Memphis to procure an identification card. She said that Ms. Lucas
was addicted to crack cocaine and that the victim “kind of felt for her because he had an
addiction.” After concluding their business, the three went to Burger King, where the victim
purchased food for Ms. Lucas. Ms. Vance said that when she told the cashier to “go ahead
and keep [the change] for somebody else,” the victim became “very irate” and “started
beating his fists on the dashboard, slapping his hat.” Despite the victim’s outburst, they
returned to the victim’s apartment, and she prepared a fried egg sandwich for the victim’s
lunch. She testified that as the victim ate, “he put the sandwich down and he got up and . .
. he balled up his fist and he hit me in my head and split my head wide open, and I was dazed,
I fell on my knees to the floor.” She said when she “came to” she found the victim and Ms.
Lucas in the victim’s bedroom. Ms. Vance claimed that Ms. Lucas “had hit him with a
hammer in the head, and he was laid back on the bed.” She said that she tried to stop Ms.
Lucas, but Ms. Lucas struck the victim “a couple of times” and then struck Ms. Vance one
time. According to Ms. Vance, Ms. Lucas struck the victim “a total of seven or eight times.
Then when she got through with that, she took a rag and . . . put it down in his mouth.”

              Ms. Vance testified that Ms. Lucas’ violent attack on the victim caused her to

                                             -11-
be “in total shock” and that she “did not know what to do.” She watched as Ms. Lucas
poured kerosene and some “cleaning substances” over the victim’s body. Ms. Vance said
that she complied with Ms. Lucas’ command to pack her things and that the two women left
the victim’s apartment in the victim’s truck. Ms. Vance claimed that Ms. Lucas put the
murder weapon in her bag and later disposed of it in a dumpster near a convalescent home.

                The two women returned to the victim’s apartment several days later to get a
television and other items to pawn for money. She first met the defendant on that day. She
said that she and Ms. Lucas had decided to blame the victim’s murder on Wayne Bobo and
that she initially did so when questioned by police. She testified that after police told her that
the defendant had confessed, she blamed the defendant for the murder in order to protect Ms.
Lucas. She said that “not a bit” of her statements incriminating the defendant was true.

                 Ms. Vance claimed that after she was charged with the victim’s murder, she
tried to tell her lawyer that Ms. Lucas had committed the murder. Despite her innocence, she
decided to plead guilty. She said that just prior to entering her pleas, she wrote a statement
exonerating the defendant and asked her attorney to give it to defense counsel.

              During cross-examination, Ms. Vance acknowledged that she continued to cash
the victim’s checks.

               Based on this evidence, the jury convicted the defendant as charged of felony
murder and aggravated robbery. The trial court imposed an automatic sentence of life with
the possibility of parole for the murder conviction and, following a sentencing hearing, a
concurrent sentence of 20 years for the aggravated robbery conviction.

               Following the denial of his timely but unsuccessful motion for new trial, the
defendant filed a timely notice of appeal. In this appeal, the defendant contends that the trial
court erred by denying his motion to suppress the incriminating statements he provided to
police, that the trial court erred by admitting into evidence six photographs depicting the
deceased victim, that the evidence adduced at trial was insufficient to support his
convictions, and that the trial court committed plain error in its instructions to the jury. We
consider each claim in turn.

                                     I. Motion to Suppress

              The defendant contends that the trial court erred by denying his motion to
suppress the inculpatory statements he provided to police, claiming that the statements were
obtained in violation of his constitutional rights. The State asserts that the trial court did not
err by denying the motion and admitting the statements as evidence at the defendant’s trial.

                                              -12-
              At the hearing on the defendant’s motion to suppress his pretrial statements as
involuntarily given, Lieutenant Ragland testified, as he later did at trial, that as he
interviewed the defendant, “it became obvious that he knew more about the case than he was
telling us and as we continued to interview him, we felt it was prudent to treat him as a
possible suspect.” The defendant was then advised of his rights, and he signed a waiver of
rights form. Lieutenant Ragland testified that after the defendant had some difficulty reading
the advice of rights form, he read the entire document aloud to the defendant. He said that
the defendant never asked for an attorney, never refused to answer any questions, and never
gave any indication that he did not understand the process.

                Lieutenant Ragland testified that the defendant was provided several breaks
to use the restroom and smoke cigarettes and that the defendant was offered food and water.
He denied telling the defendant what to say, noting that the officers “just wanted the truth.”
Upon further questioning, the defendant admitted that he had gone to the victim’s apartment
to help Ms. Vance retrieve a television to pawn and that he had seen the victim’s decaying
corpse during that outing. Lieutenant Ragland presented that statement to Sergeant Mason,
who then asked Sergeant Mullins to interrogate the defendant. Lieutenant Ragland testified
that after Sergeant Mullins interrogated the defendant, he asked Lieutenant Ragland to take
a “formal” statement from the defendant. In that statement, the defendant admitted killing
the victim.

              Lieutenant Ragland adamantly denied berating or threatening the defendant to
get him to provide an inculpatory statement.

              During cross-examination, Lieutenant Ragland acknowledged that he had
“basically” accused the defendant of lying, telling him that his statements were inconsistent.
Lieutenant Ragland said that the defendant did not tell him that he was a resource student.

               Sergeant Mullins testified that he interviewed the defendant in response to the
defendant’s interview with Lieutenant Ragland and “[b]ased on the information [officers]
were getting” from Ms. Vance. Sergeant Mullins said that when confronted with “all the
information,” the defendant “admitted that he was there and that he killed” the victim.
Although he had knowledge of the crime scene from having visited it, Sergeant Mullins
insisted that he did not relay any of that information to the defendant. He said that the details
provided by the defendant during his confession matched the crime scene.

                According to Sergeant Mullins, after the defendant gave the detailed
confession, Sergeant Mullins sent Lieutenant Ragland to get a transcriptionist to take the
“formal” statement. As they began taking the formal statement, however, the defendant “all
of a sudden . . . gets it all wrong. He’s not describing it the same way he described it before.”

                                              -13-
When Sergeant Mullins told him to start over again, the defendant “started panicking,
becoming upset, and claiming that others had committed the crime and threatened him and
threatened his family if he told anybody.” Sergeant Mullins said that the defendant “started
saying that Janice Jefferson, who he called mom, had done it. He said a guy named Wayne
Bobo had done it. He brought a couple of Hispanic names into it. Everybody but Andrew
Hayes.” At that point, they “stopped the statement.”

              Sergeant Mullins said that even during his breakdown, the defendant never
asked for an attorney, never asked for questioning to cease, and never indicated that he did
not understand the waiver of rights. Sergeant Mullins testified that the defendant provided
another statement after he spent several hours in the jail on a 48-hour hold. That statement,
he said, was consistent with the one given before the defendant’s breakdown on the previous
evening. Sergeant Mullins maintained that he did not threaten the defendant or tell him what
to say.

              During cross-examination, Sergeant Mullins testified that officers stopped
questioning the defendant when it became clear that further interrogation “would have been
counterproductive for everybody.” He acknowledged that they did allow Snow to confront
the defendant after he implicated her in the victim’s murder. He testified that he thought that
Ms. Vance might have been the first to implicate the defendant, and he acknowledged that
he confronted the defendant with Ms. Vance’s statement. He denied telling the defendant
everything that Ms. Vance had said or that the defendant was interviewed in the room
adjacent to Ms. Vance.

              Ms. Vance testified at the hearing that she heard detectives yelling and
screaming at the defendant and using “racial slurs.”

               The defendant testified that he only admitted killing the victim because the
officers told him he would not be released until he told them what they wanted to hear. He
acknowledged that officers offered him food and drink and permitted him breaks to smoke.
He claimed, however, that they told him facts about the crime and showed him pictures of
the crime scene before he confessed. He also claimed that officers did not provide Miranda
warnings until he had already provided a confession.

              During cross-examination, the defendant conceded that he traveled to the
police station voluntarily in his own vehicle and that he had signed two advice of rights
forms.

                The trial court denied the defendant’s motion to suppress, concluding that “the
totality of the circumstances reflects an uncoerced choice to speak with law enforcement.”

                                             -14-
The court accredited Lieutenant Ragland’s testimony that he read the advice of rights form
aloud to the defendant and observed that the defendant had signed two rights waivers and had
initialed various parts of each incriminating statement.

             On appeal, the defendant again complains that the statements were the product
of law enforcement coercion. We consider the claim with a few well-settled principles in
mind.

                A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge, and this court must uphold a trial court’s findings of
fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23;
see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is
reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

                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.

                                              -15-
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 petitioner’s will to resist and
bring about confessions not freely self-determined.’” Smith, 933 S.W.2d at 455-6 (quoting
Kelly, 603 S.W.2d at 728 (internal citation and quotation marks omitted)).2

              Upon our review, we conclude that the record simply does not support the
defendant’s claim of coercion. The defendant, in his late twenties, was provided with
Miranda warnings. Lieutenant Ragland read both the warnings and the advice of rights form
aloud to the defendant on at least one occasion. Although the defendant’s interrogation on
November 2 was lengthy and no doubt intense, no evidence supports a claim that his will to
resist was overborne. He was provided breaks to use the restroom and smoke, provided with
a drink, and offered food. Although this court has roundly condemned the 48-hour hold
procedure utilized by the Memphis Police Department, see, e.g., State v. Courtney Bishop,
No. W2010-01207-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Jackson, Mar. 14, 2012),
the record in the present case establishes that probable cause for the defendant’s arrest
existed at the time he was booked into the jail on the 48-hour hold. Under these
circumstances, the trial court did not err by refusing to suppress his statements.

                                    II. Photographs of the Victim

             The defendant asserts that the trial court erred by admitting into evidence six
photographs of the victim’s body in an advanced state of decomposition, arguing that the
photographs were more prejudicial than probative. The State contends that the photographs,
although unpleasant, were not so graphic as to render them unfairly prejudicial.

               “The general rule . . . is that photographs of a murder victim’s body are
admissible if they are ‘relevant to the issues on trial, notwithstanding their gruesome and
horrifying character.’” State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003) (quoting State v.
Banks, 564 S.W.2d 947, 950-51 (Tenn. 1978)). Relevant evidence 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 than it would be without the evidence.” Tenn. R. Evid.
401. Even relevant photographs may be excluded, however, if their probative value is
substantially outweighed by the danger for unfair prejudice. Tenn. R. Evid. 403; Banks, 564
S.W.2d at 950-51. The term “unfair prejudice” has been defined as “[a]n undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”


        2
          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.

                                                   -16-
See Banks, 564 S.W.2d at 951. “The admission of photographs lies within the sound
discretion of the trial court and will not be overturned on appeal absent a showing that the
trial court abused that discretion.” State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011) (citing
Banks, 564 S.W.2d at 949).

               Although the photographs are quite graphic, the trial court did not abuse its
discretion by admitting them into evidence. As the State points out, the trial court excluded
27 other photographs offered by the State at trial and admitted these six to depict specific
injuries described by the medical examiner. The record does not support the defendant’s
assertion that the State’s purpose in admitting the photographs was to inflame the jury.
Photographs of a corpse in an advanced state of decomposition are inherently unpleasant, but
such does not render them inadmissible per se. The defendant is not entitled to relief on this
issue.

                               III. Sufficiency of the Evidence

              The defendant avers that the evidence adduced at trial was insufficient to
support his convictions of felony murder and aggravated robbery. The State asserts that the
evidence was sufficient.

                We review the defendant’s claim mindful that our standard of review is
whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). “[D]irect and circumstantial
evidence should be treated the same when weighing the sufficiency of such evidence.” State
v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

             First degree murder, as charged in this case, is “[a] killing of another
committed in the . . . attempt to perpetrate any . . . robbery.” T.C.A. § 39-13-202(a)(2).
“Aggravated robbery is robbery as defined in § 39-13-401 . . . [a]ccomplished with a deadly

                                             -17-
weapon or by display of any article used or fashioned to lead the victim to reasonably believe
it to be a deadly weapon; or . . . [w]here the victim suffers serious bodily injury.” Id. § 39-
13-402(a).

               Here, the jury obviously accredited the defendant’s pretrial statements
confessing the victim’s murder in graphic detail as well as the testimony of the officers who
took those statements and found the defendant’s in-court denials less than credible. The
defendant admitted to police that he entered the victim’s apartment along with Ms. Vance
with the intent to rob him and ended up killing him by striking him seven or eight times with
a metal pipe. The evidence at the scene, the condition of the body, and the medical
examiner’s description of the victim’s injuries corroborated the defendant’s confession of
murder. Other witnesses testified that they saw the defendant with property belonging to the
victim in the months following the victim’s death, corroborating his admission that robbery
was the motive for the victim’s death. Although Ms. Vance testified on the defendant’s
behalf that Ms. Lucas had murdered the victim, the jury, as was its prerogative, rejected this
testimony. The evidence adduced at trial more than sufficiently established the defendant’s
guilt of felony murder and aggravated robbery.

                                     IV. Jury Instructions

               Conceding that he failed to lodge a contemporaneous objection to the jury
instructions provided by the trial court and that he failed to include any issue related to the
jury instructions in his motion for new trial, the defendant asks this court to review the jury
charge for plain error in the trial court’s instructions regarding the definition of criminal
responsibility for the conduct of another. The State contends that the defendant waived
plenary review of the issue and that the defendant has failed to establish plain error in the
instructions provided by the trial court.

                Initially, as the defendant concedes, he has waived plenary consideration of any
issue related to the jury instructions by failing to object to the omission at trial, see Tenn. R.
Crim. P. 30(b); State v. Lynn, 924 S.W.2d 892, 899 (Tenn. 1996), and by failing to include
it in his motion for new trial, see Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no
issue presented for review shall be predicated upon error in . . . jury instructions granted or
refused . . or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as waived.”); see also
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the
right to argue on appeal any issues that should have been presented in a motion for new trial
but were not raised in the motion); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App.
1989).



                                              -18-
               Whether properly assigned or not, however, “an appellate court may consider
an error that has affected the substantial rights of a party at any time, even though the error
was not raised in the motion for a new trial” where consideration of the error is “necessary
to do substantial justice.” Tenn. R. App. P. 36(b). Before an error may be so recognized,
however, it “must be ‘plain’ and it must affect a ‘substantial right’ of the accused.” State v.
Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). Authority to correct an otherwise
“forfeited error” lies strictly “within the sound discretion of the [appellate court], and the
court should not exercise that discretion unless the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” United States v. Olano, 507 U.S.
725, 732 (1993) (citations omitted).

               In State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000), our supreme court
adopted the definition of “substantial right” promulgated by this court in Adkisson. There,
we held that “[a] ‘substantial right’ is a right of ‘fundamental proportions in the indictment
process, a right to the proof of every element of the offense, and is constitutional in nature.’”
Adkisson, 899 S.W.2d at 639. Our supreme court also adopted Adkisson’s five factor test for
determining whether an error should be recognized as plain:

              “(a) the record must clearly establish what occurred in the trial
              court;
              (b) a clear and unequivocal rule of law must have been
              breached;
              (c) a substantial right of the accused must have been adversely
              affected;
              (d) the accused did not waive the issue for tactical reasons; and
              (e) consideration of the error is ‘necessary to do substantial
              justice.’”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll five factors must
be established by the record before this court will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record that
at least one of the factors cannot be established.” Id. at 283. To be reviewable as “plain,”
the error “must [have been] of such a great magnitude that it probably changed the outcome
of the trial.’” Id. (quoting Adkisson, 899 S.W.2d at 642) (alteration in original). Finally, “the
burden of establishing entitlement to relief for plain error is on the defendant claiming it.”
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).

               An accused’s constitutional right to trial by jury, see U.S. Const. amend VI;
Tenn. Const. art. 1, § 6, encompasses a right to a correct and complete charge of the law, see
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court has a duty “to give a

                                              -19-
complete charge of the law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d
314, 319 (Tenn. 1986); see Teel, 793 S.W.2d at 249; see also Tenn. R. Crim. P. 30.

              The legal accuracy of the trial court’s instructions is a question of law subject
to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007).
The propriety of a given instruction is a mixed question of law and fact to be reviewed de
novo with a presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn.
2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

               In its instruction on the offense of first degree murder in the perpetration of a
felony, the trial court told the jury that, to convict the defendant, it must find “[t]hat the
defendant or one for whom the defendant is criminally responsible unlawfully killed the
alleged victim, and that the killing was committed in the perpetration of or the attempt to
perpetrate the alleged robbery.” The trial court did not define the concept of criminal
responsibility for the conduct of another. Indeed, the trial court did not mention the concept
again. During its deliberations, the jury sent the following question: “What is the meaning
of criminally responsible as it applies to first degree murder associated with aggravated
robbery[?]” The trial court responded, “The definition of criminal responsibility is in the jury
charge, and you’re going to have to find that definition. It’s already there. Talks about what
that means, and in fact, is there several times, all throughout the charge.”

               Despite the trial court’s remarks, the printed instructions provided to the jury
do not contain any definition or further reference to the concept of criminal responsibility.
That being said, the record clearly establishes that the omission of the instruction, even if it
was erroneous, was harmless beyond a reasonable doubt. The defendant was not charged
under a theory of criminal responsibility for the conduct of another, and the only testimony
that the victim was murdered by anyone other than the defendant came from Ms. Vance,
whose testimony the jury rejected out of hand. The defendant invites us to speculate that the
jury’s question evinced its consideration that someone other than the defendant committed
the murder, but we cannot and will not do so. Because any error in the omission of a
criminal responsibility instruction was harmless beyond a reasonable doubt, the error did not
adversely affect any substantial right of the defendant and consideration of the issue is not
“‘necessary to do substantial justice.’” Smith, 24 S.W.3d at 282 (quoting Adkisson, 899
S.W.2d at 641-42).

                                        V. Conclusion

              The defendant has failed to establish any error by the trial court requiring
reversal or that the evidence adduced at trial was insufficient to support his convictions.
Accordingly the judgments of the trial court are affirmed.

                                              -20-
       _________________________________
       JAMES CURWOOD WITT, JR., JUDGE




-21-
