         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE           FILED
                           DECEMBER 1997 SESSION
                                                       January 30, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     ) C.C.A. No. 01C01-9611-CC-00488
      Appellee,                      )
                                     ) Montgomery County
V.                                   )
                                     ) Honorable John H. Gasaway, Judge
MARCUS A. VELEZ,                     )
                                     ) (First Degree Murder)
      Appellant.                     )
                                     )




FOR THE APPELLANT:                   FOR THE APPELLEE:

Michael R. Jones                     John Knox Walkup
District Public Defender             Attorney General & Reporter
110 Sixth Avenue, West
Springfield, TN 37172                Daryl J. Brand
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     John Wesley Carney, Jr.
                                     District Attorney General

                                     Steven L. Garrett
                                     Helen O. Young
                                     Assistant District Attorneys General
                                     204 Franklin Street, Suite 200
                                     Clarksville, TN 37040




OPINION FILED: _______________________

AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
       The appellant, Marcus A. Velez, was convicted by a jury of first degree

murder. Montgomery County Circuit Court Judge John H. Gasaway sentenced

the appellant to life in prison. On appeal, the appellant presents five issues for

our review:



       1. Whether the evidence of premeditation and deliberation is
          sufficient to support the jury’s verdict.

       2. Whether the trial court erred in admitting photographs of the
          victim’s body.

       3. Whether the judge improperly instructed the jury on the
          punishment for first degree murder.

       4. Whether the trial court erred in admitting the appellant’s
          statements into evidence.

       5. Whether the trial court erred in permitting the state to question
          witness Michael Bowers about his plea agreement with the
          state.


       After carefully reviewing the record before us, we affirm the appellant’s

conviction.



       On Saturday morning, March 4, 1995, the appellant, seventeen-year-old

Marcus Velez; sixteen-year-old Mike Bowers; a fourteen-year-old friend of the

appellant whom we will refer to as “the minor;” and the victim, eighteen year-old

Kenneth Battisti, drove to the Bowers’ family farm outside of Clarksville. Upon

arrival, the appellant shot the victim twice in the back. Both Bowers and

appellant were charged. Bowers entered into a plea agreement with the state.

The appellant went to trial for first degree murder.



       The evidence revealed that Bowers and the minor were good friends of

the appellant. The appellant had been a friend of the victim. All the boys were

involved in a martial arts club at a local recreation center. The appellant and the

victim had a falling out of some sort. The victim made disparaging remarks

about the appellant’s martial arts ability and criticized the appellant for the way


                                         -2-
he treated his mother. The appellant told Bowers and the minor that he was

going to kill the victim and bury the body. The minor testified that the appellant

made up a story to lure the victim to the Bowers’ farm and kill him. The appellant

told the victim that he could make some money for helping out at the Bowers’

farm Saturday morning.



       On Friday, March 3, the appellant and the minor went to Bowers’ house

and took a rifle and ammunition to target practice. Bowers later joined them.

The minor testified that while shooting at some boards, the appellant stated that

the bullets would go straight through the victim just as they went straight through

the wood. Later that day, the appellant and the minor went to Buddy Newman’s

house where the appellant stated that he was tired of the victim’s “bullshit” and

that he, the appellant, was going to take care of it. The appellant told Bowers

and the minor that the victim did not deserve to live.



       The appellant took the minor home and Bowers spent the night with the

appellant. The next morning, the appellant and Bowers picked up the minor and

the three went to the recreation center for a scheduled sparring match. When no

one showed, the appellant drove to Newman’s house looking for the victim.

Newman said that the victim was at Josh Carrier’s house. The appellant went to

Josh’s house and told Josh and Jamie Donegan that he needed the victim to

work on the farm.



       The appellant, Bowers, the minor, and the victim drove to the Bowers’

farm in the appellant’s car. The appellant had Bowers’ rifle and ammunition.

When they arrived, the appellant told the minor and Bowers to get out of the car.

The appellant and the victim drove several hundred yards into the farm property

and got out of the car. The appellant shot the rifle at a tree. Upon hearing the

shot, Bowers and the minor began running toward the appellant. When they saw

the victim standing, they slowed to a walk. The appellant then shot the victim in



                                        -3-
the back. Bowers and the minor ran to the scene where they found the victim

wheezing and groaning on the ground. The minor testified that the appellant

then asked, “Do you want me to shoot him one more time for good luck?” The

appellant shot the victim again in the back.



       The appellant laid some brush over the victim, and the three went to the

appellant’s grandfather’s house to get tools to bury the victim. They returned to

the farm and buried the victim in a shallow grave. Some of the residents in an

adjoining field watched the boys through binoculars. The boys returned the

tools, the rifle, and the ammunition. Later, the appellant told his mother and

Josh Carrier that he had taken the victim to the airport because the victim had

personal problems and wanted to run away from home.



       In his first issue, the appellant argues that the evidence of premeditation

and deliberation is insufficient to support the jury’s verdict. When an appellant

challenges the sufficiency of the evidence, this Court must determine whether,

after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of a crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Tenn. R. App. P.

13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The weight and credibility

of a witness’ testimony are matters entrusted exclusively to the jury as the triers

of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984); Byrge v. State, 575

S.W.2d 292 (Tenn. Crim. App. 1978). On appeal, the state is entitled to both the

strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.




                                         -4-
       A jury found the appellant guilty of murder in the first degree, which at that

time was defined as “[a]n intentional, premeditated and deliberate killing of

another.” Tenn. Code Ann. § 39-13-202 (Supp. 1994). A premeditated act is

“one done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-

13-201(b)(2) (1991). A deliberate act is “one performed with a cool purpose.”

Tenn. Code Ann. § 39-13-201(b)(1). Several factors which can support the

findings of premeditation and deliberation include the use of a deadly weapon on

an unarmed victim, declarations of a defendant of an intent to kill, evidence of

the procurement of a weapon, preparations for the concealment of the crime,

and calmness immediately after the killing. State v. Bland, No. 02-S01-9603-CR-

00032 (Tennessee Supreme Court at Jackson, filed December 1, 1997).



       The appellant cites to evidence that the shooting occurred during a state

of passion which, he argues, proves the lack of premeditation and deliberation.

Bowers testified that the appellant and the victim were extremely angry and that

they may have been fighting. Bowers also testified that the appellant was acting

very weird and unlike his normal self. The appellant cites to his own statement in

which he described himself as very angry and described the shooting as “just

then, I shot him.”



       The evidence is sufficient to support the jury verdict of first degree murder.

The evidence of premeditation and deliberate is substantial. The appellant made

statements before the murder that he was going to kill the victim. He devised a

plan to lure the victim to the Bowers’ farm. He went target shooting. He shot an

unarmed victim twice in the back. He calmly buried the victim in a businesslike

fashion and then fabricated a story to cover up the crime. Statements of intent to

kill are evidence of premeditation as are statements such as “I am going to bury

the body where no one will find it” and “Do you want me to shoot him one more

time for good luck?”




                                         -5-
       The appellant next argues that the trial court erred in admitting

photographs of the victim’s body. He contends that the only issue on which

these photos could have been probative was whether the killing was

premeditated and deliberate. The appellant argues that the prejudicial effect of

the photos exceeded their probative value because other evidence established

that the appellant shot the victim twice in the back. Over the objection of the

appellant, the trial court admitted two photographs of the victim through the

testimony of the medical examiner, Dr. Charles Harlan. The trial court ruled that

the photos were probative and corroborative of Dr. Harlan’s testimony that the

victim died of gunshot wounds. The photographs show the bullet entry wounds

to the victim’s back and the bullet exit wounds to the victim’s chest.



       Whether to admit photographs is within the sound discretion of the trial

court and will not be reversed on appeal absent a clear showing of an abuse of

discretion. State v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996); State v. Evans,

838 S.W.2d 185, 194 (Tenn. 1992); State v. Banks, 564 S.W.2d 947, 949 (Tenn.

1978). To be admissible, the photograph must be relevant and probative to

some issue at trial. Tenn. R. Evid. 401; McCary, 922 S.W.2d at 515. Even if

relevant, the photograph may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. Tenn R. Evid. 403; McCary, 922

S.W.2d at 515.



       The manner in which the victim was killed is relevant to the issues of

premeditation and deliberation. Banks, 564 S.W.2d at 949-50. The appellant

contended at trial that the killing was of a lesser degree than murder.

Photographs showing that the victim was shot twice in the back are relevant and

probative evidence of premeditation and deliberation. Further, as asserted by

the state and found by the trial court, the photos are illustrative aids to Dr.

Harlan’s testimony. The probative value of the photographs, taking into

consideration other evidence that the victim was shot twice in the back, is not



                                          -6-
substantially outweighed by any prejudicial effect that they may have had on the

jury. The photographs are not gruesome or shocking as suggested by the

appellant. The body was not in an altered condition. The photographs show

only the victim’s back and chest. The photos do not show the victim’s head and

show very little, if any, blood around the victim’s wounds. We find no reversible

error regarding the trial court’s decision to admit the photographs into evidence.



         The appellant next argues that the judge improperly instructed the jury on

the punishment for first degree murder. The appellant argues that the trial court

should have instructed the jury that if the appellant was sentenced to life

imprisonment that he would serve a minimum of twenty-five years in prison

before being eligible for parole consideration. Tennessee Code Annotated §§

39-13-204(e)(2) & -207(a) (Supp. 1995) provide in relevant part that in a first

degree murder case in which the state seeks the punishment of death or life

without the possibility of parole, the trial court must instruct the jury that a

defendant who is sentenced to life imprisonment shall not be eligible for parole

until the defendant has served twenty-five full calendar years of such sentence.

In the case at bar, the state did not file a notice of intent to seek the death

penalty or life without the possibility of parole. Therefore, the court was not

required under these sections to so instruct the jury. When no such notice is

filed and the defendant is found guilty of first degree murder, the court imposes

the sentence of life imprisonment. Tenn. Code Ann. § 39-13-208(c) (Supp.

1995).



          The appellant also cites Tennessee Code Annotated § 40-35-201(b)(1)

(Supp. 1995) which provides: “[i]n all contested criminal cases, except for capital

crimes which are governed by the procedures contained in 39-13-204 and 39-13-

205, upon the motion of either party, filed with the court prior to the selection of

the jury, the court shall charge the possible penalties for the offense charged and

all lesser included offenses.” As the state points out, the appellant never filed a



                                          -7-
motion requesting the court to instruct the jury on applicable penalties for first

degree murder and all lesser included offenses. Therefore, the trial court was

not required by this section to instruct the jury. This issue is without merit.



       The trial court’s instruction to the jury on the applicable penalties benefits

the appellant. The court instructed the jury that the punishment for first degree

murder was life imprisonment; for second degree murder, not less than fifteen

years and not more than sixty years incarceration; and for voluntary

manslaughter, not less than three years and not more than fifteen years

incarceration. In State v. Cook, 816 S.W.2d 322 (Tenn. 1991), our Supreme

Court observed that the jury’s knowledge of how lengthy a sentence generally

inures to the benefit of the defendant. Here, the jury was most likely left with the

impression that the defendant would never be eligible for parole if convicted of

first degree murder. It seems to this Court that the jury would have considered

the sentence for first degree murder, life imprisonment, as a much harsher

sentence than if the judge had informed the jury that the appellant would be

eligible for parole in twenty-five years.



       The appellant next argues that the trial court erred in admitting his

statements into evidence. The appellant made statements at the time of his

arrest and gave a videotaped statement approximately one hour later. The

appellant filed a motion to suppress his statements as involuntary because he

was not informed of his constitutional rights. At the suppression hearing, the trial

court found that the appellant’s statements at the time of his arrest were

spontaneous and not the result of questioning by the police. The court further

found that the appellant was fully advised of his constitutional rights before giving

the videotaped statement and that he made a knowing and intelligent waiver of

his rights.



       A trial judge’s factual findings on a motion to suppress must be affirmed



                                            -8-
on appeal unless the evidence preponderates otherwise. State v. Tuttle, 914

S.W.2d 926, 931 (Tenn. Crim. App. 1995). The credibility of witnesses is for the

judge as trier of fact. Id. The evidence at the suppression hearing consisted

primarily of the testimony of the arresting officer Detective Cliff Smith and the

appellant. Detective Smith testified that he arrested the appellant for murder at

approximately 9 p.m. on Sunday night. Detective Smith testified that he advised

the appellant that he had the right to remain silent, that he had the right to an

attorney, and that if he could not afford an attorney that one would be appointed

to him. Detective Smith failed to inform the appellant that anything that the

appellant said could be used against him at trial. Detective Smith testified that

thereafter the appellant stated that he had “the gun.” Smith asked, “You have

the gun?” The appellant replied, “No, Joey has the gun.” When the appellant’s

roommate started to call Joey, the appellant told her to stop calling because Joey

did not have the gun. The appellant then said that he did not want to talk

anymore. Detective Smith testified that at that point he stopped all questioning.

Several moments later, the appellant told Detective Smith, “I want to talk to you.”

Detective Smith thought that the appellant meant that he wanted to talk to the

detective out of the presence of the other officers so he moved the appellant

down the hallway. Detective Smith told the appellant that he would do what he

could do to help him. The appellant said that he shot the victim because the

victim had said certain things about the appellant. The appellant testified that

Detective Smith read him his rights and then immediately asked where is the

gun. The appellant testified that Detective Smith then said, “We can help you,

let us help you.” The appellant testified that it was only then that he asked the

Detective Smith if he could talk to him. Shortly thereafter the appellant was

taken to the criminal justice center where he was read his rights and where he

signed the standard admonition and waiver form. The appellant stated on the

videotape that he understood his rights and that he wished to waive them. At

approximately 9:48 p.m. the appellant gave a videotaped statement.




                                         -9-
       In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme

Court formulated warnings that must be given to a suspect before the

commencement of custodial interrogation. Miranda requires law enforcement

officers to warn suspects that they have the right to remain silent; that anything

said can and will be used against them in court; that they have the right to

consult with a lawyer and to have the lawyer with them during interrogation; and

that if they cannot afford one, then one will be appointed. The need for Miranda

warnings, however, is limited to custodial interrogations. Any statement given

voluntarily without any compelling influences is admissible in evidence whether

or not Miranda warnings are given first. State v. Brown, 664 S.W.2d 318, 320

(Tenn. Crim. App. 1984). The fundamental import of the privilege while an

individual is in custody is not whether he or she is allowed to talk to the police

without the benefit of warnings and counsel, but whether he or she can be

interrogated. Miranda, 384 U.S. at 478. Volunteered statements of any kind are

not barred by the Fifth Amendment. Id.; see also State v. Goodman, No.

01C01-9512-CC-00423 (Tenn. Crim. App. at Nashville, filed March 13, 1997);

State v. Chambless, 682 S.W.2d 227 (Tenn. Crim. App. 1984);



       We find no merit to this issue. The trial court’s duty was to assess the

credibility of the appellant and Detective Smith at the suppression hearing. The

judge accredited the testimony of Smith. The appellant’s statements were not

elicited through custodial interrogation but rather were voluntary. Thus, Detective

Smith’s failure to advise the appellant at the time of the arrest that anything said

could be used against him in court was not fatal to the admission of the

statements because the statements were voluntary. Furthermore, the appellant

was fully advised of his constitutional rights before giving his videotaped

statement. The appellant stated on the video that he was informed of and

understood his constitutional rights. The appellant signed a waiver of rights form

voluntarily waiving his rights before he was interrogated by Detective Smith.




                                         -10-
       Finally, the appellant argues that the trial court erred in permitting the

state to question witness Michael Bowers about his plea agreement. Bowers

agreed to testify truthfully in exchange for the state’s recommendation that the

court accept his plea of guilty to facilitation of first degree murder. The appellant

argued in the trial court that this testimony was prejudicial because it suggested

a predetermination of first degree murder. The appellant argued that the

testimony violated the jury’s duty to determine the degree of murder committed.

The trial court shared the appellant’s concern but held that the terms of the

agreement were admissible because the plea agreement was not an

adjudication but rather a suggestion to the court. At trial, the state elicited

testimony that Bowers had been charged with first degree murder and that, in

exchange for his truthful testimony, the state would allow him to plead guilty to

facilitation of first degree murder. The court quickly corrected the state, saying

that the plea agreement was a recommendation to the court. The state further

clarified this for the jury saying that the state had agreed to the plea agreement,

subject to the court’s approval. Bowers’ agreement with the state was relevant to

the issue of Bowers’ credibility. The risk of unfair prejudice to the appellant did

not substantially outweigh the probative value of Bowers’ testimony. This issue is

without merit.




                                   CONCLUSION


       After careful consideration of the issues presented by the appellant, we

affirm his conviction of first degree murder.




                                                _____________________________
                                                PAUL G. SUMMERS, Judge



CONCUR:



                                         -11-
______________________________
JOSEPH B. JONES, Presiding Judge




______________________________
WILLIAM M. BARKER, Judge




                                   -12-
