         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   March 20, 2001 Session

                  STATE OF TENNESSEE v. JEFFREY T. SILER

                  Direct Appeal from the Criminal Court for Knox County
                         No. 66487B    Mary Beth Leibowitz, Judge



                                 No. E2000-01570-CCA-R3-CD
                                        April 17, 2001

Defendant was convicted by a Knox County jury of the offense of felony murder and received a life
sentence. He raises the following two issues on appeal: (1) whether the trial court erred in denying
his motion to suppress his confession; and (2) whether the trial court erred in disallowing certain
expert testimony. We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN,
JJ., joined.

John W. Routh, Knoxville, Tennessee, for the appellant, Jeffrey T. Siler.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Sally Jo Helm, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

         Defendant was tried by a Knox County jury, found guilty of first degree murder in
perpetration of an attempted especially aggravated robbery, and sentenced to life imprisonment. On
appeal, he attacks the admissibility of his confession to law enforcement authorities and the failure
of the trial court to allow the testimony of a psychologist. Upon review of the record, we affirm the
judgment of the trial court.


                                         BACKGROUND

       Although the defendant does not challenge the sufficiency of the evidence, we recite the
following facts pursuant to the state's proof at trial. The defense offered no proof at trial.
         On February 19, 1998, the fifteen-year-old defendant and fifteen-year-old Lavon Davis were
riding with Jason Copley. Davis stated that he was "looking for a lick," meaning someone to rob.
Upon seeing fifty-six-year-old Tommy Haworth, the victim, walking down the street, they decided
to rob him. The defendant agreed to take Davis' pistol, and Davis and the defendant exited the
vehicle and followed the victim to his residence. There, the defendant confronted the victim and
asked him for money. The victim replied that he had none. The defendant then cocked the pistol,
and it fired. The victim was hit in the face with the bullet and died as a result of this gunshot wound.

       The defendant and Davis fled the scene, and the defendant threw the empty shell casing into
a storm drain. Copley, who had remained in the vehicle, stayed at the scene and told someone to call
911.

        The defendant and Davis were subsequently arrested, and the defendant confessed his
involvement in the offense. In his statement the defendant contended the gun went off accidentally
during the attempted robbery, and he did not intend to shoot the victim.1 An analysis of the shell
casing found in the storm drain and the projectile recovered in the victim's toboggan revealed they
were fired from the pistol recovered from Davis’ coat pocket. The defendant's fingerprints were also
found on the door of the victim's residence.

         The defendant was transferred from juvenile court to the Criminal Court for Knox County
and indicted in Count 1 for first degree murder during the perpetration of an attempted especially
aggravated robbery and in Count 2 for attempted especially aggravated robbery. On the morning of
trial, the defendant entered a guilty plea to attempted especially aggravated robbery, and the case was
tried before a jury on the felony murder charge. The jury found the defendant guilty of felony
murder. The defendant was sentenced to concurrent sentences of life for felony murder and eight
years for attempted especially aggravated robbery.


                                    SUPPRESSION OF CONFESSION

        Defendant contends that his aunt, who had legal custody of him, should have been present
during the police interrogation. He contends that the presence of his mother, who did not have legal
custody of him, was insufficient. He further contends that he lacked the capacity to give a voluntary
statement.

       We are precluded from considering this issue. The record does not contain a transcript of the
suppression hearing. It is the duty of the accused to provide a record which conveys a fair, accurate
and complete account of what transpired with regard to the issues presented for appellate review.
Tenn. R. App. P. 24(b); see State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). The appellant's



         1
          W e parenthetically note that an accidental shooting is no defense to first degree murder in perpetration of an
attempted robbery. See State v. Middlebrooks, 840 S.W .2d 317 , 336 (T enn. 199 2).

                                                          -2-
failure to include a transcript of the suppression hearing waives the issue. See State v. Banes, 874
S.W.2d 73, 82 (Tenn. Crim. App. 1993).


                                      EXPERT TESTIMONY

        Defendant next contends the trial court erred in disallowing the testimony of a psychologist.
At the conclusion of the state's proof, defense counsel announced his intention to call Dr. Michael
Buckner, a psychologist who performed an evaluation on the defendant. Defense counsel contended
Dr. Buckner's testimony would address the defendant's "intent" with regard to felony murder and the
mental state of "knowing" with regard to the lesser offense of second degree murder.

        The trial court concluded that the defendant's voluntary plea of guilty to the underlying felony
of attempted especially aggravated robbery conclusively established the “intent” requirement for
felony murder, noting that felony murder does not require a mental state other than the intent to
commit the underlying felony. The trial court agreed that Dr. Buckner could testify with regard to
the "knowing" element of second degree murder. The trial court suggested that the defendant might
want to have a jury-out hearing with regard to Dr. Buckner's proposed testimony. Defense counsel
also stated that he might want a jury-out hearing after he again conferred with Dr. Buckner. After
conferring with Dr. Buckner, defense counsel announced that he had decided not to call Dr. Buckner
as a witness. No offer of proof was presented as to Dr. Buckner's proposed testimony.

        An appellate court may not find error in the exclusion of evidence unless an offer of proof
is contained in the record, or the excluded evidence is otherwise apparent from the record. Tenn.
R. Evid. 103(a)(2); Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994). Here, we are
unable to speculate as to the proposed testimony of Dr. Buckner. Thus, the issue is waived.

        Furthermore, we reject defendant's argument that such testimony would be relevant to the
"reckless" mens rea required for felony murder. Felony murder no longer requires a culpable mental
state, except the intent to commit the underlying felony. See Tenn. Code Ann. § 39-13-202(b)
(1997). In addition, the trial court did not preclude expert testimony with regard to the “knowing”
element of second degree murder. Instead, the defendant chose not to call Dr. Buckner.

       This issue is without merit.


                                          CONCLUSION


       Based upon our examination of the record, we affirm the judgment of the trial court.




                                                  -3-
      ____________________________________
      JOE G. RILEY, JUDGE




-4-
