         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 2, 2006

                      STATE OF TENNESSEE v. JOHN GREEN

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 03-01893    Arthur T. Bennett, Judge



                   No. W2005-01809-CCA-R3-CD - Filed October 31, 2006


John Green, the defendant, appeals his jury convictions of first degree felony murder and aggravated
robbery (Class A felony). The defendant was sentenced to life in prison for first degree felony
murder with a ten-year concurrent sentence for aggravated robbery. The defendant presents two
issues: insufficient evidence to support the convictions, and error by the trial court in failing to
suppress the defendant’s statements. We conclude from our review that the evidence was sufficient
and that the defendant’s statements were properly admitted. The judgments of conviction are
affirmed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
J.C. MCLIN , JJ., joined.

Robert Wilson Jones, District Public Defender, and Garland Ergüden and Dianne Thackery,
Assistant Public Defenders, for the appellant, John Green.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Reginald Henderson and Paul Hagerman;
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

        This case from Shelby County concerns an aggravated robbery and murder of a pizza
deliveryman, John Stambaugh, III, by the defendant and his co-defendants, Louie Holloway and
Eronia Neal, on September 8, 2002. That night, Ms. Rebecca DeVries had ordered pizza delivered
to her apartment building at 2188 Young. The deliveryman arrived at approximately 10:45 p.m., and
Ms. DeVries met him in the parking lot. She observed another car pull behind the delivery vehicle.
Later that evening Ms. DeVries was told that the delivery vehicle was still in the parking lot with its
motor running. She returned to the vehicle and found the driver inside and the doors locked. The
driver was immobile with his head tilted back. The police were notified and responded within five
minutes. Paramedics from the Memphis Fire Department found that the victim was without any
signs of life. Eronia Neal was fourteen at the time of this murder. In his testimony he admitted
assisting the defendant and co-defendants in these offenses. The co-defendant, Holloway, was dating
Neal’s older sister. Neal obtained a stolen car that was kept in his neighborhood. The defendant
drove the stolen car with Louis Holloway, Neal, and Charles Nelson, a juvenile, as passengers. Neal
stated they were driving around “looking for somebody to rob, or whatever.” The defendant pulled
behind the victim’s car. Holloway, armed with a shotgun, went to the driver’s side. The defendant,
armed with a rifle, and Nelson went to the passenger side. Holloway demanded money from the
victim. Nelson reached in and took the money. Neal stated that he heard a noise like a shotgun
blast. The defendant, Holloway, and Nelson returned to the stolen vehicle. The defendant and
Holloway removed latex gloves from their hands. The defendant confronted Holloway over why he
had shot the victim. Holloway claimed that the defendant had mentioned his name. Neal stated that
the two guns belonged to Holloway. He further admitted that his role in the robbery was to act as
a lookout.

       On October 25, 2002, the defendant gave a transcribed statement to Sergeant T. Sims1 and
Detective Fred Williams. The defendant, in this statement, said that he and Holloway were on foot
alone when they robbed the victim. The defendant stated that Holloway shot the victim once using
a sawed off shotgun and that they ran from the scene.

        On October 28, 2002, the defendant gave a second transcribed statement to Sergeant T. Sims
and Sergeant James Fitzpatrick. In this statement the defendant admitted driving a stolen four-door
Buick to the scene of the offenses where he blocked the delivery vehicle. He stated that Holloway,
Nelson, and “King” were with him. Holloway shot the victim with a sawed off shotgun. The
defendant stated that Holloway claimed to have shot the victim because the defendant had used
Holloway’s first name during the robbery. The defendant stated he took the shotgun to “King’s”
residence on Nathan on Holloway’s demand. According to the defendant, Holloway dated “King’s”
sister who was pregnant by Holloway.

       Officer Steven Cody Wilkerson testified that a consent search was executed at 3202 Nathan
on October 16, 2002. A loaded, sawed off shotgun with a shortened stock was found in an oven.
The defendant had delivered the shotgun that day. Holloway was present when the residence was
searched. A subsequent search of Holloway’s residence at 3231 Princeton was conducted by
Detective Michael Jauer and other officers. A pistol and a 30.06 Remington rifle were found there.

        Special Agent Shelly Betts, a forensic scientist with the Tennessee Bureau of Investigation,
had examined the shotgun. Agent Betts identified it as a Harrington & Richardson .12 gauge with
the barrel sawed off and the stock shortened. The shotgun was found to be in normal operating
condition with the safety features functional.


        1
             Sergeant Sims died accidentally after the defendant’s suppression motion hearing and before the trial of the
defendant.

                                                           -2-
        Dr. O. C. Smith, an expert in forensic pathology, testified as to the victim’s autopsy results.
Dr. Smith determined that the victim died of a shotgun blast to the chest which he estimated was
fired from a distance of three to six feet. Dr. Smith stated the shotgun seized from Holloway could
have produced the fatal wound but other weapons could have produced a similar pattern.

       The defendant, after voir dire, chose not to testify and presented no other evidence in his
defense. Based on the evidence, the jury convicted the defendant of felony murder, criminally
negligent homicide, and two counts of aggravated robbery. At the sentencing hearing, the criminally
negligent homicide conviction was merged with the felony murder, and the two aggravated robbery
convictions were merged.

        On appeal, the defendant presents two issues: that the evidence was insufficient to support
the convictions, and that the trial judge erred in failing to suppress the defendant’s statements to
police.

                                    Sufficiency of the Evidence

         When considering a sufficiency question on appeal, our standard of review is “whether
considering the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002). On appeal, the State is entitled to the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom. State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000). A guilty verdict by the trier of fact resolves all conflicts
in the evidence in favor of the prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). “Questions about the credibility of 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, and this Court does not
re-weigh or re-evaluate the evidence.” State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003) (citing
Bland, 958 S.W.2d at 659).

       First degree felony murder is “[a] killing of another committed in the perpetration of or
attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy[.]” T.C.A. § 39-13-
202(a)(2) (2006).

         Robbery is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear. T.C.A. § 39-13-401(a). It becomes aggravated robbery when
it is “[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the
victim to reasonably believe it to be a deadly weapon; or (2) where the victim suffers serious bodily
injury.” T.C.A. § 39-13-402(a)(1), (2).

        Our review of the sufficiency reveals ample evidence supporting the defendant’s convictions.
Both the defendant’s statement and Eronia Neal’s testimony showed that the defendant was a willing
participant in the aggravated robbery of the victim. The primary differences between the two


                                                 -3-
versions was the defendant’s attempts to minimize the extent of his involvement. Even the
defendant agreed that he was driving the stolen vehicle and used it to block the victim’s car from an
escape. Rebecca DeVries’ testimony of a car pulling behind the victim’s vehicle corroborated Neal’s
and the defendant’s accounts. According to Neal, the defendant participated in the aggravated
robbery by going to the victim’s passenger side window armed with a rifle. The victim’s death from
the shotgun blast fired by the co-defendant Holloway provided sufficient evidence to prove the
defendant guilty of first degree felony murder beyond a reasonable doubt.

                                       Defendant’s Statements

       In the remaining issue, the defendant asserts error by the trial court in its refusal to suppress
the two statements given by the defendant. The defendant contends that the statements were
involuntarily given and that his due process rights under the Fifth and Fourteenth Amendments of
the United States Constitution and Article I, section 9 of the Tennessee Constitution were violated.

        The trial court’s determination at the suppression hearing that a confession was voluntary is
presumptively correct on appeal. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). This
determination is binding unless the evidence in the record preponderates against that finding. State
v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999). When determining whether an accused has
voluntarily, knowingly, and intelligently waived his Miranda rights, this court must consider the
totality of the circumstances which existed when the accused waived these rights. State v.
Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992); State v. Benton, 759 S.W.2d 427, 431 (Tenn.
Crim. App. 1988). The totality of the circumstances must reveal an uncoerced choice and the
required level of comprehension. State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (quoting
Stephenson, 878 S.W.2d at 545). Where a defendant contends that his waiver of Miranda rights was
not voluntarily or understandingly made, the court must consider such factors as the defendant’s age,
level of functioning, prior criminal justice experience, demeanor, responsiveness to questioning,
possible malingering, and the manner in which the Miranda rights were explained. Blackstock, 19
S.W.3d at 208. However, no single factor is necessarily determinative. Id.

        The defendant was nineteen when he testified at his suppression hearing. He stated that he
did not recall being read his Miranda advisory warnings prior to his questioning. He claimed that
he requested of Sergeant Sims that he be allowed to call a specific attorney. According to the
defendant, Sergeant Sims told him he could not contact an attorney until he told Sergeant Sims what
he wanted to know. The defendant stated that although he completed twelve years of school, he was
in resource classes from the second grade through the tenth grade in the areas of English and reading
comprehension. The defendant said that he was pressured into giving the first statement and, in the
second statement, acted as a “yes man” to the interrogator’s questions. The defendant acknowledged
that he had previous experience with police questioning associated with interrogations.

         Sergeant Sims testified at the defendant’s suppression hearing. He stated that, prior to the
first interview on October 25, he read the Miranda rights to the defendant and then had the defendant
read them to him. The defendant’s signature appears on the waiver of rights form. Detective Fred


                                                  -4-
Williams was with Sergeant Sims during the first interview session. According to Sergeant Sims,
the defendant did not appear confused and nothing was observed indicating any physical or mental
defects concerning the defendant.

        Sergeant Sims stated that, prior to the second interview, the defendant initialed that he
understood his Miranda rights and wished to make a statement. Sergeant Fitzpatrick was present
during a portion of the second interview. Sergeant Sims denied that the defendant ever requested
the right to call or speak to an attorney. In both interviews, the defendant was shackled to his chair.
The first transcribed statement started at 2:45 p.m. and ended at 3:40 p.m. The time of the second
statement was from 8:30 p.m. until 10:10 p.m. The defendant was “preinterviewed” prior to both
transcriptions, but Sergeant Sims did not recall the length of these sessions. Sergeant Sims stated
that food and drink were offered the defendant on each hour.

       The trial court, in his ruling, accredited the testimony of Sergeant Sims that the defendant did
not request a lawyer. The trial court found that the defendant was advised of his rights and
understood the process. The trial court acknowledged that the officers may have applied pressure
in questioning but that it was not undue pressure that overwhelmed the defendant’s will.

        Reviewing the issue under a totality of the circumstances, we conclude that the defendant
knowingly and voluntarily made the two statements which were the object of the defendant’s motion
to suppress. At the time of the interviews, the defendant was within days of being twenty years old.
The defendant had completed twelve grades of school. Although he had been in special education
for much of this time, he finished his last two years in the standard curriculum. The defendant
admitted that he had prior experience with police interrogation and had previously been administered
his Miranda rights. The circumstances surrounding the defendant’s questioning, including his being
shackled to a chair, were not unduly coercive. We conclude that the defendant voluntarily waived
his right against self-incrimination. The statements were freely given and absent any undue coercion.
In summary, the evidence does not preponderate against the trial court’s refusal to suppress the
defendant’s statements.

                                             Conclusion

         We conclude from our review that the evidence clearly supported the defendant’s convictions
for first degree felony murder and the underlying felony of aggravated robbery. Furthermore, we
have determined that the defendant’s statements to police were voluntarily given and properly
admitted into evidence. The judgments of conviction are affirmed.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE


                                                 -5-
