         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 11, 2005

           STATE OF TENNESSEE v. JERRY WAYNE PATTERSON

                   Direct Appeal from the Circuit Court for Henry County
                            No. 13581    Julian P. Guinn, Judge



                     No. W2004-00397-CCA-R3-CD - Filed July 6, 2005


The defendant, Jerry Wayne Patterson, was convicted by jury of attempted first degree murder, a
Class A felony, and sentenced to forty years in the Tennessee Department of Correction as a Range
II, multiple offender. On appeal, the defendant presents three issues for review: (1) whether the trial
court erred by denying the defendant’s motion to suppress his confession; (2) whether the trial court
erred by denying the defendant’s motion for judgment of acquittal; (3) whether the evidence was
sufficient to support a guilty verdict for attempt to commit first degree murder. Upon review of the
record and applicable law, we affirm the judgment of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., concurred
in the result and DAVID G. HAYES, J., filed a separate concurring opinion.

W. Jeffery Fagan, Assistant District Public Defender, for the appellant, Jerry Wayne Patterson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               I. Facts

       The proof at trial reflects that one evening Johnny Ray Singleton was shot while in his
bedroom. The defendant was subsequently indicted for attempted second degree murder. A plea
bargain offered by the State resulted in the nolle prosequi of the original indictment. However, plea
negotiations broke down and the defendant was re-indicted for attempted first degree murder.

       At trial, Investigator Damon Lowe of the Henry County Sheriff’s Department testified that
he was assigned to investigate the shooting of Singleton. During the course of his investigation, he
interviewed the defendant twice. At the first interview, Investigator Lowe asked the defendant if he
was involved in the shooting and if he would submit to a test for gun residue. In response, the
defendant told Investigator Lowe that he was not involved and submitted to the gun residue test. At
the second interview, the defendant continued to deny involvement. According to Investigator Lowe,
the defendant stated that he had been over at his girlfriend’s sister’s house with his girlfriend, Tina
Bouie, but left after arguing with her. After leaving, the defendant stopped at Russell Barrett’s house
where both men sat around and drank. The defendant told Investigator Lowe that he and Barrett left
the house around 2:00 a.m. to purchase drink mix. Soon after, they were stopped by police and
arrested for DUI.

        However, Investigator Lowe testified that the defendant later confessed to shooting Singleton.
Investigator Lowe explained, that after leaving court one day, the defendant confessed to him in the
presence of the defendant’s attorney and the defendant’s mother. According to Investigator Lowe,
the defendant stated that after leaving his girlfriend, he picked up Barrett, stopped at Pocket’s gas
station to get something to drink, and drove out to Singleton’s residence. Once there, the defendant
walked around the back of Singleton’s residence, walked up the back steps to the porch, looked into
Singleton’s bedroom window, saw Singleton’s silhouette through the curtain, and fired one shot.
After firing the shot, the defendant ran up a dirt hill behind the residence, got back into the car, and
drove to his girlfriend’s house. The defendant didn’t stay long and drove to Scott Mart where he
called his mom from a pay phone to see if he could come out to her house. Investigator Lowe stated
that the defendant’s confession was interrupted at this point.

       Investigator Lowe testified that he obtained the video surveillance tapes from Pocket’s.
According to the videotapes, the defendant was at Pocket’s at 12:06 a.m. not 2:00 a.m. Investigator
Lowe also testified that he obtained the phone records from the pay phone at Scott Mart and
discovered that a phone call had been made from the pay phone to the defendant’s mother at 2:08
a.m. Investigator Lowe stated that from his investigation, he believed only one round had been fired
from the gun. However, Investigator Lowe admitted that other than the bullet, no casing or weapon
was ever found. Investigator Lowe described the weather conditions that night as rainy and
described the ground around Singleton’s residence as wet and muddy. Consequently, Investigator
Lowe stated that he was unable to obtain any physical evidence from the crime scene.

        On cross-examination, Investigator Lowe admitted that other possible suspects were
identified during his investigation. First, Investigator Lowe stated that when Singleton was shot, he
was in the bedroom having sex with Tammy Hollingsworth. Tammy Hollingsworth was the ex-wife
of Tommy Hollingsworth. Investigator Lowe stated that he was aware of the fact that Tommy and
Tammy had been in court over domestic assault charges since being divorced. Second, Investigator
Lowe acknowledged that Singleton had threatened to kill Dion Chenilworth and police officer David
Pike. According to Investigator Lowe, all three of these men had either dated or were associated
with Singleton’s ex-wife, Tina Bouie – the same Tina Bouie who was also the defendant’s girlfriend.
Investigator Lowe also noted that an unidentified male had been reported to have stopped by
Singleton’s residence earlier in the evening.



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        During cross-examination, Investigator Lowe stated that he was able to determine that the
weapon used in the shooting of Singleton belonged to Russell Barrett. Investigator Lowe also stated
that Barrett, a friend of Singleton, knew the layout of Singleton’s residence. Investigator Lowe also
admitted that when the defendant and Barrett were arrested for DUI he only asked the defendant to
submit to a gun residue test. Investigator Lowe reiterated the fact that the defendant, in his
statements, twice denied shooting Singleton. It was only after the preliminary hearing did the
defendant confess to shooting Singleton.

        According to Investigator Lowe’s cross-examination, Barrett’s first statement confirmed the
defendant’s story that he and the defendant had hung out at Barrett’s place, drinking and playing
video games; went to Pockets for some drink mix; and were eventually stopped by police. At the
time of the statement, Barrett denied any involvement in the shooting of Singleton, and stated that
he and the defendant had not gone over to Singleton’s house. Also, when asked about owning a gun,
Barrett stated that he had recently sold his gun back to the original owner the day before Singleton
was shot. In a second statement, Barrett told Investigator Lowe that the defendant asked to borrow
his gun but the gun was not loaded. Barrett again denied going with the defendant to Singleton’s
house. Barrett gave a third statement which was taped. In Barrett’s third statement, he admitted that
he was at Singleton’s residence in the backyard and saw the defendant shoot the gun. However,
Barrett’s subsequent written statement was found to be incomplete and inconsistent with his taped
statement, therefore, he was told to go home and correct it.

        On re-direct examination, Investigator Lowe noted that the videotape of the defendant’s arrest
for DUI compared with the videotape from Pocket’s, showed the defendant wearing a different set
of clothes. According to Investigator Lowe, the videotapes corroborated Barrett’s statement that the
defendant changed clothes after shooting Singleton. Investigator Lowe also indicated that all other
suspects were investigated and could not be linked to the crime. Investigator Lowe further stated
that he could not find any motive for Barrett shooting Singleton. On re-cross examination,
Investigator Lowe admitted that the defendant’s change of clothes could also be explained by the fact
that the car got stuck in the mud and the defendant got muddy as a result.

         Dana Barrett, ex-wife of Russell Barrett, testified that the defendant had been dating her
sister, Tina Bouie. Dana stated that on the evening of February 21, 2003, Bouie, her son Dylan, and
the defendant came over to her house to watch movies. According to Dana, Singleton called his son
Dylan. After talking to Dylan, Singleton spoke with Bouie for about fifteen minutes. While Bouie
was on the phone, the defendant told Dylan that “he was going to kill his daddy.” After Bouie got
off the phone, she and the defendant began arguing about the fact that she was talking to her ex-
husband, Singleton. After the argument, the defendant left in Bouie’s black Thunderbird.
Nonetheless, Dana stated that Bouie was not concerned because the defendant would typically go
somewhere to cool off and would come back.

       Dana testified that to her knowledge, Barrett did not have any motive to shoot Singleton.
According to Dana, Barrett and Singleton were good friends. Dana further testified that she had not
dated or had any romantic relationship with Singleton. On cross-examination, Dana admitted that


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other than the night in question, she had never heard the defendant threaten anyone. Dana also
admitted that her statement to Investigator Lowe indicated that she heard the defendant leave in
Bouie’s Thunderbird; whereas, her direct testimony indicated that she did not hear the defendant
leave.

         Johnny Ray Singleton testified that on the night of February 21, 2003, he had talked with his
ex-wife, Tina Bouie, on the phone for about thirty to forty-five minutes and the conversation was not
argumentative. Later that evening, he was shot while in his bedroom with a lady friend. The bullet
hit his upper chest causing him to fall backwards. After being shot, Singleton stuck his finger in his
wound and called 911. Singleton stated that he was first treated at the county hospital and later
treated at the Jackson hospital. Singleton testified that he and Barrett were friends and could not
think of any reason why Barrett would want to shoot him. On cross-examination, Singleton stated
that he did not see who shot him. Singleton also stated that he knew the defendant and did not have
a cordial relationship with him. According to Singleton, the defendant had never threatened him
before, but they had confronted each other in the past.

        Russell Barrett testified that he was good friends with both the defendant and Singleton.
Barrett recounted that the defendant came to his house Friday evening saying, “I’m going to kill him.
I’m going to kill him.” Barrett told the defendant to calm down and have a drink. When the
defendant decided to leave, Barrett left with the defendant. The two men drove to Pocket’s. After
buying two drinks and getting gas for Bouie’s car, the two men headed out to Puryear where
Singleton resided. According to Barrett, he began to black out after having too much alcohol, but
remembered that the defendant drove into a driveway to the right of Singleton’s house and parked
the car. The defendant then asked Barrett to lead him around to the back of Singleton’s house.
Barrett testified that as he was climbing over a fence, he saw that the defendant had his gun. When
asked what he was going to do, the defendant responded, saying that he was not really sure but was
going to put the fear of God in Singleton. Barrett stated that he thought his gun was unloaded and
the defendant was just going flash it in front of Singleton and start a fight.

        Barrett testified that while on Singleton’s deck, the defendant asked him which window was
Singleton’s window. After pointing to the window, Barrett walked over to an area close to the
woods in the back of Singleton’s yard to sit down because he was “pretty messed up.” At that
moment, Barrett saw a “flash and heard a bang.” According to Barrett, the next thing he knew, he
was running in the woods towards Bouie’s car. Once in the car, the defendant informed him that he
“got him.” After stopping by Dana’s house first, the defendant then drove to Barrett’s house where
both men changed clothes. After changing clothes, Barrett and the defendant decided to go to the
defendant’s mother’s house. As they were leaving, Bouie’s Thunderbird got stuck in the driveway.
 While en route, the defendant stopped at Scott Mart where he phoned his mother, telling her “I did
it.” As both men drove to the defendant’s mother’s house, they were pulled over by the police. The
police questioned Barrett about the mud on his clothing so Barrett took the police to his house and
showed them where the car had gotten stuck in his driveway.




                                                 -4-
       Barrett testified that he came to own a gun after taking it as partial payment for a car he had
sold. According to Barrett, the gun was unloaded and sitting on his counter top inside his house
when the defendant came over.

       On cross-examination, Barrett stated that he had been charged with attempt to commit first-
degree murder and was out on bond. He also admitted that the gun used in the shooting of Singleton
was his gun, and that he knew the layout of Singleton’s residence. Barrett further admitted that his
statements to Investigator Lowe had been inconsistent.

        Laura Jane Hodge, forensic scientist with the Tennessee Bureau of Investigation testified that
after the defendant’s hands were tested for gunshot residue, the results were inconclusive.
Nonetheless, Hodge stated that she found some trace elements of gun residue on the defendant’s
hands; therefore, she could not eliminate the possibility that the defendant fired a gun.

        David Andrew Boyle, a patrol officer with the Henry County Sheriff’s Department, testified
that shortly after midnight on February 22, 2003, he was on patrol in the Puryear area when he
answered a dispatch concerning a gunshot fired. As he pulled onto the state highway, he observed
a black Thunderbird with tinted windows run a stop sign. Because of the emergency nature of the
dispatch, he proceeded towards the residence of the reported shooting. However, he told his partner,
Officer Wilson, to remember the black Thunderbird because it was the only vehicle they had passed
while heading to the crime scene. Boyle further testified that after learning that this vehicle had been
stopped by another police officer, he drove over to that area and identified the black Thunderbird as
the one he had previously seen. Boyle stated that the defendant and Barrett were the occupants of
the Thunderbird.

        At the close of the State’s proof, the defendant moved for judgment of acquittal. After the
trial court denied the defendant’s motion for judgment of acquittal, the defendant presented three
witnesses.

         As a defense witness, Officer Stanley Ray Pinson of the Henry County Sheriff’s Department,
testified that he pulled the defendant over for driving while intoxicated in the early morning hours
of February 22, 2003. Officer Pinson stated that he observed mud on Barrett’s pants and shoes, but
none on the defendant.

        Tina Bouie testified that she never heard the defendant threaten Singleton. Bouie testified
that her sister, Dana, at one time, asked for permission to date Singleton. According to Bouie, she
and the defendant had argued after speaking with Singleton on the phone on February 21, 2003.
After learning that Singleton had been shot, Bouie went over to the hospital to visit. Later, Bouie
informed the police of the events that transpired between her and the defendant.

        Tammy Rene Hollingsworth testified that she was with Singleton when he was shot. Tammy
Hollingsworth recounted that before Singleton was shot, she heard a loud truck pass by and thought
it was her ex-husband, Tommy Hollingsworth. Tammy Hollingsworth further explained that her ex-


                                                  -5-
husband had threatened to kill her on February 21, 2003. On cross-examination, Tammy
Hollingsworth denied telling the police that the defendant shot Singleton. Officer Pinson was then
recalled by the State and testified that Tammy Hollingsworth told him that the defendant had shot
Singleton and was driving Bouie’s car.

        The defendant did not testify at trial. The jury found the defendant guilty of attempted first
degree murder. After a sentencing hearing, the trial court ordered the defendant to serve an effective
forty-year sentence in the Department of Correction.

                                                  II. Analysis

                                           A. Motion to Suppress

        The first issue raised by the defendant is whether the trial court erred by denying the motion
to suppress his confession. Specifically, the defendant asserts that his confession was given to
Investigator Lowe in exchange for a bond reduction and with the understanding that his confession
would only be used against him if Russell Barrett was unable to testify.

        According to the arguments of counsel at the suppression hearing, the defendant and the
prosecutor entered into plea negotiations in General Sessions Court. The State offered the defendant
twelve years at 30% for attempt to commit second degree murder in exchange for the defendant’s
guilty plea. The defendant accepted the State’s offer and was indicted on attempted second degree
murder. It was also agreed that the defendant would receive a bond reduction in exchange for a
confession. The defendant gave Investigator Lowe a statement which was taped and in return
received a bond reduction.1 After being released on bond, the defendant refused to accept the plea
agreement. Thereafter, the defendant was re-indicted for attempt to commit first degree murder. At
the suppression hearing, the defense counsel claimed that the State told him that the confession
would only be used if something happened to Barrett. As a result, the defendant was misinformed
when the defense counsel related this information to the defendant. The State maintained that it had
accepted the defendant’s confession with the condition that it would use the confession if something
happened to Barrett or if the defendant backed out of the plea agreement. Following the suppression
hearing, the trial court found that the defendant’s confession was freely and voluntarily given
primarily to obtain the bond reduction.

       When reviewing the trial court’s decision on a motion to suppress, this Court conducts a de
novo review of the trial court’s conclusions of law and application of law to facts. See State v.
Walton, 41 S.W.3d 75, 81 (Tenn. 2001). However, the trial court’s ruling is binding unless the
evidence contained in the record preponderates against it. See State v. Daniel, 12 S.W.3d 420, 423
(Tenn. 2000). Moreover, the prevailing party is entitled to the strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that evidence. State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).


       1
           Due to faulty equipment the taped statement was not recorded.

                                                       -6-
        In determining whether a confession was voluntary and knowing, the totality of the
circumstances must be examined. See State v. Bush, 942 S.W.2d 489, 500 (Tenn.1997). “A
defendant’s subjective perception alone is not sufficient to justify a conclusion of involuntariness
in the constitutional sense. Rather, coercive police activity is a necessary predicate to finding that
a confession is not voluntary.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.1996) (citations and
internal quotations omitted). A confession resulting from a state official’s promises are not
automatically considered involuntary. Id. The crucial question is whether the behavior of the state
officials was such as to overbear the accused’s will to resist and trigger an involuntary confession.
 Id.

        Our examination of the circumstances surrounding the defendant’s confession establish that
the defendant was approximately thirty-three years old and had prior experience with the judicial
system. At the time the defendant gave his confession, both his attorney and mother were present.
As part of a proposed plea agreement, the defendant was offered a bond reduction. In return, the
State asked the defendant for a confession in order to preserve its evidence in the event that the
defendant, once released on bond, decided to render their primary witness unavailable. The
defendant received the bond reduction and was released on bond. Once released, the defendant
decided to reject the plea agreement thereby compelling the State to re-indict and take the matter to
trial. Applying the above standard, there is no preponderance of evidence that, at the time of the
confession, the defendant’s will was overborne by coercive police behavior. Therefore, we conclude
that the trial court properly denied the defendant’s motion to suppress.

                               B. Motion for judgment of acquittal

        The defendant claims that the trial court erred by denying the defendant’s motion for a
judgment of acquittal. Because “[t]he standard by which the trial court determines a motion for
judgment of acquittal at the end of all the proof is, in essence, the same standard which applies on
appeal in determining the sufficiency of the evidence after a conviction,” this claim will be included
with the defendant’s challenge to the sufficiency of the convicting evidence for attempt to commit
first degree murder. State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000).

                                  B. Sufficiency of the Evidence

        The defendant challenges the sufficiency of the convicting evidence. Specifically, the
defendant asserts that the evidence was insufficient because: (1) no physical evidence was found
implicating the defendant; (2) some of the State’s witnesses were shown to be inconsistent and not
credible; (3) and the testimony of some witnesses pointed to possible suspects other than the
defendant.

       Our review begins with the well-established rule that once a jury finds a defendant guilty, his
or her presumption of innocence is removed and replaced with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
burden of demonstrating to this Court why the evidence will not support the jury's verdict. State v.


                                                 -7-
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). To meet this burden, the defendant must establish that no reasonable trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Evans, 108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R.App. P. 13(e). In contrast, the
jury's verdict approved by the trial judge accredits the States’ witnesses and resolves all conflicts in
favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be from that
evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions concerning the
credibility of the witnesses, conflicts in trial testimony, the weight and value to be given the
evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
Court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or
re-evaluate the evidence, nor do we substitute our inferences drawn from the circumstantial evidence
for those drawn by the trier of fact. State v. Elkins, 102 S.W.3d 581, 582 (Tenn. 2003); State v.
Reid, 91 S.W.3d 247, 277 (Tenn. 2002); Bland, 958 S.W.2d at 659.

         First degree murder is the premeditated and intentional killing of another person. Tenn. Code
Ann. § 39-13- 202(a)(1). Therefore, to convict the defendant of attempted first degree murder, the
State was required to prove that the defendant, acted with the kind of culpability otherwise required
for first degree murder. Tenn. Code Ann. § 39-12-101(a)(2). That is, the defendant acted “with
intent to cause a result that is an element of the offense, and believe[d] the conduct [would] cause
the result without further conduct on [his] part . . . .”

        The proof establishes that the defendant told Singleton’s son that he was going to “kill his
daddy.” The defendant then obtained a gun and shot Singleton in the chest. Before shooting
Singleton, the defendant told Barrett that he was going to kill Singleton. After shooting Singleton,
the defendant was heard making the statements “I got him” and “I did it.” This evidence clearly
supports the elements necessary to prove criminal attempt to commit first degree murder.

         With respect to the defendant’s arguments regarding the credibility and contradictions of
witness testimony, it is the jury’s prerogative to accredit witness testimony and weigh the evidence.
Here, the testimony of the State’s witnesses not only independently established that the defendant
committed the offense, but also corroborated the defendant’s own confession. In addition, the
inconsistent statements and credibility issues were either brought out on cross-examination or
presented through the testimony of the defense witnesses. The weight and credibility of the
testimony of a witness and the reconciliation of conflicts in testimony, if any, are matters entrusted
exclusively to the jury. By their verdict, the jury exercised their prerogative and chose to accredit
the testimony of the State’s witnesses over the testimony of the defendant’s witnesses. Accordingly,
the defendant’s sufficiency arguments are without merit.

                                           III. Conclusion




                                                  -8-
        We affirm the trial court’s suppression of the defendant’s confession and conclude that the
evidence was sufficient to support the defendant’s convictions. Accordingly, the judgment of the
trial court is affirmed.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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