         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  January 14, 2014 Session

          STATE OF TENNESSEE v. WILLIAM MATTHEW BLACK

                  Appeal from the Criminal Court for Davidson County
                     No. 2011-B-1125 Monte D. Watkins, Judge


                  No. M2013-00612-CCA-R3-CD - Filed April 25, 2014


The Defendant, William Matthew Black, was convicted by a Davidson County Criminal
Court jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210 (2010). The
trial court imposed a Range I sentence of nineteen years’ confinement as a violent offender.
On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the
trial court erred by admitting into evidence his police statement, (3) the trial court erred by
permitting the State to strike potential jurors on the basis of race, and (4) the trial court erred
by failing to include aggravated assault in the jury instructions. We affirm the judgment of
the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

Manuel B. Russ (at trial and on appeal) and Lee Sprouse (at trial), Nashville, Tennessee, for
the appellant, William Matthew Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General; and Hugh T. Ammerman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        This case relates to the shooting death of Carlos Avinger on February 18, 2011. At
the trial, Metro Police Officer Gerald Hyder testified that he responded to a shooting at the
J.C. Napier housing project. He said that when he arrived, he saw about forty people huddled
under a tree, that he asked the people where the victim was, and that people pointed to the
victim’s location. He found the victim lying on the ground and said a large amount of blood
was coming from the left side of the victim’s head. He said that someone had placed a pillow
under the victim’s head and that he could not find a pulse. He rolled the victim over to look
for additional wounds and found a gunshot wound in the victim’s back. One of the
bystanders identified the victim as “Yellow.” He said the bystanders began to leave when
the ambulance arrived.

       On cross-examination, Officer Hyder testified that he arrived about one minute after
the 9-1-1 call was received by dispatch officers. He denied knowing when the shooting
occurred. He said his focus was to provide medical assistance to the victim, not identify
witnesses or obtain statements. He denied searching the victim and agreed someone might
have removed items from the victim’s clothes or moved shell casings at the scene. He did
not see any cars drive through the area after he arrived until the paramedics arrived.

        Metro Police Crime Scene Officer George Ward testified that it took three to four
hours to process the scene. He identified the diagram created by Crime Scene Technician
Rhonda Evans and photographs taken at the scene, which included images of a red Toyota
Camry found near the victim’s location, the pillow placed under the victim’s head with blood
on it, and nearby pools of blood. He said one beer can, one pack of cigarettes, and thirteen
shell casings were found at the scene. He said there were seven Winchester nine-millimeter
Luger cartridge casings, two Hornady nine-millimeter Luger cartridge casings, and four SC
nine-millimeter Luger cartridge casings. He said the Toyota Camry was transported to the
police department for processing, although he did not participate in searching the car.

        Metro Police Crime Scene Technician Rhonda Evans testified that she arrived at the
scene around 10:20 p.m., that she took measurements of the scene for the diagram, and that
she collected evidence. She learned a witness said the shooter might have been inside the
Camry. She identified a photograph of the back seat of the Camry, which showed two
children’s car seat bases and a plastic bag on the floor behind the front passenger seat. She
identified photographs of a letter from the Department of Safety addressed to William
Matthew Black found inside the car and of a Social Security card reflecting the name
William Matthew Black.

       On cross-examination, Ms. Evans testified that she was not a first responder and that
she did not know if anyone altered the locations of the shell casings found at the scene. She
processed the Camry for latent fingerprints and DNA. She did not know if the Camry
underwent further processing. She agreed the grade of the roadway at the scene could have
altered the locations of the shell casings after being fired from the gun.




                                             -2-
       Metro Police Sergeant Daniel Henkel testified that when he arrived at the scene, the
victim was being placed into an ambulance and that other officers were moving people away
from the crime scene. He said his responsibilities included establishing a command center
and notifying the detectives and the crime scene officers. He said that he saw about twelve
shell casings south of where the victim was found and that one of the patrol officers found
a potential witness. He said Officer Charles Large took command when he left the scene
around 11:30 p.m.

        On cross-examination, Sergeant Henkel testified that he had no knowledge that the
shooting was gang related or that witnesses refused to come forward because of threats of
retaliation. He agreed that people were standing around the scene when he arrived and that
officers were attempting to secure it. On redirect examination, he denied seeing anyone
tamper with the shell casings.

       Tennessee Bureau of Investigation Agent Steve Scott, an expert in firearms
identification, testified that he analyzed one bullet and bullet jacket recovered during the
victim’s autopsy and thirteen shell casings found at the scene. He said the bullet and bullet
jacket recovered from the victim were from a nine-millimeter caliber bullet. He said the
thirteen shell casings were fired from the same gun. He could not determine whether the
bullet and bullet jacket were fired from the same gun as the thirteen casings. He said the
casings were manufactured by Winchester, Federal, and Hornady and agreed each could be
fired by the same gun. On cross-examination, Agent Scott said he could not determine in
which order the casings were fired.

       Giles County Sheriff’s Criminal Investigator Shane Hunter testified that on February
26, 2011, he received information regarding the Defendant’s whereabouts. He learned that
the Defendant might have been at Frank Black’s house, although the police had searched it
the previous day. He said Mr. Black, the Defendant’s uncle, notified the police that the
Defendant was at his house. He said that a standoff with the police ensued, that gas was
deployed inside the house, and that the Defendant was apprehended. On cross-examination,
Investigator Hunter testified that he did not find a weapon, a passport, or a large amount of
money.

       Metro Police Detective Andy Injaychock testified that he was assigned to investigate
the shooting. He said the 9-1-1 call was received at 9:25 p.m. and denied the Defendant
made any of the calls. He said that at the scene, he interviewed Pam Kennedy, who directed
them to the red Camry. He said Quintica Culp, the mother of the Defendant’s child, owned
the Camry. He said Ms. Culp was not home when officers went to talk to her. He said that
based on his experience, many people in the area where the shooting occurred were involved
in drug activity. He said his investigation showed the Defendant and the victim were at the

                                             -3-
scene to conduct illegal drug activity. He learned the Defendant had two homes, one with
his grandmother and another with Ms. Culp.

       Detective Injaychock testified that he interviewed the Defendant after he was returned
to Davidson County. The Defendant’s statement was played for the jury. In the statement,
the detective told the Defendant the statement was being video recorded. The detective said
the Defendant stated previously that he wanted to get “the story straight” and cooperate with
the police. The detective said the Defendant was previously read his Miranda rights and
reminded the Defendant he could stop the interview at any time because he was in control.

        The Defendant said he went to the “projects” where the victim approached him, said
he had heard about the Defendant, and accused the Defendant of “running off with [his]
money.” He said the victim cursed him and continued to approach. He said that the victim
went into Pam’s house, and that he left the area, drove to Z Mart convenience store, and
returned to the area. He said that when got out of his car, the victim came out of Pam’s
house. He stated that the victim approached him again and that he walked away to a street
between the buildings. He said the victim was “right beside him” and continued to approach
him. He said he walked to his car, opened the rear door, and retrieved his gun from the
backseat behind the driver’s seat. He said the victim looked through the car window and saw
the Defendant’s gun. He said the victim ran around his car, although the Defendant did not
know why. He did not know if the victim was going to attempt to shoot him. He said he
“just reacted” and admitted he fired “a lot of shots.” He denied intentionally trying to shoot
the victim. He said he thought the victim would leave the scene if he fired the gun.

        The Defendant denied moving his car. He denied seeing the victim with a gun but
said the victim had his hands in his pants pockets. He said that he did not know what the
victim was doing, that he felt it was “going to be me or him,” and that he felt threatened. He
said Pam was the only person he saw at the scene. He said Pam was a “crack head” and lived
in the area. He said several of his family members lived in the area.

        The Defendant said Ms. Culp called him the night of the shooting, stating that her car
was being towed. He admitted telling Ms. Culp to report the car stolen because he wanted
to protect her. The Defendant said he threw the gun into the Cumberland River the day after
the shooting. He said that after the shooting, he went to various family members’ houses,
that his grandmother gave him the detective’s phone number, and that he attempted to contact
him.

        Detective Injaychock testified that “woo” was known as a “fake narcotic.” He
identified Detective Crumby as the second officer in the recording. He denied receiving any



                                             -4-
information before the interview indicating the Defendant had attempted to contact his office.

        On cross-examination, Detective Injaychock testified that the Defendant was
cooperative. He agreed that before the recorded statement began, he spoke and the
Defendant listened for about fifteen to thirty minutes and that the Defendant said the police
“had it wrong.” He denied the Defendant gave inconsistent information in the pre-recorded
conversation. He agreed the Defendant stated that the victim was confrontational,
antagonistic, and told the Defendant he did not want him around the apartments. He agreed
the Defendant said that the victim threatened him and that the shooting was about a “drug
turf” dispute. He agreed the victim sold drugs and did not want the Defendant selling drugs
in that area. He said the Defendant left the area, went to Z Mart, returned to the area, and the
victim “continued this confrontation.” He said the Defendant claimed that he did not
provoke or threaten the victim before going to the car. He agreed the Defendant said that the
victim pursued him when he went to the car and that the victim saw him pick up the gun and
pull back the hammer. He agreed the Defendant feared the victim had a weapon inside his
clothes.

       Detective Injaychock testified that he learned someone known as Teka might have
been a potential witness, although he was unable to determine who Teka was or locate him
or her. He did not recall the Defendant’s stating that he fled because he feared retaliation
from the victim’s family but agreed the Defendant said people were looking for and
threatening him. He agreed the Defendant claimed his shooting the victim was self-defense.

        On redirect examination, Detective Injaychock testified that he was unaware of any
threats made by the victim’s family. He said many people used Pam Kennedy’s porch as a
drug transaction location in exchange for her receiving a small portion of the drugs. He said
a dollar bill found in the victim’s clothes had cocaine on it. He said neither the Defendant
nor the victim was listed as a tenant on any lease agreement.

        Senior Associate Medical Examiner Feng Li testified that he performed the victim’s
autopsy and that the victim’s cause of death was a single gunshot wound to the back, which
injured both lungs and caused a right hemothorax. He concluded that the manner of death
was a homicide, that the victim died within minutes, and that the gun was fired at least three
feet from the victim. He recovered a separated copper jacket and a bullet. He said the
victim’s face showed evidence of blunt force trauma, including redness on the nose, the lip,
and the left cheek, which was consistent with falling face down on the pavement.

        On cross-examination, Dr. Li testified that although the victim’s body was negative
for stippling and gunshot residue, the victim’s clothing had been removed before the autopsy.
He said that clothing could absorb stippling. Regarding the trajectory of the bullet, he agreed

                                              -5-
he could not determine in what position the victim stood when the bullet struck him. He said
the victim’s blood was positive for THC, the active ingredient in marijuana, and agreed it
was possible the victim consumed marijuana just before his death.

       Upon this evidence, the Defendant was convicted of second degree murder. The trial
court sentenced the Defendant to nineteen years’ confinement as a violent offender. This
appeal followed.

                                             I

        The Defendant contends that the evidence is insufficient to support his conviction.
He argues the evidence supported his claim of self-defense. The State responds that the
evidence is sufficient and showed that the Defendant knowingly killed the victim and did not
act in self-defense. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the
evidence but presume that the trier of fact has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Questions about witness credibility are resolved by the jury. See State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be
sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.
1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is
the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        Relevant to this appeal, second degree murder is defined as an unlawful, “knowing
killing of another.” T.C.A. § 39-13-201, -210 (2010). Second degree murder is a result of
conduct offense. State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). “A person acts
knowingly with respect to a result of the person’s conduct when the person is aware that the
conduct is reasonably certain to cause the result.” Id. § 39-11-306(b) (2010). “When acting

                                            -6-
knowingly suffices to establish an element, that element is also established if a person acts
intentionally.” Id. at § 39-11-301(a)(2) (2010). “[A] person acts intentionally with respect
to the nature of the conduct or to a result of conduct when it is the person’s conscious
objective or desire to engage in the conduct or cause the result.” Id. at § 39-11-302(a)
(2010).

       In Tennessee,

       a person who is not engaged in unlawful activity and is in a place where the
       person has a right to be has no duty to retreat before threatening or using force
       intended or likely to cause death or serious bodily injury, if: (A) The person
       has a reasonable belief that there is an imminent danger of death or serious
       bodily injury; (B) The danger creating the belief of imminent death or serious
       bodily injury is real, or honestly believed to be real at the time; and (C) The
       belief of danger is founded upon reasonable grounds.

Id. § 39-11-611(b)(2)(A)-(C) (2010). Whether a defendant acted in self-defense is a question
of fact for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994). When
determining whether a defendant acted in self-defense, a jury must consider “whether the
defendant’s belief in imminent danger was reasonable, whether the force used was
reasonable, and whether the defendant was without fault.” State v. Renner, 912 S.W.2d 701,
704 (Tenn. 1995).

       The jury’s verdict reflects that it rejected the Defendant’s claim of self-defense. In
the light most favorable to the State, although the Defendant claimed the victim was
aggressive, was hostile, was cursing, and approached him with his hands in his pants pockets,
no evidence exists that the victim touched the Defendant or possessed a weapon. The
Defendant admitted walking to Ms. Culp’s car to retrieve his gun and firing it multiple times.
The evidence shows that thirteen shell casings were recovered at the scene and fired from the
same gun. The medical examiner testified that the victim was killed as a result of a gunshot
wound to the back.

        We conclude that a rational trier of fact could have found beyond a reasonable doubt
that the Defendant knowingly killed the victim and that the Defendant did not act in self-
defense. The evidence is sufficient to support his conviction. He is not entitled to relief on
this basis.




                                              -7-
                                              II

       The Defendant contends that the trial court erred by admitting into evidence his
recorded police statement. He argues that the first unrecorded statement was unlawful
because it was obtained without reading his Miranda rights and that his subsequent recorded
statement was tainted by the first statement and was obtained in violation of his Fifth
Amendment right against self-incrimination. The State responds that the recorded statement
was admissible. We agree with the State.

       At the suppression hearing, Metro Police Detective Johnny Crumby, Jr., testified that
he investigated the victim’s shooting and that a warrant for the Defendant’s arrest was
obtained on February 24, 2011. He learned on February 26 that the Defendant was in police
custody in Giles County. He said the Defendant was transported to Davidson County and
arrived at 5:34 p.m. He said that the Defendant was handcuffed inside the transport van, that
the Defendant was agitated, that he removed the handcuffs, and that the Defendant requested
a cigarette. The Defendant was provided a cigarette and was permitted to smoke before
entering the police station. The Defendant also requested and was given a drink. He said
they walked outside and sat at a picnic table. He said the transport van remained in the
parking lot in the event the Defendant chose not to talk to them.

        Detective Crumby testified that the Defendant said the Giles County officers threw
tear gas into the house in which he was staying and pulled him from the attic. He denied
seeing any visible injuries or thinking the Defendant had suffered physical abuse. He said
that when they were sitting at the picnic table, he told the Defendant that he did not have to
talk to the police but that they “would like to hear [his] side of the story.” He said the
Defendant responded that “the media got it wrong,” that the victim “came up on him,” that
“words were exchanged,” and that he acted in self-defense. Detective Crumby said his
primary objective was to determine if the Defendant wanted to make a statement. He said
that they talked for about thirty minutes and that the conversation was not recorded.

        Detective Crumby testified that they went into the police station to an interview room.
He said he told the Defendant that the police could not “use” the statement he made outside
because he had not been read his Miranda rights. He gave the Defendant a rights waiver
form and read and explained it to him, and the Defendant read the form and signed it. He
said the Defendant was not intoxicated or under the influence of drugs and was a high school
graduate. He said he told the Defendant twice that he could stop answering questions at any
time. The Defendant’s statement was played for the trial court and was the same recording
played at the trial.




                                              -8-
        Detective Crumby testified that his firearm was holstered at his waist during the
interview and agreed that he asked the Defendant if he needed to use the restroom after the
interview. He said no additional officers were nearby during the interview. He said the
Defendant was well-spoken, pleasant, and nice when they talked. He denied using deceptive
tactics and overstating the amount of evidence the police had obtained. He denied the
Defendant asked to call friends and family or claimed to have been sleep deprived.

       Detective Crumby testified that after the Defendant said he wanted to “get the record
straight” when they were outside the police station, he did not ask the Defendant any
questions about what occurred. He said he only wanted to determine if the Defendant wanted
to make a statement and if he could release the transport van. He said he sat with the
Defendant as the Defendant talked, smoked cigarettes, and drank soda. He denied asking the
Defendant questions. He said the Defendant did not mention not seeing a gun in the victim’s
hand, telling Ms. Culp to report her car stolen, throwing the gun in the river, or describing
the location of the shooting.

       On cross-examination, Detective Crumby testified that when he and the Defendant
were at the picnic table, he told the Defendant, “We want to get your side of the story of what
happened here, and this is your time to talk, and I’m going to tell the D.A.s what you said.”
He said that when they were outside, the Defendant said repeatedly he acted in self-defense.
He denied asking the Defendant to explain how the media reports about the shooting were
wrong. He did not recall the Defendant’s stating the media reported that the shooting was
robbery related. He agreed the Defendant was not read his Miranda rights outside and said
he had no intention of reading him his rights outside.

        Detective Crumby testified that the Defendant was in police custody when he arrived
at the police station and was not free to leave. He denied his stating that he wanted to get the
Defendant’s side of the story was designed to obtain “a response . . . regarding the
investigation,” rather it was to determine if the Defendant wanted to talk to him. He said he
asked the Defendant, “Do you want to tell us what happened,” “Do you want to tell us your
side of the story,” and “Do you want to give a statement.” He said he anticipated a yes or no
response from the Defendant.

       Detective Crumby testified that the Defendant provided much more detail in the video
recorded interview than during their conversation outside the police station. He denied
knowing if the Defendant had previous convictions or if he had been interviewed by the
police previously. He said the Defendant did not ask any questions when he told the
Defendant that the police could not use the statements he made outside and that the
Defendant needed to be read his Miranda rights. On redirect examination, Detective Crumby



                                              -9-
testified that the media reported that the shooting was robbery related and that the victim was
shot in the back.

        The trial court found that upon the Defendant’s arrival at the police station, Detectives
Crumby and Injaychock took custody of the Defendant and “ascertained if he was willing to
communicate with officers.” The court found that outside the police station the Defendant
stated, “[Y]ep, the media got it wrong, I was defending myself.” It found that Detective
Crumby told the Defendant that his statements made outside could not be used against him
and that they needed to go inside and read the Defendant his Miranda rights. The court
found that the Defendant made voluntary statements which were not in response to “any
accusatory or demanding line of questioning.” The court found that the Defendant agreed
to go inside the police station after being told his statements were inadmissible, that they
went inside, and that the Defendant was read his Miranda rights.

       The trial court found that when asked if the Defendant wanted to talk to the police,
he neither accepted nor declined a request for an interview but said the media reports were
inaccurate, admitted firing a gun at the victim, and claimed self-defense. The court found
that during the first conversation, the detective did not ask the Defendant any questions about
the details of the shooting. Regarding the video recorded interview, the court found that the
Defendant was read his Miranda rights before talking about the details of the shooting, that
the door to the interview room remained open, and that the Defendant communicated
effectively. The court found that the Defendant was treated with respect at all times. The
court found that the environment and the detective’s conduct did not prevent the Defendant
from making a free, voluntary, and informed choice to waive his right against self-
incrimination and provide a second, recorded statement to the police.

        A trial court’s factual findings on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. The prevailing party is entitled to the strongest legitimate view of the evidence
and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521
(Tenn. 2001). The application of the law to the facts as determined by the trial court is a
question of law, which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997). In reviewing the correctness of a trial court’s ruling on a motion to
suppress, this court is permitted to consider evidence presented at the trial and at the
suppression hearing. See State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998); see also
State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012).



                                              -10-
        The Fifth Amendment of the United States Constitution, made applicable to the states
by the Fourteenth Amendment, provides that “no person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. Article I, section 9
of the Tennessee Constitution states that “in all criminal prosecutions, the accused shall be
compelled to give evidence against himself.” Tenn. Const. art. I, § 9. A defendant “must be
warned prior to any questioning [of] the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed[.]” Miranda v. Arizona, 384 U.S.
436, 479 (1966). The Supreme Court has defined custodial interrogation as “questioning
initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” Id. at 444. A statement obtained
during a custodial interrogation without advising a defendant of his Miranda rights must be
excluded from the prosecution’ s case-in-chief. Oregon v. Elstad, 470 U.S. 298, 307 (1985).

        A defendant may knowingly, intelligently, and voluntarily waive his right against self-
incrimination only after he has been advised of his Miranda rights. Id. In determining
whether a defendant has knowingly, intelligently, and voluntarily waived his rights under
Miranda, a trial court should consider the totality of circumstances, including the age of the
defendant, his education and intelligence level, the extent of his previous experience with the
police, the length of time of the questioning, the length of the detention before the statement
was made, whether the defendant was advised of his rights, whether the defendant was
injured, intoxicated, or under the influence of drugs, the defendant’s health at the time of the
statement, whether the defendant was deprived of food, sleep, or medical attention, whether
the defendant was physically abused, and whether the defendant was threatened with abuse.
State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (citing State v. Readus, 764 S.W.2d
666, 671 (Tenn. Crim. App. 1988)).

       Our supreme court has stated that the protection under our state constitution is broader
than that of the Fifth Amendment and that a rebuttable presumption exists that “a subsequent
confession, even if preceded by proper Miranda warnings, is tainted by the initial illegality.”
State v. Smith, 834 S.W.2d 915, 919 (Tenn. 1993); see State v. Daily, 273 S.W.3d 94, 110
(Tenn. 2009). The critical issue is whether the “events and circumstances surrounding and
following the initial, illegal conduct of the law enforcement officers prevented the accused
from subsequently (1) making a constitutional right not to provide evidence against [oneself],
and (2) voluntarily confessing his involvement in the crime.” Id. In determining the
voluntariness of a statement, the courts should consider coercive tactics to obtain the first
statement, the time between the two statements, whether the defendant was advised of his
Miranda rights before the subsequent statement, the length of the detention between arrest
and the police interview, whether the defendant was deprived of food, rest, and use of a
bathroom, the presence of intervening factors such as consulting with family, friends, or

                                              -11-
counsel, the psychological effect of having confessed previously, whether the defendant was
advised if the previous statement may not be admissible, whether the defendant initiated the
conversation leading to the subsequent statement, and the defendant’s sobriety, education,
intelligence, and experience with the law. Id. at 919-20.

        The evidence shows that when the Defendant arrived at the police station, Detective
Crumby asked the Defendant if he wanted to tell his side of the story. The detective
anticipated a yes or no response, but the Defendant made statements regarding the media’s
wrongful claims that the shooting was robbery related and said he acted in self-defense. The
trial court credited the detective’s testimony that his question was not designed to elicit a
statement about how the shooting occurred but to determine if the Defendant wanted to make
a statement. The record shows that the Defendant was in police custody, was not permitted
to leave, and was not provided his Miranda warnings before making his first statement
outside the police station.

       Regarding the video recorded statement, the Defendant was told that any comments
he made outside the police station were inadmissible because he had not been read his
Miranda rights, and the Defendant agreed to go inside the police station to receive his
Miranda rights and provide a statement about how the shooting occurred. Detective Crumby
read and explained the waiver of rights form to the Defendant, who read and signed it. The
detective said the Defendant was not intoxicated, under the influence of any drugs, or sleep
deprived, which is supported by the video recording. The Defendant did not complain of any
injuries resulting from his apprehension in Giles County, and none were visible during the
recorded interview. Likewise, Detective Crumby did not notice any injuries.

        The record shows that the Defendant was a high school graduate and was told he
could stop answering questions at any time. Detective Crumby said the Defendant was well-
spoken, pleasant, and nice. The Defendant was provided two beverages and asked if he
needed to use the restroom. Only Detectives Crumby and Injaychock were involved in the
interview, and no additional officers were inside the interview room. We note that the video
recording showed the door to the interview room was open. Detective Crumby denied using
deceptive tactics and overstating the amount of evidence the police had obtained, which is
confirmed by the recording. The detective asked mostly open-ended questions and permitted
the Defendant to describe the events leading up to the shooting. Although the extent of the
Defendant’s previous experience with the police was unknown, the Defendant talked to the
detectives for thirty minutes outside and twenty minutes inside the police station. No
evidence shows that the Defendant was abused or threatened with abuse. We conclude that
the evidence does not preponderate against the trial court’s findings and that the court did not
err by failing to suppress the recorded statement. The Defendant is not entitled to relief on
this basis.

                                              -12-
                                               III

        The Defendant contends that the trial court erred by permitting the State to strike five
prospective African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
Although he concedes that “it can be inferred that the court did not find ‘purposeful
discrimination,’” the trial court failed to make the appropriate findings after the State offered
a race-neutral explanation for the use of its peremptory challenges. The State responds that
the trial court properly rejected the Defendant’s Batson challenges because the State gave
race-neutral explanations for dismissing the prospective jurors. We conclude that the
Defendant is not entitled to relief.

        Batson held that the Equal Protection Clause prohibited the prosecution’s exclusion
of potential jurors based solely upon their race. Id. at 89; cf. Georgia v. McCollum, 504 U.S.
42, 59 (1992) (extending rule to peremptory challenges made by a defendant). In order to
determine whether a peremptory challenge has been exercised based upon a prospective
juror’s race, the defendant must first establish a prima facie case of purposeful
discrimination. Batson, 476 U.S. at 96. Second, the prosecution must be allowed an
opportunity to rebut the prima facie case by offering a race-neutral reason for the challenge.
Id. at 97. If the prosecution does so, the court must determine, based upon the facts and
circumstances, whether the defendant has established purposeful discrimination. Id. at 98.
A prosecutor’s race-neutral explanation must be reasonably clear and specific. Id. However,
it need not be persuasive or even plausible. Purkett v. Elem, 514 U.S. 765, 767-78 (1995).
“Unless discriminatory intent is inherent in the prosecutor’s explanation, it will be deemed
race neutral.” Id. at 768. However, the trial court has the obligation to examine the proffered
race-neutral explanation and assess its plausibility in light of all the evidence and to
determine that the explanation is not pretextual. Miller-El v. Dretke, 545 U.S. 231, 251-52
(2005); see Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 906 (Tenn. 1996).

        At a bench conference during jury selection, the Defendant stated that five of the
seven prospective jurors challenged by the State were African-American and requested that
the State offer an explanation. Counsel noted that none of the remaining prospective jurors
were African-American. The trial court requested the State’s response. The prosecutor said
one of the challenged prospective jurors was Haitian and difficult to understand, although
the man spoke English. The prosecutor also stated that the Haitian man did not respond to
the State’s asking if DNA evidence was something he expected the State to present, which
concerned the prosecutor. Regarding a second male prospective juror, the prosecutor stated
that the man had a family member who had been incarcerated for a lengthy period of time
and that the juror had contact with the family member. Regarding a female prospective juror,
the State noted that her favorite uncle was incarcerated for murder and that she said it was
possible she had feelings that the criminal justice system was unfair. The State believed that

                                              -13-
the female prospective juror had reservations about the severity of the consequences of a first
degree murder conviction and that she believed her uncle deserved a second chance after
serving an extended period of time in confinement. Regarding another male juror, the
prosecutor said the juror was a former defense attorney and noted he also used a peremptory
challenge for a Caucasian attorney. Regarding another male juror, the prosecutor said that
the juror was a scientist and that he routinely struck scientists from the jury because “they
deal in known quantities more than your average citizen” and because “[b]eing able to prove
things in the scientific community is a very high degree to make a finding of proof.” The
prosecutor stated that two African-American jurors remained and that the State had
challenged Caucasian jurors. The trial court responded, “Well, you’ve made your objection
and I’m going to . . . let it be there, and we’ll see what happens next.” Jury selection
resumed, and no additional prospective jurors were excused.

        The record reflects that the State challenged ten prospective jurors, five of whom were
African-American, that the Defendant alleged the challenges were racially motivated, and
that the trial court requested the State’s response, indicating that the Defendant had presented
a prima facie case of purposeful discrimination. The State provided race-neutral
explanations for its exercising peremptory challenges against each African-American
prospective juror. We agree with the Defendant that the trial court failed to make the
required findings regarding whether purposeful discrimination was shown. We conclude,
though, that the trial court’s failure does not obligate this court to reverse the conviction.

        In State v. Hugueley, 185 S.W.3d 356 (Tenn. 2006), the trial court failed to make the
appropriate findings after the defendant alleged the State had violated Batson in the use of
its peremptory challenges. Our supreme court, though, reviewed the record and concluded
that the trial court did not err in determining that the defendant had not established
purposeful discrimination by the State. Id. at 375. After reviewing the record, we conclude
that the State’s explanations for its peremptory challenges were clear, specific, and race-
neutral. The race-neutral explanations are supported by the record, and we cannot conclude
that the explanations were pretextual.

       We note that the trial court’s stating that counsel had made his objection and that it
was going to “let it be” in the record suggests that the court was not convinced the challenges
were racially motivated. We note, too, that the Defendant concedes in his brief that the trial
court’s not finding purposeful discrimination can be inferred from the record. “[T]he
ultimate burden of persuasion regrading racial motivation rests with, and never shifts from,
the opponent of the strike.” Purkett, 514 U.S. at 768. Although the Defendant alleged
generally that the State’s challenges were racially motivated, he fails to present evidence
rebutting the State’s race-neutral explanations. We note that the record shows that two



                                              -14-
African-American jurors participated in the deliberations. Under these circumstances, we
conclude that the Defendant is not entitled to relief.

                                                 IV

       The Defendant contends that the trial court erred by failing to include aggravated
assault in the jury instructions. He argues the evidence supported the inclusion of the
instruction. The State responds that the trial court properly declined to include an aggravated
assault instruction. We conclude the Defendant is not entitled to relief.

        In a jury-out hearing, the Defendant requested the trial court to include aggravated
assault as a lesser included offense of first degree murder to the jury charge. He argued that
aggravated assault was a lesser included offense of premeditated first degree murder and that
the jurors could find that the Defendant’s intent was to commit an assault with a deadly
weapon but was not to kill the victim. The court responded that it did not “see, when a
person dies, having an assault or aggravated assault charged.” The record reflects that the
trial court charged as lesser included offenses second degree murder, voluntary manslaughter,
reckless homicide, and criminally negligent homicide.

        In criminal cases, the trial court must give “a complete charge of the law applicable
to the facts of the case and the defendant has a right to have every issue of fact raised by the
evidence and material to his defense submitted to the jury upon proper instructions by the
judge.” State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). An erroneous jury
instruction deprives the defendant of the constitutional right to a jury trial and is subject to
a harmless error analysis. See State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000). A
jury instruction must be reviewed in its entirety and read as a whole rather than in isolation.
State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). “An instruction should be considered
prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly submit
the legal issues or misleads the jury as to the applicable law.” State v. Faulkner, 154 S.W.3d
48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)).

        Tennessee Code Annotated section 40-18-110 (2012) governs the issue of whether a
lesser included offense should be included in the trial court’s final jury instructions. Code
section 40-18-110(a) states, “When requested by a party in writing prior to the trial judge’s
instructions to the jury . . . , the trial judge shall instruct the jury as to the law of each offense
specifically identified in the request that is a lesser included offense of the offense charged
in the indictment[.]” Id. § 40-18-110(a). The court, though, “shall not instruct the jury as
to any lesser included offense unless the judge determines that the record contains any
evidence which reasonable minds could accept as to the lesser included offense.” Id. A
written request for the inclusion of a lesser included offense is required by the statute, and

                                                -15-
“[a]bsent a written request, the failure of a trial judge to instruct the jury on any lesser
included offense may not be presented as a ground for relief either in a motion for a new trial
or on appeal.” Id. § 40-18-110(c). Because “a defendant has a constitutional right to a
correct and complete charge of the law to ensure . . . a fair trial,” failure to request a lesser
included offense instruction in writing does not prevent plain error review. State v. Paige,
184 S.W.3d 223, 229 (Tenn. 2006) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990));
see State v. Wilson, 211 S.W.3d 714, 720 (Tenn. 2007).

          Pursuant to Code section 40-18-110(f)(1), “[a]n offense is an lesser included offense
if all its statutory elements are included within the statutory elements of the offense charged.”
Id. § 40-18-110(f)(1). Second degree murder is a lesser included offense of first degree
murder, and voluntary manslaughter is a lesser included offense of premeditated first degree
murder and second degree murder. Id. § 40-18-110(g)(1), (2).

        The record fails to show that the Defendant requested in writing that aggravated
assault be presented in the jury charge as a lesser included offense of first degree murder.
As a result, the Defendant’s contention is not an appropriate ground for relief on appeal. Id.
§ 40-18-110(c). We also conclude that the Defendant has failed to establish plain error. See
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). This court has concluded that aggravated assault is not
a lesser included offense of first degree murder. See State v. John C. Walker, III, No.
M2005-01432-CCA-RM-CD, slip op. 10-11 (Tenn. Crim. App. July 28, 2005) (applying the
same test identified in T.C.A. § 40-18-110(f)(1) to conclude that aggravated assault is not a
lesser included offense of first degree murder). Likewise, the evidence presented at the trial
does not support an aggravated assault instruction. The Defendant stated that the victim
approached him, yelled at him, and stood “right beside him.” The Defendant said he felt
threatened, went to his car, retrieved his gun, and shot at the victim because it was “going to
be me or him.” The Defendant is not entitled to relief on this basis.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                                ____________________________________
                                                JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -16-
