         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 25, 2003

STATE OF TENNESSEE v. PATRICK DESHUN PARIS, ALIAS PATRICK
                      DESHON PARRIS


                Direct Appeal from the Criminal Court for Hamilton County
                       Nos. 224116, 224232   Rebecca J. Stern, Judge



                                 No. E2002-01514-CCA-R3-CD
                                         July 29, 2003

A jury found the defendant guilty of first degree premeditated murder, first degree felony murder,
and especially aggravated robbery. The two first degree murder convictions merged, and the jury
sentenced the defendant to life without the possibility of parole. The trial court sentenced the
defendant to twenty-four years for especially aggravated robbery, to run concurrently with his
previous sentence for abuse of a corpse. The defendant argues that the trial court erred in failing to
suppress an incriminating statement he made on December 2, 1998, that the jury charge regarding
criminal responsibility was in error and that his sentencing was erroneous. We affirm the judgments
of the trial court.

     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 JAMES CURWOOD WITT,
JR. and ROBERT W. WEDEMEYER , JJ., joined.

Jeffrey Schaarschmidt, Chattanooga, Tennessee, for the appellant, Patrick Deshun Paris, Alias
Patrick Deshon Parris.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Lila Statom and Dean C. Ferraro, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                                Facts

       On August 24, 1998, the dead body of Michael Lawrence was found in a dumpster in a
Cleveland, Tennessee apartment complex. Fingerprints found at the scene led police to the
defendant, Patrick Deshun Paris. On August 25, 1998, after being advised of his Miranda rights, the
defendant gave a statement to Chattanooga Detective Michael Mathis, denying any involvement in
the shooting or disposal of the victim. During the same interview, the defendant also said that a
Jamaican drug dealer from Chattanooga killed the victim in his sleep. Later in the interview, the
defendant said the same drug dealer killed the victim in his car. Subsequently, the defendant was
charged with the killing.

         On September 19, 1998, the defendant met with the District Attorney General in order to give
information about other crimes in return for the State not seeking the death penalty in the instant
case. This meeting lasted about eight hours, with defense counsel present for only the first three
hours. Ultimately, the information gathered from the defendant at this meeting was suppressed by
the trial court.1

        On November 18, 1998, the defendant was indicted on one count of abuse of a corpse, one
count of especially aggravated robbery, one count of premeditated murder, and one count of felony
murder. Also that day, while still in custody, the defendant left a message for Detective Mathis that
the defendant had information about the death of a state trooper and that he wanted to talk. On
December 2, 1998, Detective Mathis had the defendant brought to the police department to discuss
the matter. The defendant’s attorney was not present during this interview and what happened at this
point is controverted.

       It is the State’s position that the defendant initiated the conversation, and during the
conversation, without the police specifically questioning him about it, the defendant said he was the
triggerman in the shooting of Michael Lawrence. The defendant denies that he initiated the
conversation and denies that he admitted to being the triggerman in the Lawrence murder.
Additionally, he claims that he immediately discontinued all discussions when Detective Mathis
questioned him about the matter and that he requested his attorney. The admission of this
incriminatory statement is, inter alia, at issue on appeal.

       Prior to the jury trial, the defendant pled guilty to abuse of a corpse. Following the jury trial
on May 19, 2001, the defendant was convicted of first degree premeditated murder, first degree
felony murder, and especially aggravated robbery. The jury then sentenced the defendant to life
without the possibility of parole for the two murder convictions, which were merged. On August
20, 2001, the defendant was sentenced as a Range I, violent offender to twenty-four years for the
especially aggravated robbery, to run concurrently with his sentence for abuse of a corpse.

       The defendant’s motion for a new trial was denied on June 10, 2002.

        On appeal, the defendant raises three issues:
        (1) Whether the trial court properly denied the defendant’s motion to suppress the
            December 2, 1998 statement;



       1
           The Sep temb er 19 , 199 8 statem ent is not the subject of this appeal.

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        (2) Whether the trial court properly charged the jury concerning criminal
            responsibility; and
        (3) Whether the use of the defendant’s prior conviction as an aggravating factor
            during sentencing was in error.

                                     MOTION TO SUPPRESS

       After a hearing on May 16, 2001, the defendant’s motion to suppress the December 2, 1998
statement was denied. In doing so, the trial court made the following findings:
       (1) The defendant initiated the conversation;
       (2) The defendant knew of his rights to counsel;
       (3) Detective Mathis did not interrogate or question the defendant;
       (4) The conversation that took place was not an in-custody interrogation; and
       (5) The statement was a voluntary one initiated by the defendant.

                                        Standard of Review

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). 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). However, this court is not bound
by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of
establishing that the evidence contained in the record preponderates against the findings of fact made
by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

        In Miranda v. Arizona, the United States Supreme Court held that the prosecution cannot
admit a statement by the defendant stemming from “custodial interrogation” unless it demonstrates
the use of procedural safeguards effective to secure the privilege against self-incrimination. 384 U.S.
436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). The Court 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. Thus,
because Miranda is only implicated when the defendant is questioned while in the coercive
environment associated with being in police custody, our initial inquiry is whether defendant was
subjected to “custodial interrogation.”

       Recently, our Supreme Court developed the test in Tennessee for determining whether an
individual is “in custody” as contemplated by Miranda. State v. Anderson, 937 S.W.2d 851 (Tenn.
1996). We must determine whether, “under the totality of the circumstances, a reasonable person


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in the suspect’s position would consider himself or herself deprived of freedom of movement to a
degree associated with formal arrest.” Id. at 855. Factors relevant to that determination include:
        [T]he time and location of the interrogation; the duration and character of the
        questioning; the officer’s tone of voice and general demeanor; the suspect’s method
        of transportation to the place of questioning; the number of police officers present;
        any limitation on movement or other form of restraint imposed on the suspect during
        the interrogation; any interactions between the officer and the suspect, including the
        words spoken by the officer to the suspect, and the suspect’s verbal or nonverbal
        responses; the extent to which the suspect is confronted with the law enforcement
        officer’s suspicions of guilt or evidence of guilt; and finally, the extent to which the
        suspect is made aware that he or she is free to refrain from answering questions or
        to end the interview at will.
Id.

      The burden is clearly on the defendant to establish that the evidence in the record
preponderates against the findings of fact made by the trial court.

        There were only two witnesses at the motion to suppress hearing: Detective Mathis and the
defendant. After a careful review of the record and giving the strongest legitimate view of the
evidence and inferences to be made from that in favor of the State, we conclude that the defendant
has failed to meet his burden.

        Detective Mathis testified that the defendant initiated the contact with police that led to the
incriminating statement. Mathis testified that after a conversation with the defendant concerning an
unrelated case, the defendant told him that “he in fact had pulled the trigger that killed Michael
Lawrence.” Mathis testified that he was not questioning the defendant about the instant case nor did
he question him about it after the incriminating statement.

       The defendant testified that he did not initiate the conversation and that he asked to have his
attorney present at the meeting.

        Based on our standard of review, it simply was not error for the trial court to credit the
testimony of Detective Mathis and discredit the testimony of the defendant. Crediting the testimony
of Detective Mathis leads to the conclusion that this was not a custodial interrogation concerning the
instant case and that, indeed, it was the defendant who initiated the contact. Having found as such,
it was not error to fail to suppress the incriminating statement. The defendant has failed to
demonstrate that the record preponderates against the trial court’s findings. Accordingly we affirm
this judgment of the trial court.




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                                           JURY CHARGE

         The defendant contends that the part of the jury charge concerning the criminal responsibility
for the conduct of another, as it related to the first degree murder charge, was erroneously given. The
relevant charge was as follows:
                  Criminal Responsibility for Conduct of Another: A defendant is criminally
         responsible as a party to a criminal offense if the offense was committed by a
         defendant’s own conduct, by the conduct of another for which the defendant is
         criminally responsible, or by both. Each party to the offense may be charged with the
         commission of the offense.
                  A defendant is criminally responsible for an offense committed by the
         conduct of another if, acting with the intent to promote or assist the commission of
         the offense, or to benefit in the proceeds or results of the offense, the defendant
         solicits, directs, aids, or attempts to aid another person to commit the offense.
                  Before you find a defendant guilty of being criminally responsible for said
         offense committed by the conduct of another, you must find that all the essential
         elements of said offense have been proven by the State beyond a reasonable doubt.

       Tennessee Code Annotated section 39-11-402 states:
               A person is criminally responsible for an offense committed by the conduct
       of another if:
                 (1) Acting with the culpability required for the offense, the person causes
       or aids an innocent or irresponsible person to engage in conduct prohibited by the
       definition of the offense;
                 (2) Acting with intent to promote or assist the commission of the offense,
       or to benefit in the proceeds or results of the offense, the person solicits, directs, aids,
       or attempts to aid another person to commit the offense; or
                  (3) Having a duty imposed by law or voluntarily undertaken to prevent
       commission of the offense and acting with intent to benefit in the proceeds or results
       of the offense, or to promote or assist its commission, the person fails to make a
       reasonable effort to prevent commission of the offense.

       This court, in determining whether a jury charge was proper, must review the entire jury
charge and can find error only if, when read as a whole, the charge fails to submit the legal issues
or misleads the jury as to the applicable law. State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim.
App. 1994). In addition, such a misleading charge would be considered prejudicial error. State v.
Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

        The section of the jury charge that the defendant complains about deals only with the aspect
of a defendant’s criminal responsibility for the acts of another. We agree with the defendant that the
inclusion of such a charge could be misleading and therefore prejudicial if nowhere in the theory of
the case did the State have a theory of criminal responsibility for another. However, this is not the



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case, and therefore the charge, which accurately reflects Tennessee Code Annotated section 39-11-
402, is not an improper one.

       A review of the record reveals that when the defendant objected to this section of the jury
charge, the court responded, “I think there has been proof that at least they worked together to
dispose of the body. Therefore, I think the inference can be drawn that should Mr. Brooks have done
this murder that [the defendant] could be also responsible.”

       Indeed, the State set out in its opening statement that Brooks and the defendant knew each
other and worked together in the disposal of the victim’s body. During the direct examination of
Brooks, he testified that he did not have anything to do with the shooting but did help the defendant
dispose of the victim’s body because he was scared of the defendant (and therefore did what the
defendant told him to do). Additionally, he testified to helping clean up the crime scene. Moreover,
during cross-examination, the following colloquy occurred between the court and the defense
attorney:
               THE COURT: What I’m saying is, how could – you are saying that Marco
        Brooks’ motivation for killing– your theory is Marco Brooks killed him and the
        reason why is because he set up his uncle?”
               DEFENSE ATTORNEY: Yes.

        Furthermore, the defendant argued in his closing argument that Marco Brooks was the killer.
 He wants to argue an alternative theory to the killing, that it was not the defendant, but Marco
Brooks. Then he wants to argue that the jury cannot be charged that if Brooks was the killer and the
defendant merely assisted him, that the defendant is criminally responsible for the actions of Brooks.
We conclude there is no error in the charge to the jury concerning criminal responsibility for another.
The record reveals that there are at least two theories as to the killing of Michael Lawrence. Clearly,
there is the theory that the defendant shot the victim, supported by evidence of the defendant’s
confession, as well as other witnesses, including Marco Brooks’s testimony. Additionally, there is
an alternative theory to the crime, that it was Brooks who was the killer and the defendant was
criminally responsible for Brooks’s actions. As such, the jury charge is appropriate.

       Accordingly, we hold there was no error in the trial court’s jury charge regarding criminal
responsibility.

                                                    SENTENCING

        The defendant contends that the trial court erred in sentencing him for his first degree murder
conviction.2 Specifically, he claims it was error to use the statutory aggravating factor that the
defendant had been convicted of a prior felony. See Tenn. Code Ann.§ 39-13-204(i)(2), which reads
in relevant part:


          2
              The defendant is not appealing the sentences he received for especially aggravated robbery and ab use of a
corpse.

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         No death penalty or sentence of imprisonment for life without possibility of parole
         shall be imposed but upon a unanimous finding that the state has proven beyond a
         reasonable doubt the existence of one (1) or more of the statutory aggravating
         circumstances which are limited to the following:
         ***
         (2) The defendant was previously convicted of one (1) or more felonies, other than
         the present charge, whose statutory elements involve the use of violence to the person
         ....

        After finding the defendant guilty of first degree premeditated murder, first degree felony
murder, and especially aggravated robbery, the jury heard evidence concerning the penalty phase.
Afterwards, the jury found that “[t]he defendant was previously convicted of one or more felonies
other than the present charge, the statutory elements of which involve the use of violence to the
person.” The jury sentenced the defendant to life without the possibility of parole for the first degree
murder.

       The defendant argues that it was wrong for the jury to use the above aggravating factor
because the convictions for the previous felonies the court used occurred after the date of the current
offense. He does not argue that the prior convictions did not occur, only that they are not prior
convictions as applied to being used as an aggravating factor because the convictions occurred after
the commission of the offense in the instant case. A time line of relevant events will be useful:
       August 24, 1998: Murder of Michael Lawrence in the instant case.
       September 11, 1998: Convictions for especially aggravated robbery and attempted
           first degree murder in unrelated case.3
       May 19, 2001: Defendant convicted of first degree murder and especially aggravated
           robbery, and sentenced to life without the possibility of parole in the instant case.
       August 20, 2001: Sentencing hearing for especially aggravated robbery in the instant
       case.

        The defendant’s main contention is that since the convictions for the prior violent felonies
occurred after the commission of the current offense, that they are not prior convictions as applied
in Tennessee Code Annotated section 39-13-204(i)(2). He cites State v. Reynolds, where this court
stated, “[A] ‘prior conviction’ is defined by statute as a ‘conviction for an offense occurring prior
to the commission of the offense for which the defendant is being sentenced.’ Tenn. Code Ann. §
40- 35-107(b)(1).” State v. Reynolds, No. M2000-00210-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 381, at *23 (Tenn. Crim. App. May 23, 2001). However, Reynolds was not a capital case,
and the prior convictions being used in Reynolds were being used in the context of determining
whether that defendant was a persistent offender as set out in Tennessee Code Annotated section 40-
35-107(b)(1).


         3
           Additionally, the trial court stated it used a conviction for Aggravated Robbery, however, an examination of
the record failed to reveal that conviction’s date. That failure is irrelevant as the other two conviction s were clearly
included in the technical record.

                                                          -7-
        By contrast, the prior convictions used in the instant case were used in the context of being
aggravating factors, as required in order to sentence a defendant in a capital case to life without the
possibility of parole. In this context, it is only necessary that the defendant be convicted of the prior
violent offenses prior to the sentencing in the instant case. Indeed, as our Supreme Court recently
stated in addressing this issue:
        Our Supreme Court has recently reiterated its oft-repeated holding that, “so long as
        a defendant is convicted of a violent felony prior to the sentencing hearing at which
        the previous conviction is introduced, this aggravating circumstance is applicable.”
        State v. Hodges, 944 S.W.2d 346, 357 (Tenn. 1997) (emphasis in original). In State
        v. Nichols, 877 S.W.2d 722, 736, the Court specifically rejected the defendant's
        contention of a due process violation, even where the prosecutor admitted that the
        defendant's multiple trials had been ordered in such a way as to create an additional
        aggravating circumstance.
State v. Stout, 46 S.W.3d 689, 719 (Tenn. 2001) (appendix). While the defendant in Stout argued
that the use of the aggravator was unconstitutional due to a violation of ex post facto laws, the
language of our Supreme Court clearly indicates that it is not a due process violation to use a prior
conviction that occurs prior to an instant case’s sentencing as satisfying the statutory aggravating
factor as applied to Tennessee Code Annotated section 39-13-204(i)(2). Accordingly, we conclude
this issue is without merit.

                                           CONCLUSION

         After a careful review of the record, we hold that the trial court properly denied the
defendant’s motion to suppress his December 2, 1998 statement, that the jury was properly charged
as to criminal responsibility, and that there was no error in the use of the defendant’s prior conviction
as a sentencing aggravating factor. The defendant’s due process rights were not violated during his
sentencing for first degree murder. We affirm all judgments of the trial court.




                                                        ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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