           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            DECEMBER SESSION, 1996


STATE OF TENNESSEE,             )      C.C.A. NO. 02C01-9601-CR-00013
                                                                     FILED
                                )
                                                                      October 2, 1997
      Appellee,                 )
                                )
                                                                     Cecil Crowson, Jr.
                                )      SHELBY COUNTY                 Appellate C ourt Clerk
VS.                             )
                                )      HON. JOHN P. COLTON, JR.
TELLY M. SLAYON,                )      JUDGE
                                )
      Appellant.                )      (First Degree Murder)




FOR THE APPELLANT:                     FOR THE APPELLEE:

WALKER GW INN                          CHARLES W. BURSON
Assistant Public Defender              Attorney General and Reporter
201 Poplar Suite 2-01
Memphis, TN 38103                      MICHAEL J. FAHEY, II
                                       Assistant Attorney General
                                       DENIELLE V. YOUNG
                                       Legal Assistant
                                       450 James Robertson Parkway
                                       Nashville, TN 37243

                                       WILLIAM L. GIBBONS
                                       District Attorney General

                                       JERRY KITCHEN
                                       Assistant District Attorney
                                       201 Poplar, Third Floor
                                       Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On February 10, 1995, Appellant T elly Slayton was fou nd guilty by a

Shelby County Criminal Court jury of murd er in the perpe tration o f robbe ry in

violation of Tennessee Code Annotated Section 39-1 3-202(2) (Su pp. 1996). The

trial court ordered a sentence of life imprisonment. On appeal, Appellant raises

three issues for review: (1) whether the evidence presented at trial was sufficient

as a matter of law to s ustain the co nviction ; (2) wh ether th e trial co urt erre d in

overruling Appe llant’s m otion to supp ress h is statement given to police officers;

and (3) whether the trial court erred in admitting, over Appellant’s objection, a

photograph of the victim taken while the victim was alive.



       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                Factual Background

       On the afternoon of Aug ust 6, 1 992, th e victim , Dan ny W hite, an d his

friend, Tom Smith, entered the B & B Gro cery in S helby C ounty to play p ool in

the groce ry store ’s poo lroom locate d in the back of the s tore. O n his way to the

poolroom, the victim stoppe d at the cash re gister and purchased some cigarettes.

The cash register attendant noticed that the victim had at least two hundred

dollars with him. W hile the victim and Mr. Smith were in the poolroom, Appellant

was seen entering the poolroom . Minutes later while Mr. Smith was in the

bathroom, he ove rhear d a de man d for m oney, the victim ’s refusal, and a gunsh ot.

Upon exiting the bathroom, Mr. Smith found his friend dead. The victim had been

shot in the chest with a .38 caliber gun. Immediately after the shooting, Appellant




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was seen w earing a ski mas k running out of the s tore. On ly sixty-five cents in

chang e was fo und on the victim’s b ody.

       On August 7, 1995, Appellant, a juvenile and his mother agreed to go with

the police to the police homicide department for questioning. Upon arriving at the

police station, Ap pellant an d his mo ther were taken to an interview room.

Appellant was advised of his Miranda rights and signed a waiver of rights form.

At some point during the questioning, Appellant’s mother was asked to leave, and

she left voluntarily. After questioning, Appellant indicated that he wanted to make

a statement. Before giving his statement, Appellant’s mother came back into the

interview room and the police investigators again read Appellant his rights.

Appellant then adm itted to k illing the victim b ecau se the victim had ro bbed him

the day before the incident. The investigating officer testified that no threats or

intimidation was used to obtain Appellant’s statement.         After a hearing on

Appe llant’s motion to suppress, the trial court found that Appellant’s confession

was voluntary and admissible.



                         I. Sufficiency of the Evidence

      Appellant first claims that the evidence is insufficient, as a matter of law,

to sustain th e convictio n for mu rder in the p erpetration of robbery. When an

appeal challe nges the su fficienc y of the e videnc e, the s tanda rd of rev iew is

whether, after vie wing th e evide nce in the light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime beyond

a reason able do ubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v.

Evans, 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740

(1994); T.R.A P. 13(e). On appeal, the State is entitled to the strongest legitimate

view of the e vidence and all reasonable or legitimate inferences which may be

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drawn therefrom . State v. Cabbage, 571 S .W .2d 83 2, 835 (Ten n. 197 8). Th is

Court will not reweigh the evidence, re-evaluate the evidence, or su bstitute its

evidentiary inferences for those reached by the jury. State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973). As the Supreme Court of Tennessee said in Bolin v.

State:

         This well-settled rule rests on a sound foundation. The
         trial judge and the jury see the witnesses face to face,
         hear their testimony and observe their demeanor on the
         stand. Thus the trial judge and jury are the primary
         instrum entality of justic e to determine the weight and
         credibility to be given to the testimony of witnesses. In the
         trial forum alone is there human atmosphere and the
         totality of the evide nce ca nnot be reproduced with a
         written reco rd in this Co urt.


405 S.W .2d 768 (1966). T hus, a jury v erdict is en titled to grea t weight.

         Once approved by the trial court, a jury verdict accredits the witnesses

presented by the State and resolves all conflicts in favor of the State. State v.

Hatchett, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842

(Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony,

and the reconciliation of conflicts in the proof are matters entrusted exclus ively

to the jury as trier of fact. State v. Sheffie ld, 676 S.W .2d 542, 547 (Tenn. 198 4).

A jury’s guilty verdict removes the presumption of innocence enjoyed by the

defendant at trial and raise s a presu mption of guilt. State v. Tug gle, 639 S.W.2d

913, 914 (T enn. 19 82). The defendant then bears the burden of over com ing this

presu mptio n of guilt on ap peal. State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977).

         First-degree murder includ es “[a] killing of another committed in the

perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code Ann.

§ 39-13-2 02(2).      Ap pellant argues tha t the evid ence subm itted at tria l is


                                           -4-
insufficient to support his conviction because there was no “clear” evidence that

he intended to rob the victim. Counsel for Appellant suggests the possibility that

the victim lost the money he brought into the poolroom while gambling. Appellant

also argues that Mr. Sm ith’s testimony that he overheard someone demand

money from the victim should not be believed because Mr. Smith was smoking

crack in the b athroo m wh en he supp osed ly overheard the demand. Furthermore,

Appellant claims that no one identified the voices of either the person making the

alleged demand for money or the victim’s voice.

       W hile Appellant’s speculation about what could have happened to the

victim’s money is possible, the jury appare ntly believed App ellant took the m oney.

In addition, the credib ility of witnesses is entirely within the provinc e of the jury.

The fact that Mr. Smith was high on cocaine when he heard the demand for

money was considered by the jury which nevertheless found Smith credible.

Sheff ield, 676 S.W.2d at 547. Finally, Appellant is incorrect in his assertion that

no one iden tified the voice of the victim . Mr. Smith testified that wh ile he w as in

the bathroom he heard the victim refuse a demand for money. Although no one

identified Appellant’s voice, Appellant was positively identified entering the

poolroom minutes be fore the fatal shot wa s fired and imm ediately thereafter.

Appellant admitted shooting the victim because the victim had allegedly robbed

Appellant the day before the incident. The victim was seen with at le ast two

hundred dollars before the shooting, and only sixty-five cents was found on the

victim after the shooting. Clearly, the evidence was sufficient as a matter of law

to support Appellant’s conviction.



                 II. Denial of Appellant’s Motion to Suppress




                                          -5-
       Appellant next argues that the trial jud ge erred in denying his motio n to

suppress his statement given to the police. Appellant claims that the statement

was not given voluntarily because he wa s only sixteen at the time of the

statem ent, the police excluded his mother from questioning, and the police

threatened him with the electric chair. The question before us is whether, under

the totality of the circumstances, Appellant’s confession was the resu lt of a

knowing and intelligent waiver of constitu tional rights. State v. Gordan, 642

S.W.2d 742, 744 (Tenn. Crim. App. 1982). In making that determination, we are

mindful that the trial court’s findings on a motion to su ppress are c onclusive on

appeal unless th e eviden ce prep ondera tes aga inst those findings. Braziel v.

State, 529 S.W .2d 501 , 506 (T enn. C rim. App . 1975).

       In the instant case, the record reveals that Appellant was informed of his

Miranda rights befo re being question ed. See Miranda v. Arizona, 86 S.Ct. 1602

(1966). After being informed of his Miranda rights, he signed a waiver o f rights

form. Appellant was asked if he understood these rights to which he responded

affirmatively. Before Appellant gave h is state men t adm itting to k illing the victim

he was again explained his Miranda rights. While Appellant claims that the

investigating officer threatened him with the electric chair, the investigating officer

denied ever making such a comment. Although Appellant’s mother was not

present throughout questioning, the volun tarines s and adm issibility o f a juven ile’s

confession is not dep enden t upon the presen ce of his p arents or an attorney at

interrogation when full Miranda warnings have been given and understood.

Braziel, 529 S.W .2d at 506 . We find nothing in the record that preponderates

again st the trial court’s findings that Appellant’s statement was knowingly and

voluntarily entered.




                                          -6-
                 III. Admiss ibility of Pho tograp h of the Victim

      Next Appellant argues that the trial judge erred in allowing the State to

introduce a photograph of the vic tim taken while he was alive. The picture of the

victim depicts the victim in his military uniform. Appellant contends that the

photo graph was n ot relev ant an d was overly p rejudic ial.

      The admissibility of photographs lies within the sound discretion of the trial

judge and will not be overturned on appeal except upon a clear showing of an

abuse of discretion . State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Our

courts have held that pictures of a homicide victim should not be admitted at trial

because they are o f tenuou s relevan cy. See, e.g., State v. Dicks, 615 S.W.2d

126, 128 (T enn. 19 81); State v. Strouth, 620 S.W .2d 467, 472 (Tenn. 198 1);

State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App. 1985). As the court

said in State v. Dicks, “it would have been better had the ‘before’ picture of [the

victim] been e xcluded since it adde d little or nothing to the sum total of

knowledge of the jury.” 615 S.W.2d at 128.

      Here, the relevance of the photograph of the victim taken while he was

alive was minimal. However, in view of the overwhelming evidence that Appellant

shot the victim, admission of this photograph was at most harmless error. Tenn.

R. App. P. 36 (b).



      W e conc lude th at the e videnc e was sufficie nt as a matte r of law to susta in

Appe llant’s conviction , that App ellant’s state ment to the police admitting to the

shooting was vo luntary , and th at the a dmis sion of the photograph taken of the

victim while he was alive did not constitute prejudicial error. The judgment of the

trial court is therefore affirmed.




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                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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