        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 10, 2013 Session

                STATE OF TENNESSEE v. ERICA LAWRENCE

          Interlocutory Appeal from the Criminal Court for Shelby County
                     No. 10-06655     W. Otis Higgs, Jr., Judge


               No. W2013-00549-CCA-R9-CD - Filed January 24, 2014


Defendant, Erica Lawrence, was indicted, along with her co-defendant Charles Bragg, by the
Shelby County Grand Jury for first degree felony murder. Defendant filed a motion to
suppress a statement she gave to police in which she admitted that she was present during the
murder but stated that her co-defendant committed the murder. The trial court granted
Defendant’s motion to suppress, and the State filed an application for an interlocutory appeal,
which this court granted. After a thorough review of the record, we conclude that the
evidence does not preponderate against the trial court’s findings, and therefore, we affirm the
decision of the trial court to grant Defendant’s motion to suppress.

            Tenn. R. App. P. 9; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellant, State of Tennessee.

Stephen C. Bush, District Public Defender; Barry W. Kuhn, Assistant Public Defender; and
Dianne Thackery, Assistant Public Defender, Memphis, Tennessee, for the appellee, Erica
Lawrence.

                                         OPINION

Suppression hearing

       The following testimony was presented at the hearing.
       Sergeant Vivian Murray, of the Memphis Police Department, interviewed Defendant
on September 3, 2010, in connection with the investigation of the murder of the victim in this
case. Sergeant Murray testified that Defendant was advised of her Miranda rights, Miranda
v. Arizona, 384 U.S. 436 (1966) and signed a waiver form. Sergeant Murray testified that
Defendant appeared to have understood her rights, and Sergeant Murray did not have any
difficulty communicating with Defendant. Defendant told Sergeant Murray that she had
completed eleventh grade and that she had not ingested any drugs or alcohol within the 24
hours prior to the interview. Sergeant Murray noted on the waiver form that Defendant read
her rights aloud. Sergeant Murray testified that it took approximately three minutes to advise
Defendant of her Miranda rights and obtain Defendant’s signature on the waiver form.
Sergeant Murray testified that Defendant was shackled to a chair during the interview. The
interview was not recorded.

        Sergeant James Max was also present when Defendant waived her Miranda rights at
10:05 a.m. Sergeant Max also testified that Defendant read the waiver of rights aloud and
acknowledged that she understood it. Defendant identified her co-defendant, Charles Bragg,
in a photographic lineup and wrote: “This him [crossed through] This Charles the guy dat
[sic] shot Randy. [Defendant’s signature] 9-3-10 10:144 am[.]”

        Detectives interviewed Defendant from 10:08 a.m. until 1:30 p.m., when Sergeant
Murray left the interview. The detectives took a break from 1:30 until 2:15 p.m. Sergeant
Max testified that they took other breaks, and Defendant ate lunch. Between 2:16 and 4:36
p.m., Defendant gave a statement, which was transcribed, and Defendant initialed each page
of the typewritten statement. Sergeant Max testified that Defendant was pregnant at the time
of the interview. Sergeant Max testified that Defendant read the statement to herself and
signed and dated it. Sergeant Max testified that Defendant gave the statement after she had
been placed on a “forty-eight hour hold” and before an arrest warrant was obtained.

       Sergeant Eric Freeman, the case coordinator of the investigation, testified that
Defendant became a person of interest in the case after a witness reported that he had seen
a pregnant female going through the victim’s pockets. This pregnant female was also driving
a light colored Ford Taurus. The same witness identified Defendant in a photographic
lineup. The shooting occurred on September 1, 2010, and Defendant’s cousin told detectives
that Defendant always drove the victim around on the first day of the month because the
victim received a check at that time and Defendant would try to get money from him. On the
night of September 2, 2010, Defendant went to the police station voluntarily because she had
heard that police were looking for her. Sergeant Freeman advised police to “put her on the
hold for us until we came in the next morning to talk to her.” On cross-examination,
Sergeant Freeman testified that Defendant was taken into custody without an arrest warrant
because “there was enough probable cause for her to be arrested at that time.”

                                             -2-
       Dr. Wyatt Nichols, a clinical psychologist, testified for the defense. Pursuant to a
court order, Dr. Nichols evaluated Defendant’s mental competency to stand trial and her
competency to waive her Miranda rights. Dr. Nichols interviewed Defendant on April 19,
July 12, and July 14, 2012. Dr. Nichols reviewed Defendant’s school records, which showed
that Defendant was tested for special education at the age of 15 and had an IQ of 55. At that
time, Defendant’s reading and language skills were assessed at a third grade level.
Defendant was also evaluated in 2007 for employment purposes and had an IQ of 50.
Defendant was noted to have difficulty with memory, and the examiner noted that Defendant
“was markedly impaired in her ability to even do simple tasks without very direct supervision
and definitely could not follow through with anything that would be considered a complex
task.” The examiner also testified that Defendant was not able to ride the bus, be left alone
for any length of time, or take care of her own personal hygiene. The report that Dr. Nichols
reviewed also stated that Defendant was born to a cocaine-addicted mother, and she lived
with her aunt.

       Defendant was twenty-five years old at the time of Dr. Nichols’ evaluation. She
reported her age to Dr. Nichols as “a 2 and a 5.” Dr. Nichols described Defendant as “very
simple” and testified that she “rarely said more than a sentence of about five or six words.”
Defendant’s IQ was tested by Dr. Tucker Johnson for the court-ordered evaluation and Dr.
Johnson determined that it was “in the high 50's[,] low 60's.”

         Dr. Nichols testified that the examiners for each of Defendant’s prior evaluations
noted concern that Defendant might not have put forth her best effort. When Defendant was
tested at age 15, the examiner noted that she had been in a school fight the day before, and
it might have affected how much effort she put forth. Dr. Nichols testified that the examiner
for the 2007 evaluation noted that “she was surprised at how low the IQ was and she felt that
[Defendant] might function at a little bit higher level than that.” Dr. Johnson also expressed
doubt as to how much effort Defendant put forth in the evaluation. Dr. Nichols testified that
“it just seems like she’s not trying, she’s not trying. But to have three consistent testings at
15, 20 and now 25 and her IQ’s are almost the same, she couldn’t do that if she tried unless
those were about where she’s functioning.” Dr. Nichols opined that Defendant’s IQ was
“about 60 or so.” Dr. Nichols testified that an IQ score between 50 and 70 indicates that a
person is mildly mentally retarded.

        Dr. Nichols had Defendant read the advice of rights form aloud. Dr. Nichols testified
that Defendant read the first sentence, “you have the right to remain silent” as “you have the
right to a lawyer.” Dr. Nichols testified that he believed that Defendant read only the first
part of the sentence and then repeated a phrase that was familiar to her. Dr. Nichols asked
Defendant what an attorney is, and Defendant responded, “it’s that lady . . . . the one that
talks to [her] in court.” Dr. Nichols asked Defendant about the right to remain silent, and

                                              -3-
Defendant’s only response was “shh, shh.” Dr. Nichols testified that Defendant never
explained what it means to have the right to remain silent. Defendant acknowledged that she
understood that her statement could be used against her in court, but she stated “if I don’t talk
to them, they’ll take me to jail.” Dr. Nichols testified that he believed that Defendant thought
she had no choice of whether to talk to police and “that’s consistent with somebody who is
as low function as she is with authority figures.”

        Dr. Nichols testified that it was his opinion that Defendant did not understand the
Miranda warnings sufficiently to waive them. When Dr. Nichols interviewed Defendant in
April, he observed that “she could of [sic] been malingering.” He testified that Defendant
hesitated when answering his questions. After reviewing Defendant’s school records and
testing and meeting with her again, Dr. Nichols observed, “I think she could put forth more
effort if she really wanted to [ ] answer people’s questions but I don’t think it’s malingering.”
Dr. Nichols testified that Defendant’s “intellectual level is in the mental retardation range.”
He testified that he believed Defendant might have suffered brain damage as a result of her
mother having used cocaine at the time of Defendant’s birth. Dr. Nichols testified,
“[Defendant] could be very impaired in one area and have skills at a higher level in another
area according to what areas of her brain were [a]ffected by the chemicals that her mom was
using.”

        When Dr. Nichols asked Defendant to sign a release for her school records, Defendant
did not understand. Dr. Nichols testified, “I don’t know how many times I asked her and
tried to explain it to her and all she would say was I’m not there anymore, I’m not in school
anymore.” Dr. Nichols noted during his first meeting with Defendant that it was his opinion
that Defendant “did not understand her Miranda rights at the time of her police
interrogation.” He testified,

        [t]he only way she could [have] come close to understanding her rights was
        if the officers painstakingly and methodically went over each statement in
        the warning, explained it to her and then had her repeat what they had said.
        And then after finishing the whole statement ask her to say, say the whole
        statement in her own words and see if she understood it and how it applied
        to her.

       In rebuttal, the State called Dr. John Hutson, a clinical psychologist. Dr. Hutson
interviewed Defendant. Dr. Hutson did not state an opinion as to Defendant’s ability to
competently waive her Miranda rights but rather concluded that “it’s the judge’s decision.”
Dr. Hutson testified that he believed that Defendant understood her rights to have an attorney
present and to remain silent. Dr. Hutson noted that Defendant had been in traffic court and
seen attorneys in that context. He testified that Defendant “gave a good understanding of

                                               -4-
what an attorney is supposed to do” and that Defendant “did have some appreciation as a lay
person that an attorney was available on her behalf.” He also noted that, in her statement,
Defendant acknowledged that her co-defendant told her not to talk to police. Dr. Hutson
testified, “I think she knew she had the right to not talk [sic] if she didn’t want to.” Dr.
Hutson testified, however, that Defendant was illiterate, meaning that she could not read and
comprehend. He testified that he believed Defendant “made an honest effort.” Dr. Hutson
testified that he believed it would have taken Defendant “a long time” to read the advice of
rights form aloud and that she could not have comprehended it.

        The State recalled Dr. Nichols at a continuation of the suppression hearing on a later
date. Dr. Nichols testified that since his previous testimony at the suppression hearing, he
had been provided with “a couple dozen” recorded phone conversations Defendant had while
incarcerated. Dr. Nichols testified “it was apparent . . . that she functioned at a little higher
level than what she presented” to Dr. Nichols and that “she was not putting forth [her] best
effort” previously. Dr. Nichols testified that he consequently changed his opinion to
inconclusive. He testified that Defendant “did not put forth enough effort for [him] to
honestly and accurately evaluate her level of functioning.” On cross-examination, Dr.
Nichols could not point to any particular content of the phone conversations that caused him
to change his opinion, but he testified, “it was obvious that she was more engaged and more
interactive and just the idea that it was clearly that she was different than the person I had
talked to as far as how much effort she was putting into answering my questions.” Dr.
Nichols testified that Defendant “was more verbal and interactive and could answer
questions,” whereas in his interview with her, Defendant gave “one[-]word answers.”

        In a written order granting Defendant’s motion to suppress, the trial court found that
Defendant “could not have voluntarily, knowingly, and intelligently waived her Miranda
rights because of her mental retardation, thereby making her statement inadmissible.” In
making its ruling, the trial court relied upon evidence of Defendant’s low IQ, as well as Dr.
Nichols’ initial testimony that Defendant could not have read the advice of rights form aloud
and comprehended it and Dr. Hutson’s testimony that Defendant would not have been able
to read and comprehend the advice of rights form. The trial court noted that “Defendant read
the Miranda rights to herself and then [Sergeant Murray] proceeded to read them out loud
to the Defendant.”

Analysis

       The State sought an interlocutory appeal, challenging the trial court’s ruling on the
motion to suppress. On appeal, the State asserts that the trial court made an erroneous
finding that Defendant read the advice of rights form to herself, rather than aloud, and that
the evidence preponderates against the trial court’s findings because the trial court

                                               -5-
“completely disregarded Dr. Nichols’ subsequent testimony in which he withdrew his earlier
opinion.”

        Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S .W.2d 295, 299
(Tenn. 1999). 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. Odom, 928 S.W.2d at 23.

        The Fifth Amendment to the United States Constitution provides in part that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. Amend. V. Similarly, Article I, Section 9 of the Tennessee Constitution states that
“in all criminal prosecutions,” the accused “shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. An accused, however, may waive this right against
self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). In Miranda, the United
States Supreme Court held that a suspect must be warned prior to any questioning that he has
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 for him prior to any questioning if he so desires. Id. at 479. The Supreme
Court held that a suspect may knowingly and intelligently waive the right against
self-incrimination only after being apprised of these rights. Id. Accordingly, for a waiver
of the right against self-incrimination to be held constitutional, the accused must make an
intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id. at 444. A
court may conclude that a defendant voluntarily waived his rights if, under the totality of the
circumstances, the court determines that the waiver was uncoerced and that the defendant
understood the consequences of waiver. State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.
1994).

        The fact that a person suffers from certain mental deficiencies does not necessarily
prevent that person from understanding and waiving constitutional rights. See generally
State v. Middlebrooks, 840 S.W.2d 317, 327 (Tenn. 1992); 4 Wharton’s Criminal Evidence
§ 643 (14th ed.1987). A person with a mental deficiency may waive his Miranda rights if

                                               -6-
that waiver was knowingly and voluntarily made. State v. Green, 613 S.W.2d 229, 233
(Tenn. Crim. App. 1980); Braziel v. State, 529 S.W.2d 501, 505-06 (Tenn. Crim. App. 1975).
When determining whether an accused has voluntarily, knowingly, and intelligently waived
his Miranda rights, this Court must consider the totality of the circumstances which existed
when the accused waived these rights. Middlebrooks, 840 S.W.2d at 326; State v. Benton,
759 S.W.2d 427, 431 (Tenn. Crim. App. 1988). The “totality of the circumstances must
reveal ‘an uncoerced choice and the required level of comprehension.’” State v. Blackstock,
19 S.W.3d 200, 208 (Tenn.2000) (quoting State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.
1994)).

       A defendant’s mental retardation is but one of a number of different factors to be
considered in the determination of whether the waiver of Miranda rights was knowing and
voluntary. In Blackstock, 19 S.W.3d at 208, our supreme court observed:

        Although there is likely to be a level of deficiency so great that it renders a
        defendant unable to make a knowing and intelligent waiver, nearly every
        court to consider the issue has held that mental impairments or mental
        retardation are factors that must be considered along with the totality of the
        circumstances. As one court has said, “no single factor, such as IQ, is
        necessarily determinative in deciding whether a person was capable of
        knowingly and intelligently waiving, and do [sic] so waive, the
        constitutional rights embraced in the Miranda rubric.” Fairchild v.
        Lockhart, 744 F. Supp. 1429, 1453 (E.D. Ark. 1989). Among the
        circumstances courts have considered are the defendant’s age, background,
        level of functioning, reading and writing skills, prior experience with the
        criminal justice system, demeanor, responsiveness to questioning, possible
        malingering, and the manner, detail, and language in which the Miranda
        rights are explained. As a result, courts tend to reach results that are
        somewhat fact-specific.

Id. (footnote omitted). The State has the burden of proving the waiver by a preponderance
of the evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

        In its order granting Defendant’s motion to suppress, the trial court likened the facts
of this case to those in Blackstock, 19 S.W.3d 200 (Tenn. 2000), finding that Defendant’s IQ
was assessed at three separate times, to be between 50 and 60, putting her in the range of
mildly mentally retarded. The trial court also noted that Defendant was found to be illiterate.
The Defendant in Blackstock could not read or write, had an IQ of 55, and functioned at the
level of a child of six to nine years of age. Id. at 209. In Blackstock, the arresting officer
read the Miranda rights to the defendant, explained them in “plain language,” and believed

                                              -7-
the defendant understood that he was waiving his rights by signing a waiver form. Id. at 207.
In this case, the trial court’s order states that “the interviewing officer had the Defendant read
the Miranda rights to herself and then the officer proceeded to read them out loud to the
Defendant.” The State points out that this finding by the trial court is mistaken, as both
Sergeant Murray and Sergeant Max testified that Defendant read the Miranda rights aloud.
While we agree with the State that testimony at the suppression hearing was that Defendant
read the advice of rights form aloud, the trial court as the finder of fact did not have to find
this testimony credible.

      The trial court relied primarily upon Dr. Nichols’ testimony that Defendant did not
understand her rights and that

         The only way [Defendant] could [have] come close to understanding her
         rights was if the officers painstakingly and methodically went over each
         statement in the warning, explained it to her and then had her repeat what
         they had said. And then after finishing the whole statement ask her to say,
         say the whole statement in her own words and see if she understood it and
         how it applied to her.

        The trial court also relied upon Dr. Hutson’s testimony that Defendant could not have
comprehended her Miranda rights. The trial court’s order does not, however, cite the
testimony of Dr. Nichols that, after listening to several recorded jail phone calls, he changed
his opinion to “inconclusive” because he believed that Defendant had not put forth her best
effort during his evaluation of Defendant. The State argues, therefore, that the evidence
preponderates against the trial court’s findings. We note that the record does not indicate that
the State sought clarification from the trial court or an amended order making findings that
the trial court considered and accepted or rejected Dr. Nichols’ second opinion. We conclude
that the trial court implicitly rejected Dr. Nichols’ subsequent testimony. The trial court
accepted Dr. Nichols’ initial testimony and the testimony of Dr. Hutson. In his initial
testimony, Dr. Nichols noted, as prior examiners also observed, that Defendant could have
put forth more effort in the evaluation, but he found that she was not malingering. After
having listened to Defendant’s recorded jail phone conversations, Dr. Nichols’ opinion in
that regard did not change. He did not testify that he believed Defendant was malingering.
Moreover, Dr. Nichols’ initial opinion was based on prior evaluations, reports, and
Defendant’s school records, which also did not change or cause Dr. Nichols to alter his
opinion. His opinion changed based solely on phone conversations between Defendant and
her family members from jail. The recordings of those phone calls were not presented as
evidence at the suppression hearing.




                                               -8-
        As a general rule, the trier of fact, in this case the trial court, is free to accept portions
of a witness’s testimony and reject other portions. See State v. Adams, 45 S.W.3d 46, 56
(Tenn. Crim. App. 2000). Regarding perceived inconsistencies in the evidence, we are
bound by the axiom that we do not resolve credibility issues, draw our own inferences from
the facts, or usurp the trial court’s domain by re-adjudicating factual determinations. State
v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). Our task is merely to determine whether the evidence, viewed in the light most
favorable to Defendant as the prevailing party in this case and without considering credibility
issues or factual disputes, supports the ruling of the trial court. In this case, we conclude that
the evidence does not preponderate against the trial court’s finding that Defendant could not
have voluntarily, knowingly, and intelligently waived her rights because she was
intellectually disabled.

       Accordingly, the judgment of the trial court is affirmed.

        Defendant raises a second issue on appeal. Defendant also contends that her statement
should have been suppressed based on detectives’ unreasonable and unnecessary delay in
seeking a probable cause determination. Although Defendant raised this issue in her
“Supplemental Motion to Suppress Defendant Statement,” the issue was not addressed by the
trial court in its order granting the motion to suppress Defendant’s statement. Furthermore,
the issue was not included in the State’s application for permission to file a Rule 9
interlocutory appeal or the trial court’s order granting permission to file an interlocutory
appeal. The State argues that the issue is therefore not properly before this court. We agree
with the State.

        Under Rule 9 of the Tennessee Rules of Appellate Procedure, the issues in a Rule 9
interlocutory appeal are limited to the questions that are certified by the trial court in its order
granting permission for the appeal and also certified by the appellate court in its order
granting permission for the appeal. In re Bridgestone/Firestone, 286 S.W.3d 898, 902 (Tenn.
Ct. App. 2008) (citing Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 914
(Tenn. Ct. App. 2000)). The questions on appeal are subject to a further limitation. In an
interlocutory appeal, as well as in an appeal as of right, the appellate court considers only
questions that were actually adjudicated by the trial court. In re Estate of Boykin, 295
S.W.3d 632, 636 (Tenn. Ct. App.2008) (“At the appellate level, ‘we are limited in authority
to the adjudication of issues that are presented and decided in the trial courts. . . .’”) (quoting
Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976)). To do otherwise would render the
interlocutory appeal a request for an advisory opinion. In the case at bar, the issue is asserted
in Defendant’s supplemental motion to suppress her statement, and defense counsel elicited
testimony from at least one of the officers regarding the issue at the suppression hearing.
However, from our review of the order and the hearing transcript, the trial court did not rule

                                                 -9-
on this issue. Rather, the trial court’s order contained only a determination of whether
Defendant’s statement was voluntarily given based on her inability to waive her Miranda
rights. Under these circumstances, we respectfully decline to address Defendant’s second
issue.


                                                 _________________________________
                                                 THOMAS T. WOODALL, JUDGE




                                          -10-
