        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 17, 2013

                 STATE OF TENNESSEE v. BRENT ROWDEN

               Direct Appeal from the Circuit Court for Wayne County
                         No. 15069     Robert Jones, Judge


               No. M2012-01683-CCA-R3-CD - Filed September 5, 2013


A Wayne County Jury convicted Defendant, Brent Rowden, of second-degree murder
(County One), tampering with evidence (Count Two), and attempted initiation of a process
to manufacture methamphetamine (Count Three). He received concurrent sentences of
thirty-seven years as a Range II multiple offender for second-degree murder, thirteen years
as a persistent offender for tampering with evidence, and thirteen years as a persistent
offender for attempted initiation of a process to manufacture methamphetamine. The trial
court ordered Defendant’s effective thirty-seven-year sentence to be served consecutively to
an eight-year sentence in Lawrence County. On appeal, Defendant argues that the trial court
erred in denying the motion to suppress his statements to police. After a thorough review,
we affirm the judgment of the trial court. However, the matter is remanded to the trial court
for entry of a corrected judgment in Count One to reflect Defendant’s offender status as
Multiple rather than Career.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
           Remanded for Entry of a Corrected Judgment in Count One

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, Jr. and R OBERT W. W EDEMEYER, JJ., joined.

Eric C. Davis, Dothan, Alabama, for the appellant, Brent Rowden.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Mike Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

I. Background

       Although Defendant does not challenge the sufficiency of the convicting evidence on
appeal, we will briefly review the evidence supporting Defendant’s convictions. On April 24,
2011, the body of Scott Sobey, the victim, was found floating in the Tennessee River, north
of the Pickwick Dam, in Hardin County. Law enforcement officers recovered the victim’s
body, and it was sent to Memphis for an autopsy. It was determined that the cause of death
was gunshot wounds and sharp-force injuries (cuts), and the manner of death was homicide.
The victim had two gunshot wounds to the head and one to the chest. A bullet was recovered
from the victim’s brain. The victim also had three stab wounds.

        It was eventually determined that the victim was missing from a halfway house in
Memphis and had last been seen leaving there with Defendant, who was from Lawrence
County. Chief Deputy Mike Fielder of the Hardin County Sheriff’s Office received
information that a vehicle connected with the victim’s death was at Grimes Recycling in
Lawrence County. Micheal Polk, an employee of Grimes Recycling, testified that the
company had purchased the vehicle from Defendant on April 25, 2011, for $206. Mr. Polk
testified that he obtained the title for the vehicle from Defendant, and he obtained a copy of
Defendant’s driver’s license as part of the transaction. Chief Deputy Fielder then notified the
Lawrence County Sheriff’s Office that Defendant was a person of interest in the case.
Defendant was taken into custody on April 27, 2011, at an apartment on Nixon Avenue in
Lawrence County. He was interviewed by Captain Adam Brewer, Lieutenant Nathan Neese,
and Sergeant Bud Smith of the Lawrence County Sheriff’s Office. Defendant waived his
Miranda rights and gave a statement indicating that he shot the victim on April 11, 2011,
because the victim was trying to burn him and his car with a “shake bottle” that the victim
was using to make methamphetamine. Defendant told officers that he shot the victim “two
or three times in his chest and possibly three times in the head.” He also admitted that he had
cut the victim’s throat. Defendant told officers that he loaded the victim’s body into
Defendant’s car, drove to Pickwick Boat Landing, and dumped the victim into the water.
Defendant said that he threw the gun and knife “into the swirls at the river.” He also said that
he burned his clothing on the side of the road, cut the carpet from the back of his car, and
cleaned up the blood inside the car. In the next few days, he sold his car to Grimes Recycling
on U.S. Highway 64 in Lawrence County. It was eventually determined that the offenses
occurred in Wayne County.

       Upon learning that the offenses occurred in Wayne County, Chief Deputy Fielder
contacted the Wayne County Sheriff’s office, and the information was turned over to
Detective Kenneth Martin. Detective Martin took custody of Defendant the following day,

                                              -2-
April 28, 2011. Defendant led Detective Martin to the area of Caperton Hollow Road in
Wayne County where the offenses occurred. Defendant was then taken to the Wayne County
Sheriff’s Office where he again waived his Miranda Rights and gave a statement at 3:05p.m.
Defendant admitted to shooting the victim and cutting his throat with a butcher knife because
the victim threw a bottle he was using to make methamphetamine at Defendant and
threatened to burn Defendant’s car. He reiterated to Detective Martin that he loaded the
victim’s body in his car, stopped to put gas in the car, and drove to the boat ramp at Pickwick
Dam and dumped the victim’s body in the river. Defendant told Detective Martin that he
changed clothes twice, but could not remember where he put them, and he cut the carpet
from the back of the car and tossed it into a creek. He also cleaned blood from the ceiling
light of the car and then sold it to Grimes Recycling. Defendant told Detective Martin that
he purchased the gun, which was a .380 Glock, on April 11, 2011.

       Defendant gave a second statement to Detective Martin the following day, April 29,
2011, at 10:10a.m. He told Detective Martin that after the murder, he threw the gun in the
bushes at the house on Caperton Road. Defendant admitted that he had stolen the gun from
his cousin’s residence when no one was home. He again said that he did not recall what
happened to his clothes, and he thought that he threw the knife into the river. Detective
Martin later recovered the gun from the bushes at the residence on Caperton Road. Chief
Deputy Fielder turned Defendant’s car over to Detective Martin on May 6, 2011.

       Agent Bradley Everette of the Tennessee Bureau of Investigation (TBI), an expert in
DNA identification, testified that he searched Defendant’s vehicle looking for any DNA
profiles inside the car. He found human blood stains in the hatchback area of the car that
were later determined to be from the victim.

       Suppression Hearing

       Captain Adam Brewer of the Lawrence County Sheriff’s Department testified that he
and Sergeant Bud Smith interviewed Defendant on April 27, 2011, regarding the
disappearance and death of the victim, Scott Sobey, who was from Lawrence County.
Captain Brewer had previously been contacted by the Hardin County Sheriff’s Department,
who said that they had found the victim’s body. Captain Brewer learned that Defendant was
one of the last people to have seen the victim alive. He found Defendant on April 27, 2011,
at the Nixon Apartments and arrested him pursuant to a violation of probation warrant.

       Captain Brewer testified that the interview took place at the Lawrence County
Sheriff’s Office in the interview room. He “Mirandized” Defendant and initially indicated
that they were looking into the victim’s case as that of a missing person and asked if
Defendant could help find the victim. Captain Brewer testified that Defendant agreed to talk

                                              -3-
and signed a waiver of his Miranda rights at 7:22 p.m. on April 27, 2011. Defendant began
answering questions concerning his knowledge of the victim’s disappearance. Captain
Brewer testified that Defendant “was kind of scattered with answering his questions at first,
so we kind of let him get his thoughts together.”

       Captain Brewer testified that Lieutenant Nathan Neese also attended the interview
which lasted “nearly three hours, off and on, with the three of use being in there.” When
asked if Defendant’s statement was reduced to writing, Captain Brewer testified:

       No. When we got to the point where we began talking about that we had
       found Mr. Sobey and that it became not a missing person’s case anymore, we
       actually knew where he was at and that he was dead, he began talking to us,
       and at that point decided he needed to talk to an attorney before we were able
       to write anything down.

Captain Brewer testified that the interview was immediately terminated, and no further
questions were asked of Defendant. He said, “[Defendant] actually tried to make more
statements as he left, and we advised him that he had invoked his right and that he needed
an attorney present before we could talk anymore.”

      Later that evening, Captain Brewer was contacted by corrections officer Blaine Bates
who indicated that Defendant wanted to speak with investigators again. Officer Bates
brought Defendant to the interview room a second time, and Captain Brewer, Lieutenant
Neese, and Sergeant Smith were again present. Captain Brewer testified:

       We advised him again that he had invoked his right and asked him if he
       wanted to withdraw that and still talk to us. He said he did. We read Miranda
       to him again, explained to him, you know, that if he wanted to continue to
       invoke his right to an attorney, that that was fine.

       He wanted to - - he made the statement that, “The medical examiner said that
       he was shot more than once, is it going to be - - will that hurt my self-defense
       claim?”

       We continued to say, “We can’t talk to you about that till you understand your
       rights and you let us know that you don’t want to talk to an attorney.”

       So at that point he was read his rights again. He did sign a statement saying
       he did not want an attorney, he wanted to talk to us about it, and that’s when
       we continued with the interview.

                                             -4-
The second waiver of rights form was signed at 11:11p.m. on April 27, 2011. Captain
Brewer testified that there was also a handwritten note that Defendant signed indicating that
he wished to recant his previously invoked right to an attorney and talk to the officers.

        Captain Brewer testified that Defendant then gave a written statement that contained
the following, as written out by Lieutenant Neese:

       On Friday, April 9, 2011, I went to Memphis to pick up Scott Sobey at a
       halfway house. We brought Scott to Eric Short’s house in Iron City. Scott and
       Eric were cellees in prison, and that’s where we all met. Me and Scott used
       dope together over the weekend.

       Scott started talking about being a hitman and how he has killed little girls, it
       was hard to hear them scream. Scott kept talking about how many people he
       had killed.

       On Monday, April 11, 2011, I went back to Eric Short’s to pick up Scott and
       drive him back to Memphis. Before I went and picked him up, I stopped and
       got a piece (a .380 handgun) because I was afraid of what Scott was going to
       do to me. I picked Scott up, and we went out to a house trailer where there are
       some junk cars. It’s off a road past Turner Willims’ old store on Holly Creek
       in Wayne County.

       Me and Scott were cooking dope, and Scott started trying to hit me and burn
       me and my car with the shake bottle. I was at the car kind of behind it, and I
       took out the .380 and shot Scott in the chest. I realized he was still alive, so
       I shot him in the head. I think I shot him two or three times in his chest and
       probably three times in the head. I could see he was still breathing and still
       alive, so I got a butcher knife that I had in my car and cut Scott’s throat.

       It took me a little bit, but I was able to get his body, Scott’s body, loaded into
       the car. I then drove to Pickwick Boat Landing, where I backed up to the boat
       ramp. I knew I was close to the water because I could hear the muffler
       bubbling in the water. I opened the hatch, rolled his body into the water.

       I left there and threw the gun and knife into the [swirls] at the river. I stopped
       on the side of the road and burned my clothes. I cut the carpet out of the back
       of my car and cleaned up the blood out of the back of my car.




                                              -5-
       I then went to my cousin’s house on Depot Street in Collinwood and slept. In
       the next few days, I sold my car to Grimes Recycling on U.S. Highway 64 in
       Lawrence County.

        Captain Brewer testified that he asked Defendant if there was anything that he wanted
to add or take away from the statement. Defendant replied: “I just want to clarify that I
dropped Scott off at the house trailer with the junk cars, and I left to get some batteries before
cooking dope. That’s when I stopped and got the piece (.380 handgun).” Captain Brewer
testified that Defendant signed and dated the statement. Based upon Defendant’s statement,
it was ascertained that the victim’s murder occurred in Wayne County and Detective Kenneth
Martin of the Wayne County Sheriff’s Department was contacted about taking over the
investigation.

      On cross-examination, Captain Brewer testified that Defendant was at Amy Gatlin’s
apartment when he was picked up for the probation violation warrant. He said:

       We received information that he could be possibly staying there from a contact
       of his mother’s. We were able to do surveillance on the apartment complex
       from the Walgreens parking lot and CVS parking lot from up the street. We
       had observed a subject come out in the yard matching his description several
       times looking around. Myself and Lieutenant Neese at that point came down
       Nixon Avenue, and I observed Brent Rowden standing in the front yard with
       a baseball bat.

Captain Brewer testified that Defendant was arrested in the front yard of the apartment
complex and carried back up to the porch of Ms. Gatlin’s apartment. Captain Brewer walked
inside the apartment and observed “some marijuana paraphernalia or maybe a Coke can
where they had been smoking drugs off the top of it.” There was also some burnt foil.
Captain Brewer testified that his investigation revealed that Defendant was a user of
methamphetamine. A search of Ms. Gatlin’s apartment did not reveal the presence of
methamphetamine.

        Captain Brewer testified that in his experience, a person on methamphetamine may
be overly paranoid. He admitted that Defendant’s behavior prior to his arrest was indicative
of someone who was paranoid. He further admitted that when Defendant was taken into
custody, he “exhibited signs of a meth user: paranoid, somewhat irritable.” Captain Brewer
testified that when they approached Defendant, he raised the baseball bat, and he said that
“he thought he was looking at Detective Mills down the street.” Captain Brewer explained
that Detective Mills was a drug agent with the Lawrence County Sheriff’s Department.



                                               -6-
When asked if he felt that Defendant had been actively using methamphetamine at the time,
Captain Brewer testified:

       From my experience dealing with methamphetamine addicts - - and I was
       assigned to narcotics for over five years - - once somebody is using that drug
       and they become a user, it’s hard to tell if they’re actually under the influence
       or - - it just has a permanent effect on their behavior and the way they act, so
       it’s hard for me to determine whether or not they’ve actually smoked any. I
       can just kind of determine they are a user.

Captain Brewer felt that Defendant would have exhibited the same paranoia whether he
waited two weeks or a month to interview Defendant. He said, “Once they get that - - exhibit
that type of behavior, in my experience they typically stick with that, so I felt like it was as
good a time as any to go ahead and talk to him.”

        On redirect examination, Captain Brewer testified that there was never any concern
that Defendant did not understand his rights or that he was intoxicated to the point that he did
not understand what he was saying. He acknowledged that Defendant gave specific details
in his statement, and Defendant invoked his right to an attorney at one point. Captain Brewer
testified that if he had seen signs of intoxication to the point of impairing Defendant, he
would have stopped the interview.

       Detective Kenneth Martin of the Wayne County Sheriff’s Department testified that
he traveled to Lawrence County on April 28, 2011, to pick up Defendant and transport him
to Wayne County. He and Detective Cameron McDonald interviewed Defendant in the
investigator’s office. Detective Martin read Defendant his Miranda rights, and Defendant
signed a waiver. The interview with Defendant resulted in a typed statement which
Defendant acknowledged and signed. Detective Martin testified that Defendant read the
statement before signing it, and the statement was read to him. The statement contained the
following:

       I picked up Scott Sobey at a halfway house in Memphis on Friday, April 8,
       2011, and took him to Eric Short’s house in Iron City. On Monday, April 11,
       2011, I picked up Scott Sobey at Eric Short’s house in Iron City, and we went
       to Ricky McCrary’s house on Caperton Hollow Road.

       I left and went to the Dollar Store in Collinwood to get lithium batteries.
       When I returned from the Dollar Store, Scott Sobey was in the process of
       making meth. When I walked up to Scott Sobey, he was in the shed behind the
       house, and he threw the bottle at me. I went up the bank, and Scott went in

                                              -7-
       front of the car and said he was going to burn the car, and that is when I shot
       Scott in the chest or stomach.

       I walked back down the bank, and he was still alive, and I shot Scott Sobey in
       the head. I shot him about five times, and he was still alive and he was
       breathing shallow, and that is when I cut his throat with a butcher knife.

       I stood around for a while, and then I loaded Scott in the hatchback. I like to
       have never got him loaded in the hatchback, [. . .]

       I then drove to Little Cincy’s [sic ] and got gas and went to Pickwick, where
       the motel and boat ramp is located, and I put Scott in the river. I’m not going
       to say what I did with the knife and gun. I just got read [sic] of them, [. . . ]

       I changed clothes twice because I had got wet, and don’t remember what I did
       with the clothes.

       Defendant told Detective Martin that the gun was a .380 Glock, and he sold the car
at “Grimes Scrapyard.” He claimed that he purchased the gun on April 11, 2011, when he
went to buy the lithium batteries. Defendant told Detective Martin that no one was with him
when the murder took place at Mr. McCrary’s house. After he disposed of the victim’s body,
Defendant said that he cut the carpet from the back of his car and cleaned blood from the
ceiling near the light. He said, “I was trying to cover it up and get rid of it, anything.”
Defendant told Detective Martin that he threw the carpet in a creek. When asked why he
thought Defendant was going to kill him, Defendant said that the victim told him “he was a
hitman and enforcer and he had killed 36 people.”

        Detective Martin conducted a second interview with Defendant the following day on
April 29, 2011, to clarify some issues. Defendant again waived his Miranda rights and
agreed to talk. During the second interview, Defendant said that he threw the gun in some
bushes at Mr. McCrary’s house. He admitted that he had stolen the gun from his cousin,
Charles Pulley. He said that he took the gun from Mr. Pulley’s house when no one else was
at the home. Defendant did not know what happened to his clothes but said that he threw the
knife into the river. Defendant was later taken back to Mr. McCrary’s house, and the gun
was recovered from the property.

       On cross-examination, Detective Martin testified that he “Mirandized” Defendant
when he got into the car before leaving Lawrenceburg. They proceeded to Mr. McCrary’s
residence on Caperton Hollow Road near the Lawrence-Wayne County line. Defendant then
showed Detective Martin and others where he shot the victim. At that time, Defendant did

                                              -8-
not mention anything about the gun being in the bushes. Detective Martin testified that
Defendant was not behaving unusually when he picked Defendant up in Lawrence County.
He did not notice Defendant being agitated or paranoid. Detective Martin did not observe
anything that indicated that Defendant could not intelligently waive his rights and give a
statement. Defendant did not have any difficulty answering questions.

       Defendant testified that at the time of his arrest on April 27, 2011, he was under the
influence of illegal drugs. He said:

       When they arrested me, I mean, I was so high, you know what I mean, that, I
       mean, I was just zonked. I was just real high, was shooting it into my arm, you
       know, and you get higher that way than you do when you smoke it.

       They said they didn’t have no evidence, no drugs up there. They come and
       asked me to search the apartment, and they found the bottom of a can that had
       residue on it because I told them it was in there. And they said if that’s all that
       was in there, they wasn’t worried about it. I said they could go up there, and
       they went up there and got it.

       All I’m saying is I was shooting it, and there’s a lot of difference when you
       shoot drugs than when you smoke it.

        Defendant testified that he had been using methamphetamine on and off for
approximately seven years, and he was addicted to it. He said that he would lose track of
time whenever he had been awake for so long. Defendant testified that at the time of the
victim’s murder, he had been awake for three to four days, and the victim had been awake
for fourteen days. Defendant did not know how many days that he had been awake at the
time of his arrest. He said that he had shot methamphetamine into his veins approximately
one hour before police arrived. He did not believe that he was in a condition to make
intelligent and rational choices at the time.

       Defendant testified that he was under the influence of methamphetamine when he
gave both statements at the Lawrence County Sheriff’s Department. He acknowledged
signing the waiver of rights form. However, he claimed that he was expecting his lawyer to
be there when he went back for the second interview. Defendant claimed that he decided to
give a statement because the investigators had pizza and a Dr. Pepper for him, and he was
“starving.”

       On cross-examination, Defendant testified that he had been using drugs throughout
the night before his arrest. He acknowledged that he could remember the officers coming

                                               -9-
to arrest him, and he remembered them talking to him about drugs in the apartment. He
admitted that he understood what they were talking about. Defendant said, “They wasn’t
asking me about nothing but the probation violation.”

       Defendant testified that after he arrived at the Lawrence County Jail and went into the
interview room, he remembered a piece of paper, but thought that his attorney was coming.
He agreed that the statement read by Captain Brewer during the suppression hearing was
“very close to what happened.” Defendant admitted that he remembered what happened
when the victim died, and he accurately told Captain Brewer what happened that night.
Defendant testified that he somewhat understood his Miranda rights, and he acknowledged
that he had been arrested many times in the past, although not for murder, and had been
advised of his rights. However, he said, “Not that kind of pressure, though. It was
different.”

        Defendant testified that he remembered that after he asked for his attorney, the
interview stopped, and he was taken back to his cell. He admitted tapping on the glass and
telling Officer Bates that he wanted to speak with investigators again. Defendant agreed that
he was again advised of his Miranda rights, which he waived, and he gave a statement
because he was “starving,” and the officers had pizza and a Dr. Pepper. He claimed that the
“paper” and the pizza were “all a package.” Defendant ultimately testified that he knew what
he was saying to Captain Brewer, and he understood his Miranda rights because he invoked
his right to an attorney.

        Defendant testified that he voluntarily went to the scene with Detective Martin, and
he told Detective Martin his version of events. However, he claimed that Detective Martin
“got it all mixed up.” Defendant agreed that Detective Martin advised him of his Miranda
rights, and he signed a waiver. He spoke with Detective Martin a second time the following
day.

II. Analysis

A. Denial of Motion to Suppress

        From a review of Defendant’s brief, he appears to contend that the trial court erred
in failing to grant his motion to suppress the statement he gave to the Lawrenceburg officers
on April 27, 2011. He contends that his statement to investigators was not “knowingly or
intelligently” given because he was under the influence of drugs at the time. Defendant
further complains that his statement was not audio or video recorded and that investigators
failed to determine how well he could read or what grade he completed in school.



                                             -10-
        “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We
review a trial court’s applications of law to the facts de novo, however. See State v. Walton,
41 S.W.3d 75, 81 (Tenn. 2001). The party prevailing at the suppression hearing is further
“entitled to the strongest legitimate view of the evidence adduced at the suppression hearing
as well as all reasonable and legitimate inferences that may be drawn from that evidence.”
Odom, 928 S.W.2d at 23.

         The Fifth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court concluded that in the context
of “custodial interrogation” certain procedural safeguards are necessary to safeguard this
privilege against compulsory self-incrimination. Id. at 444, 86 S.Ct. 1602. More
specifically, the Court held that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless
it demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination.” Id. Those safeguards include the now familiar Miranda warnings—namely,
that the suspect be informed “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, 86 S.Ct. 1602. If the police fail to provide these warnings, any
statement obtained as a result of custodial interrogation will not be admissible at trial during
the prosecution’s case-in-chief, even if the statement is otherwise voluntary. The Miranda
Court was concerned that the “interrogation environment” created by interrogation and
custody would “subjugate the individual to the will of his examiner” so as to undermine the
privilege against compulsory self-incrimination. Id. at 457-58, 86 S.Ct. 1602. In Dickerson
v. United States, the United States Supreme Court reaffirmed that “Miranda and its progeny
. . . govern the admissibility of statements made during custodial interrogation in both state
and federal courts.” 530 U.S. 428, 432, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); see also
State v. Walton, 41 S.W .3d 75, 82 (Tenn. 2001). Consequently, if the defendant’s statement
resulted from custodial interrogation, the statement must be excluded from evidence if the
police failed to provide the defendant Miranda warnings. Oregon v. Elstad, 470 U.S. 298,
307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Walton, 41 S.W.3d at 86.

       Miranda 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.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602.
Thereafter, the United States Supreme Court has explained that “interrogation” refers not
only to express questioning but also to any words, actions, or practices that the police should

                                              -11-
know are reasonably likely to elicit incriminating information from a suspect. Rhode Island
v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also Walton, 41
S.W.3d at 85.

       The Tennessee Supreme Court has held that “[a] valid waiver of Miranda rights
remains valid unless the circumstances change so seriously that the suspect’s answers to
interrogation are no longer voluntary or unless the suspect is no longer making a knowing
and intelligent waiver of his rights.” State v. Rogers, 188 S.W.3d 593, 606 (Tenn.
2006)(citing Wyrick v. Fields, 459 U.S. 42, 47, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982)).
Furthermore, “[c]ourts must examine the totality of the circumstances to determine whether
renewed warnings are required.” Id.

       The factors to be considered when assessing the totality of the circumstances
       include: 1) the amount of time that has passed since the waiver; 2) any change
       in the identity of the interrogator, the location of the interview, or the subject
       matter of the questioning; 3) any official reminder of the prior advisement; 4)
       the suspect’s sophistication or past experience with law enforcement; and 5)
       any indicia that the suspect subjectively understands and waives his rights.
       Because of the infinite variety of circumstances a case may present, the list of
       factors is by no means exhaustive. The weight to be accorded different factors
       will vary depending on the particular facts of the case.

Rogers, 188 S.W.3d at 606 (internal citations omitted).

       Concerning this issue, the trial court made the following findings:

       Most of the time where similar issues arise, the warnings are given, the request
       for the attorney is made, and maybe the defendant is in custody for a longer
       period of time than we have in today’s case, and there’s a second interview at
       the defendant’s request without new warnings.

       But it looks to me like in this case, the government had crossed T’s and dotted
       I’s every time they had a chance to do so and have complied with the letter and
       the spirit of Miranda v. Arizona and its [progeny].

       Specifically, the preponderance of the evidence today establishes that
       [Defendant] may have shown the signs of being a methamphetamine user. I’m
       not sure that he even testified about the substance he was using. He said he
       was shooting drugs, but I don’t think he testified about what drugs.



                                              -12-
But all the questions were asked and answered with regard to or by the officers
about methamphetamine, which I understand generally to be an upper to make
someone more alert, and certainly not a suppressant.

The risk, it seems to me, would be that when a person is coming off of several
days on methamphetamine, without any rest, that he may be particularly
vulnerable to fatigue and other issues that might have some effect upon his
understanding or his voluntary waiving of his rights.

I’m not necessarily accrediting what [Defendant] said about [sic] he had just
shot some drug and the effect it may have had on him, but there was nothing
to indicate from the overall testimony, that he was impaired, as a typical drunk
might be impaired.

Instead, if anything, he was alert, hungry, and understood not only his rights,
but actually understood them enough to exercise them and to decline to talk
further during that first interview without actually having an attorney present.

The officers were cautious in making it clear to him as he went back with the
correction officer toward his cell that they couldn’t talk to him once he made
that request.

And then he made a very express waiver of the right to have an attorney
present before the second interview took place and the multi-page statement
that largely amounts to the confession.

There may be some definite issues raised in that it may not be a pure
confession, but it’s at least an admission against interests that the Court finds
today is admissible.

With regard to the statement obtained by Investigator Martin with the Wayne
County Sheriff’s Department, [Defendant] had the benefit of additional
Miranda warnings about his rights to remain silent and have a lawyer before
he answered any questions, and that first warning to him by Mr. Martin on
April 29 at approximately 10:00 a.m. was a good 15 or so hours after the 7:00
p.m. warning the night before, certainly more than 15 hours after his arrest - -
-actually, no, that’s the 29 th .

*      *      *



                                      -13-
       I’m looking at two different ones. The 28 th one was at 3:05 p.m. and about 20
       hours after his arrest. And then the last statement from the fourth interview
       was on April 29 at 10:00 a.m. about 39 hours after the arrest.

       And the responses of [Defendant] to the warnings, his waiver of his rights, and
       the statements given seem to be consistent with the earlier statements given to
       the Lawrence County officers on the night of April 27.

       Therefore, the State has carried its burden of showing that [Defendant] was
       advised of his rights, understood those rights, and voluntarily waived those
       rights, with extra care being taken by the officers after his first request for an
       attorney to make sure that he was expressly waiving those.

       I think the appellate judges that would be reviewing this record would
       understand that between 7:30 and 11:00 p.m., that the officers themselves
       cannot appoint or obtain a lawyer for the accused, that essentially, the accused
       just quits talking any until he’s taken before a magistrate or a judge, at which
       time an attorney may be appointed if he’s indigent and qualifies for an
       appointed counsel.

       In any event, the questioning must stop and the officers must not do anything
       to interrogate by questions, gestures, or other means, once he’s indicated that
       interest in having an attorney.

       The officers did nothing wrong in not having an attorney present, and the
       defendant, as I say, expressly waived his rights and reinitiated the interview
       process.

       And he still seems to be clear here today he thought he was serving society by
       ridding it of a bad person, and I assume he’s not had any drugs since on or
       before April 27 of 2011 because he appears to have been in custody
       continuously since that time.

        We agree with the trial court. Evidence presented at the suppression hearing
established that although Defendant may have been a methamphetamine user at the time of
his statement, his statement to police was freely and voluntarily made. When Captain Brewer
was asked if he felt that Defendant had been actively using methamphetamine at the time of
his statement, Captain Brewer testified:




                                              -14-
       From my experience dealing with methamphetamine addicts - - and I was
       assigned to narcotics for over five years - - once somebody is using that drug
       and they become a user, it’s hard to tell if they’re actually under the influence
       or - - it just has a permanent effect on their behavior and the way they act, so
       it’s hard for me to determine whether or not they’ve actually smoked any. I
       can just kind of determine they are a user.

Captain Brewer felt that Defendant would have exhibited the same signs of a
methamphetamine use, such as paranoia and irritability, whether he waited two weeks or a
month to interview Defendant. He said, “Once they get that - - exhibit that type of behavior,
in my experience they typically stick with that, so I felt like it was as good a time as any to
go ahead and talk to him.”

        Captain Brewer testified that there was never any concern that Defendant did not
understand his rights or that he was intoxicated to the point that he did not understand what
he was saying. He acknowledged that Defendant gave specific details in his statement, and
Defendant invoked his right to an attorney at one point. Captain Brewer testified that if he
had seen signs of intoxication to the point of impairing Defendant, he would have stopped
the interview. We also note that at one point, Captain Brewer asked Defendant if there was
anything that he wanted to add or take away from his statement. Defendant replied: “I just
want to clarify that I dropped Scott off at the house trailer with the junk cars, and I left to get
some batteries before cooking dope. That’s when I stopped and got the piece (.380
handgun).”

        Defendant’s own testimony at the suppression hearing demonstrates that his statement
was freely and voluntarily given. He remembered officers coming to arrest him, and he
understood what they were talking about. Defendant agreed that the statement given to
Captain Brewer on April 27, 2011, was “very close to what happened.” He admitted that he
remembered what happened when the victim died, and he accurately told Captain Brewer
what happened that night. Defendant testified that he had been arrested many times in the
past and had been advised of his rights. He admitted at the suppression hearing that he
somewhat understood his Miranda rights. Defendant ultimately testified that he knew what
he was saying to Captain Brewer, and he understood his Miranda rights because he invoked
his right to an attorney.

       Defendant also briefly mentions that his statement was not audio or video recorded
and that investigators failed to determine how well he could read or what grade he completed
in school. However, Defendant has waived these issues for failing to raise them in his
motion to suppress or present any evidence at the suppression hearing concerning the issues.
Tenn. R. Crim. P. 12(b)(3); Tenn. R. Crim. P. 12(f); and Tenn. R. App. P. 36(a). Even if not

                                               -15-
waived, these issues are without merit. The Tennessee Supreme Court has ruled that “neither
the state nor the federal constitution requires electronic recording of interrogations.” State
v. Godsey, 60 S.W.3d 759, 771 (Tenn. 2001). Moreover, Defendant does not attempt to
argue in his brief how his ability to read or the last grade he completed in school affected the
admissibility of his statement.

        Based on our review of the totality of the circumstances surrounding the giving of
Defendant’s statement, we conclude that the evidence does not preponderate against the trial
court’s finding that admission of Defendant’s statement did not violate Fifth Amendment
principles. The trial court properly denied Defendant’s motion to suppress, and Defendant
is not entitled to relief on this issue.

B. Sentencing Error

        Although not raised by either party, the judgment form in Count One, reflecting
Defendant’s conviction for second-degree murder, a Class A felony, incorrectly indicates that
Defendant is a Career offender. However, the transcript of the sentencing hearing reflects
that Defendant was actually sentenced as a Range II Multiple offender for that offense.
When there is a conflict between the transcript and the judgment form, the transcript controls.
See, e.g. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Jimmy Lee
Cullop, Jr., No. E2000-00095-CCA-R3-CD, 2001 WL 378543, at *6)(Tenn. Crim. App.,
April 17, 2001); and State v. Donald Edward Lynch, No. E2008-01435-CCA-R3-CD, 2009
WL 2588904, at *8 (Tenn. Crim. App. Aug. 24, 2009). The evidence presented at the
sentencing hearing reflected that Defendant had three prior convictions for Class C felonies,
and all parties agreed that Defendant was a Multiple offender. See Tenn. Code Ann. § 40-35-
106(a)(1). Therefore, we remand to the trial court for correction of the judgment in Count
One in accordance with this opinion.

       For the foregoing reasons, the judgment of the trial court is affirmed. However, the
matter is remanded to the trial court for entry of a corrected judgment in Count One to reflect
Defendant’s offender status as Multiple rather than Career.


                                                     ___________________________________
                                                     THOMAS T. WOODALL, JUDGE




                                              -16-
