            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

              STATE OF TENNESSEE v. CHARLES RAY POWELL

                Direct Appeal from the Circuit Court for Franklin County
         No. 01C01-9806-CC-00260 Honorable Thomas W. Graham, Trial Judge



                    No. M1998-00757-CCA-R3-CD - Decided May 12, 2000
                                       No 10667

The defendant, after a jury trial, was convicted of first degree murder and sentenced to life. The
evidence is sufficient to support the conviction. The trial court did not err in refusing to charge the
jury on post-traumatic stress disorder. The self-incriminating statements of the defendant were
admissible. The judgment of the trial court is affirmed.

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

WILLIAMS, J. delivered the opinion of the court, in which TIPTON and WITT, JJ. joined.

Jack B. Lowery, Lebanon, Tennessee, and Peter Strianse, Nashville, Tennessee, for the appellant,
Charles Ray Powell.

Paul G. Summers, Attorney General and Reporter, Marvin E. Clements, Jr., Assistant Attorney
General, James Michael Taylor, District Attorney General, and Steven M. Blount, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant, Charles Ray Powell, appeals from his Franklin County jury conviction of first
degree murder, a class A felony. The defendant was sentenced to life in the Department of
Correction. In this appeal, the defendant argues that:
        (1) Insufficient evidence exists to support a conviction of first degree murder;
        (2) the trial court erred in allowing into evidence the involuntary statements of the
             defendant; and
        (3) the trial court erred in refusing to charge the jury on post-traumatic stress
             disorder.
After careful review of the briefs, the record, and the applicable law, we affirm the judgment of the
trial court.
                                          BACKGROUND

        The defendant was convicted of shooting and killing Roger Parker, a neighbor in a rural area
of Franklin County. This offense occurred on March 17, 1995, prior to the July 1995 amendment
to the first degree murder statute.

                                       The Pretrial Hearing

       On October 29, 1996, the trial court conducted a hearing on the defendant’s motion to
suppress various evidence, including two oral statements from the crime scene and a tape-recorded
statement given at the police department. Several witnesses testified for the state regarding the arrest
and investigation.

         The testimony established that officers from various agencies responded to a mutual aid radio
request regarding a shooting at the victim’s residence. Decherd Police Officer Tommy Brazelton1
testified that he was the first officer on the scene. When the defendant appeared from behind a tree,
Brazelton said that he drew a weapon on the defendant and ordered him to raise his hands and to
approach Brazelton’s position. The defendant complied and told Brazelton that he had killed Parker.
The defendant walked under his own power and, despite somewhat slurred speech, appeared neither
disoriented nor confused. Franklin County Deputy Ken Elliott handcuffed the defendant, and the
officers secured him in a patrol car.

        Brazelton retrieved a rifle from the general area where he saw the defendant and then entered
the Parker residence with Decherd Police Chief David Throneberry. On leaving the residence, he
first saw Franklin County Deputy Robert Campbell at the scene. Also, Brazelton said that
Throneberry advised the defendant of his rights after the officers exited the residence.

        Approximately ten minutes after Brazelton observed Franklin County Investigator Keith
Henshaw speaking with the defendant, the defendant partially escaped from his restraints and began
striking the window of the patrol car. An officer on the scene “maced” the defendant,2 who was
resecured before transport from the scene.

      Throneberry testified that when he arrived on the scene Brazelton and Elliott were
handcuffing the defendant. The defendant recognized Throneberry and told him that he did not




       1
          Brazelton apparently worked for the Winchester Police Department on the hearing date.
In this opinion, however, all officers will be identified by their respective departments on the date
of the offense.
       2
           “Maced” refers to a person’s being sprayed with a chemical irritant.

                                                  -2-
belong there.3 After the defendant was secured in a patrol car, Throneberry advised him of his
Miranda rights and then assisted in securing the Parker residence. Like Brazelton, Throneberry did
not see Deputy Campbell until he left the house.

       Campbell testified that he arrived on the scene and saw the defendant, covered with blood,
standing with Brazelton beside a patrol car. He did not recall if the defendant was handcuffed, and
he approached the defendant and asked what happened. The defendant replied that he had shot the
victim. Campbell said, “Who?,” and the defendant responded, “Roger Parker.” Campbell said that
when he arrived on the scene he only knew that a shooting at the victim’s residence, involving the
defendant, had been reported. He also testified that he arrived on the scene before Henshaw.

        Henshaw testified that he advised the defendant, secured in the rear passenger compartment
of a patrol car, of his Miranda rights. After the defendant acknowledged his understanding of the
warning, he told Henshaw that he struck the victim with his rifle and then killed him because the
victim had “been messing” with him.

        Henshaw said that the defendant spoke clearly during their dialogue in the patrol car. He did
not know if the defendant was drunk, but “he seemed to be pretty upset and pretty verbal as far as
talking about it.”

        Tennessee Bureau of Investigation Special Agent Larry Davis testified that he interviewed
the defendant after transport to the Franklin County jail and recorded a statement from him. Davis
said that the defendant was upset and very angry with the officer who maced him. The defendant
did not know Davis personally but told him that he knew who he was and that he hunted with his
brother.4

        The defendant also testified at the hearing. He said that he served in the Vietnam conflict
and was drawing one hundred percent total permanent disability from the service. He also said that
he had been a regular patient at the Veteran’s Hospital in Murfreesboro, Tennessee for at least
nineteen years. He denied giving any statement to Davis or even seeing him at the jail. He recalled
neither speaking with Brazelton nor speaking with, or even seeing, Campbell at the scene. He only
remembered his eyes burning from mace while being driven from the Parker residence and his
realizing that he was in jail after approximately one and one-half months in custody.

       The defendant’s argument at the hearing relied on inconsistencies in accounts of the crime
scene: If Brazelton accurately testified that Throneberry gave Miranda warnings after they exited
the house and the defendant was secured in the car, then Campbell likely questioned the defendant,


       3
          Apparently, this statement referred to the defendant’s belief that Throneberry was outside
his jurisdiction.
       4
          Special Agent Davis testified that the defendant was correct: Davis’ brother had hunted
with the defendant.

                                                -3-
who was outside the patrol car, before he was advised of his Miranda rights. The trial court found
that the testimony sufficiently established that the defendant received Miranda warnings before
giving anything other than voluntary and spontaneous statements. The trial court further concluded
that any issue was essentially one of credibility, regarding contradictory versions of the proceedings
at the scene, and was a jury question. Further, the trial court accredited testimony that the defendant
was not so intoxicated as to have involuntarily waived his rights. The trial court stated that it would
review the taped statement, as requested by the defendant, for proof of the defendant’s intoxicated
state. That court denied the defendant’s motion to suppress the statements.

                                              The Trial

       The trial began October 30, 1996. The state did not enter the recorded statement, and the trial
court advised the parties that it had reviewed the tape and would not suppress the oral statements.

        The victim’s eight-year old son testified that he answered a knock at the door on the morning
of March 17, 1995. The defendant, holding a gun behind his back, asked for the father and told the
son to go upstairs. The son heard arguing and then gun shots. The son began to pray as he heard his
father scream and moan. He testified that he picked up the phone to call 911 but stopped when he
heard the defendant say he would call 911. He then overheard the defendant say, “Let me take my
knife and cut his heart out.”

        As the son fled the house, he saw the defendant sitting on the sofa in the living room. His
father was motionless on the floor, lying on his side in a pool of blood in front of the defendant. The
son saw no weapon around his father. In socked feet, the son jumped off the deck and ran through
the woods to a gravel road. He ran a long way down the mountain on the gravel road before flagging
down Roger Hammond, a neighbor.

         Mr. Hammond and the son returned to the home where Mr. Hammond encountered the
defendant. Mr. Hammond asked, “What is going on?” The defendant responded, “What’s going on?
I just killed Parker.” Mr. Hammond saw so much blood that he knew that he could not help the
victim. When the defendant started walking towards him, Mr. Hammond retreated to his truck. Mr.
Hammond took the son to a neighbor’s house, where he tended to sores on the child’s feet and
called the victim’s wife.

        Michael Gibson, acquainted with the defendant, testified that the defendant knew he was
interested in locating and purchasing a certain type of rifle. On the day of the homicide, the
defendant advised Gibson where such a weapon could be purchased and accompanied him to
purchase it. That same day, the weapon, used by the defendant to slay Parker, disappeared from
Gibson’s residence.

         Officers essentially reiterated their preliminary hearing testimony. However, Campbell
testified that he did not remember if the defendant was in the patrol car or not when he asked him
what had happened. Further, officers testified that the deceased was found on his back with a semi-


                                                 -4-
automatic weapon across his torso, with a finger in the triggerguard.

         Also, Wayne Sanders, a Tennessee Wildlife Resource Agency officer absent from the
hearing, testified that he arrived on the scene and assisted in securing the subject. At the scene, the
defendant, covered in blood, recognized him and told him he respected him and his work and that
Sanders did not need his weapon. The defendant then told him he killed the victim. Sanders
testified that the defendant was not behaving abnormally. The defendant also claimed that he had
been shot, but officers found no gunshot wound.

       Medical expert testimony opined that the defendant suffered from alcohol dependency,
Valium dependency, and the symptoms of post-traumatic stress disorder. One witness, Dr. Rodeya
Farooque, did not believe that the defendant was insane at the time of the homicide but believed him
incapable of forming the intent requisite for first degree murder.

                                             ANALYSIS

                            Admission of the Defendant’s Statements

        The defendant alleges the trial court violated his constitutional rights against self-
incrimination by allowing certain of his statements into evidence. The defendant alleges that he gave
three statements to officers of the Franklin County Sheriff’s Department:
        (1) An oral statement to Sheriff’s Deputy Robert Campbell;
        (2) an oral statement to Sheriff’s Investigator Keith Henshaw; and
        (3) a taped recorded statement at the police station.
After a suppression hearing, the trial court refused to suppress the two oral statements.

        Under the Fifth and Fourteenth Amendments of the United States Constitution, statements
taken by an officer from a defendant during custodial interrogation are inadmissible as evidence
against that defendant “unless certain warnings are given to protect a person’s privilege against self-
incrimination.” Miranda v. Arizona, 86 S. Ct. 1602, 1612 (1966). Custodial interrogation is
“questioning initiated by law enforcement officers after a person has been taken into custody and
otherwise deprived of his freedom of action in any significant way.” Id. at 1612; State v. Smith, 868
S.W.2d 561, 570 (Tenn. 1993); State v. Cooper, 912 S.W.2d 756 (Tenn. Crim. App. 1995). Further,
the Tennessee Supreme Court has interpreted Article 1, § 9 of the Tennessee Constitution as securing
a higher degree of protection against self-incrimination than guaranteed by the Fifth Amendment of
the United States Constitution through Miranda warnings.5 See State v. Crump, 834 S.W.2d 265,
268 (Tenn. 1992).

        The defendant contends not only that the first statement was given absent a Miranda warning
but also that this statement “tainted” his second oral statement and thereby precluded its admissibility

       5
         That provision states “[t]hat in all criminal prosecutions, the accused . . . shall not be
compelled to give evidence against himself.”

                                                  -5-
against him. In State v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992), the Tennessee Supreme Court
recognized that earlier statements, given absent Miranda warnings, could weigh upon the defendant’s
mind and substantially contribute to his or her involuntarily waiving the rights after proper admission
of Miranda on a subsequent interview. Id. at 919. Therefore, that Court held that under the extra
protections of the Tennessee Constitution, “extraction of an illegal, unwarranted confession from
a defendant rates as a rebuttable presumption that a subsequent confession, even if preceded by
proper Miranda warnings is tainted by the initial illegality.” Id. (emphasis in original).

        Therefore, after extracting an improper incriminating statement from a defendant, the state
must show that the subsequent confession was given freely and voluntarily “and that the
constitutional right to be free from self-incrimination was not waived due solely to the psychological
pressures resulting from giving the previous statement.” Id. To determine the effect of the prior
statement, courts should scrutinize the “totality of the circumstances surrounding the two
confessions” in the context of nine factors.6 Id. at 919-20.

        We are obligated to give great weight to the trial court’s findings that the evidence indicated
that Throneberry, one of the very first officers on the scene, promptly administered Miranda
warnings when the defendant was secured in a patrol car and that these warnings were provided prior
to any custodial interrogation. That court further determined that slight discrepancies in testimony
were understandable, given the nature of the call and the immediate scene, and that any consequence
of alleged discrepancies would be a jury question. A trial court’s findings of fact have the weight
of a jury verdict and are not overturned, absent a preponderance of evidence against them. See State
v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). This Court reviews application of law to those
facts de novo. See id. This Court may consider the entire record, including proof addressed at the
subsequent trial, in determining whether the trial court appropriately denied a motion to suppress.
See State v. Henning, 975 S.W.2d at 290 (Tenn. 1998).

        Campbell testified that the defendant was with Brazelton when Campbell approached him.
However, both Brazelton and Throneberry testified that they did not see Campbell until after the
house was secured. Further, Brazelton entered the residence with Throneberry. Therefore, Campbell
was unlikely to have questioned the defendant until after both officers exited the building. Further,
Throneberry testified, at both the hearing and the trial, that he administered warnings to the
defendant within minutes of his being secured in the patrol car, immediately after officers took him
into custody. We find no preponderance of evidence against the trial court’s findings of fact.

        The defendant further postulates that the influence of controlled substances prevented him
from giving a knowing and voluntary waiver prior to the second contested statement. The defendant
asserts that he was, during the second statement, restrained in handcuffs in the patrol car, covered
with blood, intoxicated to the level .16 as established by lab reports, under the influence of a large
quantity of drugs, “was crying and apparently agitated and frustrated by his confinement, and was
surrounded by a bevy of police officers.” The defendant asserts that the totality of circumstances


       6
           For those factors, see Smith, 834 S.W.2d at 919-20.

                                                 -6-
precludes his ability to intelligently make a free and informed choice to waive his rights against self-
incrimination.

         A defendant’s intoxication does not automatically preclude admissibility of his statements;
rather, that defendant must be intoxicated such that his waiver could not be the product of a free
mind and rational intellect. See Lane v. State, 239 S.W.2d (Tenn. Crim. App. 1979). The trial
court’s determinations regarding voluntariness of statements at the suppression hearing carry the
weight of a jury verdict and are binding on this Court absent a preponderance of evidence in the
record otherwise. See State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984).

        The evidence in the record does not preponderate against the trial court’s finding that the
defendant voluntarily waived his right against self-incrimination. The defendant moved under his
own power, recognized various persons on sight, recognized the Special Agent by name, and drew
an association between that agent and the agent’s brother. He recognized Throneberry and indicated
that the officer should not have been in that jurisdiction. He warned Davis that any water applied
to him after being “maced” would merely aggravate his discomfort. The pertinent officers testified
that he did not appear intoxicated. Although the blood tests established presence of intoxicants, we
do not find the preponderance of evidence required to overturn the trial court’s findings.

        Even if this Court held that there was error associated with admission of either or both of the
contested oral statements, that error would be harmless beyond a reasonable doubt. See Tenn. R.
Crim. P. 52(a). The defendant made at least two admissions outside any custodial interrogation that
he killed the victim, and these statements were admissible. See State v. Chambless, 682 S.W.2d
227 (Tenn. Crim. App. 1984) (addresses admissibility of statements to state agents in absence of
Miranda warnings). These statements and other evidence, discussed later in our analysis, established
the basis for a trier of fact to determine, beyond a reasonable doubt, that the defendant committed
first degree murder.

                                      Sufficiency of Evidence

        The defendant’s sufficiency of evidence argument specifically asserts that the state failed to
prove, beyond a reasonable doubt, the distinct elements of deliberation and of premeditation. When
a defendant challenges a jury verdict by questioning the sufficiency of evidence supporting that
verdict, this Court must determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of a crime beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d
63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellant is entitled to the strongest legitimate
view of the evidence and all reasonable inferences that may be drawn therefrom. See State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        The credibility of witnesses, the weight of their testimony, and the reconciliation of conflicts
in the evidence are matters entrusted exclusively to the trier of fact. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1983). A jury


                                                  -7-
verdict for the state accredits the testimony of the state’s witnesses and resolves all conflicts in favor
of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty verdict
removes the presumption of innocence enjoyed by defendants at trial and replaces it with a
presumption of guilt. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant
challenging the sufficiency of the evidence carries the burden of illustrating to this Court why the
evidence is insufficient to support the verdict. See State v. Freeman, 943 S.W.2d 25, 29 (Tenn.
Crim. App. 1996).

       The defendant was convicted of “[a] premeditated and intentional killing of another.” Tenn.
Code Ann. § 39-13-202(a)(1). For a conviction of first degree murder, the offense must have been
both premeditated and “deliberately, that is, with coolness and reflection.” State v. Brown, 836
S.W.2d 530, 539 (Tenn. 1992). “[T]he necessary elements of first-degree murder may be shown by
circumstantial evidence.” Id. at 541. “Relevant circumstances” for evaluating state of mind include
a deadly weapon used on an unarmed victim, weapons were procured to commit the killing, and, if
appropriate, repeated shots to the victim. See id. at 541-42; see also State v. Pike, 978 S.W.2d 904,
914 (Tenn. 1998).

        In State v. Kendricks, 947 S.W.2d 875 (Tenn. Crim. App. 1996), the defendant went to his
wife’s place of employment, calmly asked his wife to step outside, retrieved a rifle from his vehicle,
and shot and killed her. See Kendricks, 947 S.W.2d at 878, 880. Similarly, in the instant case the
defendant stole a firearm that he actually located for an acquaintance’s purchase, went to the victim’s
home while concealing a weapon, ordered the boy upstairs, shot the victim in the chest with a high-
powered rifle, stabbed him several times in the chest, and struck him with the rifle with such force
that he broke fragments from the stock of the weapon. After these actions, the defendant remarked
that he should cut out the victim’s heart. As in Kendricks, the facts “certainly give rise to the
inference that the defendant had thought about killing [the victim] and that he had done so while in
a ‘cool’ state of mind.” Id. at 880. Further, “[c]almness immediately after a killing may be evidence
of a cool, dispassionate, premeditated murder.” State v. West, 844 S.W.2d 144, 148 (Tenn. 1992).
The victim’s son’s testimony established that the defendant was calm. Further, the record
established that after the victim’s body was seen by the son, but before the officer arrived, the body
was moved and a rifle, belonging to the victim, was placed in the deceased victim’s grasp. This
evidences a calm state of mind. This issue is therefore without merit.

                                          Jury Instructions

        The defendant asserts that the trial court erroneously refused to issue a jury instruction that
specifically addressed post-traumatic stress disorder. The trial judge carries a positive duty to issue
“a complete charge on the law applicable to the facts of a case.“ State v. Phipps, 883 S.W.2d 138,
149 (Tenn. Crim. App. 1994); see also State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990) (an accused
has a constitutional right to a correct and complete charge of the law). A defendant is entitled to
every issue of fact raised by the evidence and material to his defense submitted through proper
instructions to the jury, as well as, upon request, an instruction “which outlines the defense theory
of his case.” Phipps, 883 S.W.2d at 149-50. However, this Court reviews contested jury


                                                   -8-
instructions in the context of the entire charge, and if those instructions as a whole correctly, fully,
and fairly set forth the applicable law, then denial of a special instruction is not error. See id. at 142;
see also State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim. App. 1987).

        The defendant asserts that his mental condition precluded his possessing the requisite mental
state for a first degree murder conviction. “[E]vidence . . . on an accused’s mental state[] is
admissible in Tennessee to negate the elements of specific intent, including premeditation and
deliberation in a first-degree murder case.” See Phipps, 883 S.W.2d at 149. The defendant entered
evidence of his status as a veteran of the Vietnam conflict and of his extensive history of mental
treatment. The issued instruction comprised a statement that:
        [i]f you find from the evidence that the defendant’s capacity to form a culpable
        mental state may have been affected, then you must determine beyond a reasonable
        doubt what the mental state of the defendant was at the time of the commission of
        which, if any offense, he is guilty.

        In Phipps, the defendant relied on the theory that his post-traumatic stress disorder precluded
his possessing requisite intent for first-degree murder; he did not assert insanity or any other
affirmative defense. Id. at 150. The trial court instructed the jury that post-traumatic stress
syndrome and major depression were not defenses to a criminal offense, an instruction which
effectively precluded the jury from considering submitted testimony regarding his mental state,
suggested the evidence was of no consequence, and removed an accepted defense theory from the
jury’s consideration. Id. at 149-51.

        In contrast, we have reviewed the jury instructions applied in the instant case and found that
they instruct the jury as to the charged offense, potential lesser offenses, and the mens rea required
for conviction of each of these offenses. The instructions further define the insanity defense,
intoxication, and self-defense, all asserted by the defendant in addition to the argument that his
mental condition precluded his forming the requisite mens rea for first degree murder. Further, the
instructions clearly stated that the jury “heard evidence that the defendant might have suffered from
a mental disease or defect which could have affected his capacity to form the culpable mental state
required to commit the offense in this case.” In their totality, these instructions remove neither the
theory of diminished capacity nor precluded evidence from the jury’s consideration. The concerns
that required reversal in Phipps are therefore not invoked. This issue is without merit.

                                            CONCLUSION

        We affirm the trial court’s judgment.




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