         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs September 10, 2002

                  STATE OF TENNESSEE v. BILLY F. JOHNSON

                     Appeal from the Criminal Court for Davidson County
                          No. 2000-B-1103     Seth Norman, Judge



                   No. M2001-00330-CCA-R3-CD - Filed February 18, 2003


A Davidson County Criminal Court jury convicted the defendant, Billy F. Johnson, of first degree
premeditated and felony murder and theft of property valued more than five hundred dollars but less
than one thousand dollars, a Class E felony. The trial court merged the murder convictions and
sentenced the defendant to life in the Department of Correction (DOC). For the theft conviction, the
trial court sentenced the defendant to two years to be served concurrently to the life sentence. The
defendant appeals, claiming (1) that the evidence is insufficient to support his premeditated murder
and theft convictions; (2) that the trial court erred by denying his motion to suppress his confessions;
and (3) that the trial court erred by refusing to order the prosecutor to stop misstating the facts during
closing argument. We affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

Paula Ogle Blair, Nashville, Tennessee, for the appellant, Billy F. Johnson.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Pamela S. Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

         This case relates to the defendant’s killing Billy Wiggins with a sledgehammer. Tom Hailey
testified that he and the victim were friends and that he had known the victim for a couple of years.
The victim drove a tour bus for country music bands and would leave Nashville on trips that lasted
two days to two months. While the victim was away, Mr. Hailey checked on the victim’s house and
picked up his mail. Mr. Hailey had a key to the victim’s home and would put the mail on the
victim’s dining room table.
        In January 1998, the victim had been away from home on a bus trip. The victim was a few
days late returning to Nashville, and Mr. Hailey tried to contact the victim through the victim’s pager
and cellular telephone. When the victim did not answer, Mr. Hailey went to the victim’s home and
noticed that the victim’s 1985 Mercury Marquis was gone. He went into the house, opened the
victim’s bedroom door, and saw the victim lying in bed. Mr. Hailey knew the victim was dead,
closed the bedroom door, called 9-1-1, and went outside to wait for the police.

         On cross-examination, Mr. Hailey testified that he lived twelve to fifteen miles from the
victim. He said he did not remember telling the police that the victim liked to pick up young men
and take them to the victim’s home in order for the men to do odd jobs. He also said he did not
remember telling the police that the victim was a homosexual. He said that as soon as the victim
would get back from a bus trip, the victim would pick up men who did not have a place to live and
would hire them to clean his bus. He said the victim paid the men, allowed them to spend the night
in the victim’s home, and cooked supper for them. He said he had seen the victim with the defendant
and the codefendant, David Lackey, before. He said that one time he visited the victim’s home while
the defendant and Mr. Lackey were there and that the victim cooked dinner for the defendant and
Mr. Lackey.

        Mr. Hailey testified that the victim did not drink but that men who stayed at the victim’s
house would bring their own beer. He said that he never saw the victim give the men gifts and that
the victim did not help the men find jobs. He said that the victim took prescription medicine and that
he did not remember seeing drugs or alcohol in the victim’s home. He said that on the day he found
the victim, he was in the victim’s home for about five to ten minutes and touched three doorknobs
and a telephone.

         Lieutenant John Stephens of the Nashville Metropolitan Police Department (Metro Police)
testified that at 6:15 p.m. on January 24, 1998, he was dispatched to the victim’s home at 716
Greymont Drive. Another officer told him that a body was inside, and he and the officer entered the
victim’s bedroom. The victim was lying in bed, and most of the victim’s body was covered with a
blanket. A tool handle was sticking out from underneath the covers at the head of the bed, and
Lieutenant Stephens later learned the tool was a sledgehammer. He and the officer went outside and
secured the house until homicide detectives arrived.

        Dr. John E. Gerber, a forensic pathologist, testified that the fifty-year-old victim died of
multiple blunt force injuries to the right side of his head. The injuries fractured the victim’s skull
and tore his brain. The victim also had bruises on his right elbow and on his right forearm. No drugs
or alcohol were found in the victim’s blood, and the body was moderately decomposed. The victim
may have lived for an hour after he was attacked and could have made sounds during that time.
Although Dr. Gerber did not know how the victim injured his right arm, he said that the bruises on
the victim’s forearm and elbow could have been defensive wounds.

       Metro Police Officer Edward Shea testified that he worked in the Identification Section of
the department and that on January 24, 1998, he was called to 716 Greymont Drive to photograph


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the crime scene and collect fingerprint evidence. He found blood spatter on the victim’s bedroom
door and on the wall at the head of the victim’s bed. He also saw that the victim’s bed sheets and
pillows were heavily stained with blood. An entertainment center in the victim’s bedroom had been
pulled away from the wall, and a television was missing. The handle of a sledgehammer was
sticking out from underneath the sheets at the head of the victim’s bed, and Officer Shea collected
the sledgehammer as evidence.

        Larita Marsh, a fingerprint analyst for the Metro Police, testified that she analyzed fingerprint
evidence from the victim’s home. She said that fingerprints found on the inside of a bathroom door
and on the right side of the victim’s entertainment center matched the defendant and that fingerprints
found on a plastic container in the victim’s living room and on the outside of the victim’s bedroom
door matched David Lackey. She said that other fingerprints found in the home matched the victim
and that one fingerprint matched a man named John Matthew Cleg.

       Metro Police Officer Ralph Deavers testified that in January 1998, he worked in the police
department’s Identification Section and received a sledgehammer for processing. He said he put a
chemical dye on the sledgehammer and was able to see smudges and smears on its handle. He
acknowledged that the smudges and smears could have been caused by someone wearing gloves.

        Metro Police Officer Gary Felts testified that on January 22, 1998, two days before Tom
Hailey found the victim, he was dispatched to an accident at the intersection of Eighteenth and West
End Avenues. He saw that the front of a Mercury Marquis had hit a utility pole. Although the driver
was not present, Officer Felts learned from the car’s license tag and registration that it belonged to
the victim. He had the car towed to the police department.

         Metro Police Detective Larry Carter testified that at 8:30 a.m. on January 22, he reported to
a traffic accident at Eighteenth and West End Avenues. He had been called to the scene because
another officer had found electronic equipment in the car. After the car was towed to the police
department, Detective Carter inventoried the car and made a list of the items he found. The list,
which the state introduced into evidence, shows that the car contained eighteen items, including
several televisions and video cassette recorders (VCRs). Detective Carter learned that the car
belonged to the victim and that the car had not been reported stolen. On January 23, he went to the
victim’s house in order to get information about the car and the electronic equipment. Mail was in
the victim’s mailbox, the blinds in the victim’s house were closed, and the house looked abandoned.
Detective Carter knocked on the victim’s door and radioed for assistance. He talked to the victim’s
neighbors but did not find the victim. Two days later, he found out that the victim had been killed.
On cross-examination, he said that the windshield on the Marquis had been cracked and that hair and
tissue were embedded in the broken glass.

        Metro Police Officer Charles Ray Blackwood, Jr. testified that on February 2, 1998, he
helped another officer collect evidence, including a glove, a wallet, and a driver’s license, off
Interstate 24 in Davidson County. Officers found the items in the grass beside the shoulder of the
interstate, and the distance between the first and last pieces of evidence was one thousand feet. The


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evidence was tested for fingerprints, but no prints were recovered. On cross-examination, Officer
Blackwood said that the glove appeared to have been thrown from the interstate. The glove was
dirty but no blood, hair, or fibers were on it. Officer Blackwood did not remember how far the glove
was found from the other items and did not know if the glove had anything to do with the victim’s
death.

        Detective Keith Barnett of the Montgomery, Alabama Police Department testified that
Montgomery police officers arrested the defendant at 2:20 a.m. on February 7, 1998, based on a
warrant that had been issued for the defendant in Nashville. He said that ten minutes after the police
arrested the defendant, officers brought the defendant to the police station and he began talking to
the defendant. He said that at first, the defendant could not remember anything and could not tell
Detective Barnett the defendant’s name. He said that he had received a picture of the defendant from
the National Crime Information Center (NCIC) and that he showed the picture to the defendant. He
said that he told the defendant he knew who the defendant was and that he filled out a waiver of
rights form for the defendant. He said that he explained the form to the defendant and that the
defendant wanted to talk to him. He said the defendant signed the form and admitted his name was
Billy Johnson.

        Detective Barnett testified that the defendant was scared and nervous but very polite. He said
the defendant told him the following: The defendant had been in Nashville and had been staying
with the victim in the victim’s house. The victim would pick up young men and let them live with
him in exchange for sex. David Lackey also had been staying at the victim’s home. Although Mr.
Lackey had had sex with the victim, the defendant had not. The defendant was homeless and
frustrated that he did not have any money. He wanted to get back on his feet and decided to kill the
victim and pawn the victim’s property. The defendant told Mr. Lackey that he was going to kill the
victim and got a sledgehammer out of the victim’s garage. While the victim slept, the defendant
went into the victim’s bedroom and hit the victim three times with the sledgehammer. The
defendant and Mr. Lackey loaded the victim’s property into the victim’s Marquis and drove
downtown to pawn the property. On the way to a pawn shop, the car hydroplaned and hit a utility
pole. The defendant and Mr. Lackey ran from the accident and split up. The defendant spent a
couple of more nights in Nashville and then hopped a freight train to Montgomery, Alabama. The
state played a videotape of the victim’s statement for the jury, and the tape corroborated Detective
Barnett’s testimony.

        On cross-examination, Detective Barnett testified that the defendant was dirty but did not
appear to be intoxicated. He acknowledged that the defendant told him the defendant took pills and
drank alcohol while the defendant was staying with the victim. He said the defendant told him that
the victim had been pressuring the defendant for sex and had threatened to put the defendant back
on the street. The defendant told Detective Barnett that he “snapped” and that he did not know
where he had been for the last couple of days because he had been taking drugs. He said the
defendant claimed that he did not plan to kill the victim.




                                                 -4-
        Metro Police Detective Roy Dunaway testified that he was the lead investigator in the case.
He said that the victim’s entertainment cabinet had been pulled away from the wall in order for
someone to unplug the victim’s electronics and that an outline of dust in the cabinet indicated a
television and a VCR were missing. He said that a blanket and a pillow were on the victim’s living
room couch and that when he moved the blanket, a knife fell on the floor. He said that during his
investigation, he went to an area off Interstate 24 near Briley Parkway and found some of the
victim’s identification. He said he developed the defendant and David Lackey as suspects and faxed
a warrant and a photograph of the defendant to police in Montgomery, Alabama.

        Detective Dunaway testified that Montgomery police arrested the defendant and that he drove
the defendant from Montgomery to Nashville on February 12, 1998. He said he took the defendant
to the Criminal Justice Center, advised the defendant of his rights, and read a waiver of rights form
to him line by line. He said the defendant appeared to understand his rights and signed the form.
He said that he interviewed the defendant and that the interview was audiotaped. The defendant’s
audiotaped confession, which was played for the jury, is nearly identical to his videotaped
confession.

        On cross-examination, Detective Dunaway testified that he talked to Tom Hailey and that Mr.
Hailey claimed to have been the victim’s best friend. He acknowledged that Mr. Hailey told him that
the victim was a homosexual, that the victim liked to pick up young men, and that the men helped
the victim clean his buses. He said that during his investigation, he saw empty beer cans and liquor
bottles in the victim’s living room and trash can. He said that the defendant had been in custody in
Alabama for seven days when he first spoke to the defendant and that the defendant appeared sober.
He said that as soon as he and the defendant got back to Nashville, he began questioning the
defendant. He said the defendant told him that the defendant had been taking a lot of pills and
drinking beer and Jack Daniels the night he killed the victim. He said the defendant told him that
the victim had been trying to get sex from the defendant and that the defendant’s head had been
ringing and screaming. He acknowledged that the defendant told him that after the defendant killed
the victim, the defendant drank beer in order to calm down and blacked out. He said that although
the defendant could not remember some details of the killing, he thought the defendant had been
truthful with him. The jury convicted the defendant of first degree premeditated and felony murder
and theft of property valued more than five hundred dollars but less than one thousand dollars.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant claims that the evidence is insufficient to support his first degree premeditated
murder conviction because it shows that he snapped and that he did not plan to kill the victim. In
addition, he contends that the evidence is insufficient to support his theft conviction because the state
failed to prove that the victim’s car had a value of more than five hundred dollars. The state argues
that the evidence is sufficient. We agree with the state.

       Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any


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rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       First degree premeditated murder is defined as a “premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(1). Further, “premeditation” is defined as

               an act done after the exercise of reflection and judgment.
               “Premeditation” means that the intent to kill must have been formed
               prior to the act itself. It is not necessary that the purpose to kill
               pre-exist in the mind of the accused for any definite period of time.
               The mental state of the accused at the time the accused allegedly
               decided to kill must be carefully considered in order to determine
               whether the accused was sufficiently free from excitement and
               passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d). The element of premeditation is a question for the jury and may
be established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d at 660. Our
supreme court has delineated the following factors that demonstrate the existence of premeditation:
the use of a deadly weapon upon an unarmed victim, the particular cruelty of the killing, declarations
by the defendant of an intent to kill, evidence of procurement of a weapon, preparations before the
killing for concealment of the crime, and calmness immediately after the killing. Id. A conviction
for first degree premeditated murder requires proof that the defendant unlawfully and knowingly
killed another. See Tenn. Code Ann. §§ 39-13-201, -210(a)(1). First degree felony murder is in
pertinent part, a “killing of another committed in the perpetration of or attempt to perpetrate any .
. . theft.” Tenn. Code Ann. § 39-13-202(a)(2).

        Viewed in the light most favorable to the state, the evidence shows that the defendant is
guilty of first degree premeditated murder. Our review of the defendant’s videotaped and audiotaped
confessions reveals that on the night the defendant killed the victim, the victim went to bed and the
defendant went into a second bedroom to watch television. While watching television, the defendant
decided to kill the victim and pawn the victim’s property. The defendant told David Lackey that he
was going to kill the victim. Mr. Lackey or the defendant got a sledgehammer out of the victim’s
garage, and the defendant carried the sledgehammer into the victim’s bedroom. While the victim
was sleeping and defenseless, the defendant hit the victim in the head three times with the
sledgehammer and covered the victim with a blanket. This evidence is sufficient to support the
victim’s conviction for premeditated murder. Moreover, although not contested by the defendant,
we believe the evidence also is sufficient to support the defendant’s felony murder conviction
because the evidence shows that after the defendant killed the victim, he and Mr. Lackey loaded the
victim’s personal property into the victim’s car and fled the scene.


                                                 -6-
       As for his theft of property conviction, the only evidence presented regarding the Marquis’
value occurred during the state’s questioning of Tom Hailey. Mr. Hailey testified as follows:

               Q.      Did you have, by any chance, any knowledge of his 1985
                       Mercury Marquis car?

               A.      Yes, ma’am. He had two cars.

               Q.      Okay. And who had the title on the 1985 Mercury Marquis,
                       the dark car?

               A.      I did.

               Q.      And why did you have the title on that car?

               A.      Because I had just gotten it out of the shop. He had just
                       gotten it out of the shop. He hadn’t got paid, and he insisted
                       that I take the title.

               Q.      Did you loan him money in exchange for that?

               A.      Yes, ma’am.

               Q.      And how much, if you were to place a dollar figure or value
                       on that car, would you place?

               A.      I don’t have the slightest idea. I would say five hundred
                       dollars.

               Q.      Okay. And how much was the loan that you gave to Mr.
                       Wiggins for the repairs?

               A.      Four something, four -- low figures.

               Q.      Four hundred?

               A.      Yes, ma’am.

Later, Detective Larry Carter testified that he inventoried eighteen items found in the car, including
several televisions and VCRs. A list of the inventoried items, which the state introduced into
evidence, shows that the car also contained several bottles of liquor, two quartz wall clocks, a pocket
radio, and a stereo receiver. Moreover, we note that Detective Carter wrote on the list that the
estimated value of the property was five thousand dollars. While we believe the prosecution put


                                                 -7-
forth minimal effort to prove the value of the car or the stolen items, we conclude that, viewed in the
light most favorable to the state, a rational jury could have found that the victim’s car and electronic
equipment had a value of more than five hundred dollars. The evidence is sufficient to support the
defendant’s theft conviction.

                                  II. MOTION TO SUPPRESS

        Next, the defendant contends that the trial court erred by denying his motion to suppress his
confessions to Montgomery and Nashville police. Regarding his confession to Montgomery police,
he claims that it was given involuntarily because he had been without food and rest and because
officers told him he would get the death penalty if he did not talk to them. He claims that the trial
court also should have suppressed his confession to Nashville police as fruit of the poisonous tree
resulting from his first involuntary confession. The state argues that the trial court properly denied
the defendant’s motion. We agree with the state.

        At the suppression hearing, Detective Keith Barnett testified that Montgomery police officers
arrested the defendant at 2:20 a.m. on February 7, 1998, and that he read the defendant his rights
from a waiver of rights form at 2:35 a.m. He said that he asked the defendant if the defendant
understood his rights and that the defendant said yes. He said that he had the defendant read aloud
the following paragraph from the form:

                       I fully understand the foregoing [rights] and do willingly agree
                to answer questions. I understand and know what I am doing. No
                promise or threats have been made to me by anyone and no pressure
                of any kind has been made against me by anyone.

He said that the defendant signed the waiver of rights form and gave a statement. He said that he
took the defendant into an interview room and that he and the defendant went over the waiver of
rights form again. He said that the defendant gave a second statement and that the second statement
was videotaped. He said that the defendant did not appear to be intoxicated or on drugs, that the
defendant did not stagger, and that he did not smell alcohol on the defendant.

        On cross-examination, Detective Barnett acknowledged that he did not videotape the
defendant’s first statement and that at first, the defendant claimed he did not know anything. He
denied telling the defendant that the defendant would “fry” if the defendant refused to give a
statement and that the defendant probably would get a twenty-one-year sentence if he talked to the
police. He said that another officer was present during the defendant’s interviews and that he did
not hear the officer make any threats or promises to the defendant. He said he did not remember
asking the defendant if the defendant had been drinking but that the defendant appeared to be very
coherent and did not look tired.

      Detective Roy Dunaway testified that he and another officer drove the defendant back to
Nashville on February 12. He said that when they arrived, he immediately went over a waiver of


                                                  -8-
rights form with the defendant. He said that he read the defendant his rights from the form, that the
defendant read the form along with him, and that the defendant initialed the rights. He said that the
defendant signed the form and did not appear to be intoxicated or on drugs. He acknowledged that
the following question appears at the bottom of the form: “Did this subject appear intoxicated or
have any known impairment that would render him or her incompetent to fully understand the rights
above and make a knowing, intelligent, and voluntary waiver?” He acknowledged that he did not
answer the question and said that he must have overlooked it. He said that after the defendant signed
the waiver of rights form, he interviewed the defendant and that the interview was audiotaped.

       On cross-examination, Detective Dunaway testified that during the trip from Montgomery
to Nashville, he and the defendant made conversation. He said that they stopped somewhere for
lunch and that the defendant did not appear tired. He said that he did not ask the defendant if the
defendant had been taking drugs or drinking alcohol and that the defendant appeared completely
normal.

        The defendant testified that he had been living on the streets when Montgomery police
officers arrested him and that he was tired and worn down. He said that at first, he told the
Montgomery officers that he did not know who he was. He said the officers told him he was going
to “F-ing fry” if he did not give a statement and that he could get a twenty-year sentence if he talked
to them. He said that he did not know anything about the judicial process and that he confessed to
killing the victim because he was scared and because the officers kept hounding him. He
acknowledged that he had been in trouble with the law as a juvenile and that he had been charged
as an adult for two misdemeanors. He also acknowledged that he was lying when he told
Montgomery officers that he did not know his name.

        The defendant testified that he was still scared and worn down when he confessed to
Nashville police. He said, though, that he felt better during his interviews with the Nashville police
officers than he had with the Montgomery police officers because he had slept in jail. On cross-
examination, he acknowledged signing waiver of rights forms in Montgomery and Nashville. He
also acknowledged that Detectives Barnett and Dunaway read the forms to him and that he
understood the forms.

        The trial court watched and listened to the defendant’s confessions. It noted that during the
defendant’s confession to Montgomery police, he walked into the interview room without difficulty,
sat down, and opened a soft drink. It noted that the defendant read the waiver of rights form aloud
and that his speech was clear. Finally, the trial court pointed out that in the videotape, the defendant
stood up without difficulty and demonstrated how he hit the victim with the sledgehammer. The trial
court found “no evidence whatsoever that this gentleman was under any type of influence at the time
he made this statement.” It denied the defendant’s motion to suppress his statements to Montgomery
and Nashville police.

       A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.


                                                  -9-
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The application of the law to the facts as
determined by the trial court is a question of law which is reviewed de novo on appeal. State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Further, questions of the “credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial judge as the trier of fact.” Id. at 628. The prevailing party “is 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 the evidence.” Odom, 928 S.W.2d at 23. Finally, both
the proof adduced at the suppression hearing and the proof adduced at trial may be considered in
reviewing the trial court’s decision on the motion to suppress. State v. Henning, 975 S.W.2d 290,
299 (Tenn. 1998).

        In Miranda v. Arizona, the United States Supreme Court held that pursuant to the Fifth and
Fourteenth Amendments’ prohibition against compelled self-incrimination, police officers must
advise a defendant of his or her right to remain silent and right to counsel before they may initiate
custodial interrogation. 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966). If these warnings are not
given, statements elicited from the individual may not be admitted for certain purposes in a criminal
trial. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528 (1994). A waiver of
constitutional rights must be made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.
at 444, 86 S. Ct. at 1612. 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 determining whether a defendant
has validly waived his Miranda rights, courts must look to the totality of the circumstances. State
v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).

        Our review of the record supports the trial court’s determination that the defendant
voluntarily confessed to killing the victim. Detective Barnett testified that he read Miranda warnings
to the defendant before the defendant’s first interview in Montgomery and that the defendant signed
a waiver of rights form. Detective Barnett further testified that the defendant was not under the
influence of drugs or alcohol and that he did not make any threats or promises to the defendant.
Similarly, Detective Dunaway testified that he read Miranda warnings to the defendant before the
defendant’s first Nashville interview and that the defendant signed a waiver of rights form. On both
the Montgomery and Nashville forms, the defendant signed statements acknowledging that he had
not been pressured or promised anything in return for his talking to the police, and he testified at the
suppression hearing that he read the forms and understood them. We note that in our review of the
defendant’s video- and audiotaped confessions, the defendant was calm and extremely articulate in
describing why and how he killed the victim. At no time did he indicate that he was confused or that
the police pressured him into confessing. We conclude that the defendant voluntarily confessed to
the crimes and that the trial court properly denied his motion to suppress.

                        III. PROSECUTOR’S CLOSING ARGUMENT

       Finally, the defendant claims that the trial court erred by failing to order the prosecutor to
stop misstating the facts during her closing argument. In addition, he contends that the trial court
should have provided the jury with a curative instruction regarding the misstatements. The state


                                                 -10-
argues that the prosecutor’s statements were not improper, and, therefore, that no curative instruction
was required. We believe that the defendant is not entitled to relief.

        During the state’s closing argument, the prosecutor said, “Billy Wiggins was a person. He
got a paycheck. He was a single gay dude. He was an ‘it’. He was a faggot, who you couldn’t stand
to look at.” Later, the prosecutor stated the following:

                        So [the defendant] sits in his room, watching TV, decides to
               kill [the victim]. He’s going to haul his TVs and his VCRs and load
               them up and take off.
                        So what does he do? He gets up. He walks out of the room.
               He walks down the hall. He walks into the living room, where David
               is. He stops, he has a conversation. He has a conversation with
               David about what he is planning to do.
                        He asks him, “Are you in on it? Are you game for it?” See,
               he needs David because David’s the one with the I.D.

At that point, the defense objected on the basis that there was no evidence that the defendant made
those statements to David Lackey The trial court overruled the objection and said, “It’s for the Jury
to decide what the facts are in the case.”

       The defendant first contends that the prosecutor referred to the victim as an “it” and a
“faggot” in order to inflame the jury and give the jury the impression that the defendant killed the
victim because the victim was a homosexual. As for the prosecutor’s statements regarding the
defendant’s conversation with Mr. Lackey, the defendant claims that there was no evidence that he
made those statements. Moreover, he contends that he was prejudiced by the statements because
they gave the jury the impression that he planned and premeditated the killing.

         The Tennessee Supreme Court has recognized that “argument of counsel is a valuable
privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
Jury argument must be predicated on evidence which is introduced during the trial and is pertinent
to the issues being tried. Russell v. State, 532 S.W.2d 268 (Tenn. 1976). Attorneys may not argue
facts which are not of record. State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). Likewise, it is
improper for an attorney to misstate evidence intentionally. See Granstaff v. State, 163 Tenn. 623,
45 S.W.2d 527 (1932). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court
set out the following considerations for determining whether the state’s conduct could have
improperly prejudiced the defendant and affected the verdict:

               1. The conduct complained of viewed in context and in light of the
               facts and circumstances of the case.

               2. The curative measures undertaken by the court and the prosecution.



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                3. The intent of the prosecutor in making the improper statement.

                4. The cumulative effect of the improper conduct and any other
                errors in the record.

                5. The relative strength or weakness of the case.

         Regarding the prosecutor’s referring to the victim as an “it” and a “faggot,” as the state points
out in its brief, the defendant failed to object at trial to the prosecutor’s statements. The failure to
object contemporaneously constitutes a waiver of the issue pursuant to Rule 36(a), T.R.A.P. See
also State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (failure to object to prosecutor’s
alleged misconduct during closing argument waives any later complaint). With respect to the
prosecutor’s statements about the defendant’s conversation with David Lackey, the defendant
confessed to police that he decided to kill the victim and that he told Mr. Lackey about his intentions.
However, the record contains no evidence that the defendant specifically said, “Are you in on it?
Are you game for it?” Nevertheless, we believe that in making those statements to the jury, the state
merely was trying to show that the defendant premeditated the killing and that Mr. Lackey agreed
to go along with it. There is no evidence that the prosecutor deliberately tried to mislead the jury,
and there is ample evidence to support the jury’s finding of premeditation. We conclude that the
prosecutor’s statements did not prejudice the defendant.

        Based on the foregoing and the record as a whole, we affirm the judgments of conviction.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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