                                                                                        08/28/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               February 7, 2017 Session

 STATE OF TENNESSEE v. MARK HAROLD LULLEN a.k.a. LUELLEN

          Interlocutory Appeal from the Circuit Court for Fayette County
                   No. 15-CR-150      J. Weber McCraw, Judge
                     ___________________________________

                           No. W2016-00709-CCA-R9-CD
                       ___________________________________


We granted this interlocutory appeal to review the trial court’s order granting the motion
of the defendant, Mark Harold Lullen a.k.a. Luellen, to suppress his statement because
officers did not give Miranda warnings. Upon review, we conclude Miranda warnings
were unnecessary because the defendant was not in custody when questioned by law
enforcement, so the trial court erred when granting the defendant’s motion to suppress on
that basis. Despite arguments by the defendant that he did not voluntarily give his
statement because he was under the influence of prescription drugs, the trial court failed
to make findings of fact in this regard. Accordingly, we remand for full hearing and
additional findings as to whether the defendant’s statement was voluntary.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed;
                                 Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and CAMILLE R. MCMULLEN, J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; D. Mike Dunavant, District Attorney General; and Matt Hooper,
Assistant District Attorney General, for the appellant, State of Tennessee.

Coleman Garrett, Memphis, Tennessee, for the appellee, Mark Harold Lullen, a.k.a
Luellen.

                                       OPINION

                             Facts and Procedural History
        On April 20, 2015, Officer Eric Austin of the Moscow Police Department initiated
a traffic stop of the defendant. The defendant became agitated during the stop and
attempted to run Officer Austin over with his vehicle. Officer Austin fired his gun and
shot the defendant on the right side of his chest. The defendant drove away and crashed
into a light pole a short distance from Gurkin’s convenience store. First responders were
contacted and found the defendant unrestrained and sitting in the driver’s seat of his car
upon arrival. An ambulance subsequently transported the defendant to Regional One
Health in Memphis for treatment, and the defendant underwent surgery later that day.

       The Fayette County District Attorney requested that the Tennessee Bureau of
Investigation (“TBI”) investigate whether Officer Austin was justified in shooting the
defendant, and Special Agent Ronnie Faulkner of the TBI was assigned to the matter.
Agent Faulkner and Special Agent Ryan Fletcher, also with the TBI, went to the hospital
around 10:30 a.m. on April 21, 2015, to interview the defendant. Upon arrival, the agents
spoke with a nurse, who informed them the defendant was sleeping and directed them to
his room.

        The defendant was asleep when the agents entered his hospital room, and his
brother, Michael Lullen, was present. As Agent Faulkner was in the process of
identifying himself to Michael Lullen, the defendant woke up and began talking about the
shooting. Agents Faulkner and Fletcher stopped the defendant and identified themselves
as TBI agents, showed the defendant their credentials, explained they were present to
interview him as part of their investigation of the shooting, and advised the defendant he
did not have to speak with them. Agent Faulkner also told the defendant he was not
under arrest or being charged with a crime by the TBI. Agent Faulkner did not Mirandize
the defendant because he was merely present to gather information to be given to the
district attorney, who would decide whether to bring charges against the defendant.
There were not any officers present in the defendant’s room to prevent him from leaving
the hospital.

       According to Agent Faulkner, the defendant was excited about being questioned
by the TBI and wanted to tell his side of the story. As Agent Faulkner questioned the
defendant, he wrote down his responses. The interview lasted approximately thirty
minutes. At the conclusion of the interview, Agent Faulkner reviewed the statement line-
by-line with the defendant, and the defendant signed it. Agent Faulkner believed the
statement given by the defendant was consensual. He has been in law enforcement for
twenty-eight years and has ample experience with intoxicated individuals. Based on this
experience, Agent Faulkner did not believe the defendant was impaired at the time of the
interview.



                                          -2-
       The defendant was later indicted for attempted second degree murder, two counts
of aggravated assault, driving under the influence (“DUI”), and DUI per se for the
incidents on April 20, 2015. The defendant filed a motion to suppress “all statements
allegedly given by defendant to any and all law enforcement authorities,” arguing “said
statements were obtained in violation of the defendant’s constitutional rights” and that
“the officers failed to follow the mandate of Miranda v. Arizona.” The defendant then
filed an amended motion to suppress, arguing that his statements to the TBI agents were
not voluntary, and the agents did not advise him of his Miranda rights. In response, the
State asserted the defendant was not in custody at the time he gave the statement, and the
statement was voluntary.

       The trial court subsequently held a suppression hearing. The State called Agent
Faulkner as a witness. In addition to explaining the circumstances surrounding the
statement given by the defendant, Agent Faulkner read the statement into evidence,
stating:

       I was driving about twenty to twenty-five miles per hour when I met the
      officer in the patrol car. The patrol car turned around and followed me and
      blue-lighted me. I turned into the parking lot at Gurkin’s in Moscow. The
      officer told me that I was driving too slow. I told him that I didn’t know
      you could drive too slow. I gave the officer my driver’s license. The
      officer went to his car and then told me that I had a warrant when he came
      back to my car. I told him that I had just got out of jail. I told him that I
      had not did anything, that I wasn’t going back to jail. I told him that we
      needed to talk things out. The officer had been talking to the lady at the
      store and the lady had gotten me a pack of cigarettes. I never got out of the
      car. The officer said that I was going to jail. I told him that I was tired of
      white folks taking darkies to jail. I wanted to see the warrant. I started my
      car up and told the officer I wasn’t going to jail, that he was going to have
      to shoot me. I put my car in reverse and the officer tried to open my door.
      I took off backwards. The officer knew that I was backing up and he
      should get the hell out of the way. I backed up and started forward toward
      Grand Junction. When I started forward, the officer was in front of my car
      on the driver’s side. The officer was in front of my car but I wasn’t trying
      to run over him but I did see him in front of the car when I took off. The
      officer shot one or two times through my windshield. I felt something hit
      me and thought it was a Taser. I continued down the road but I couldn’t
      see and I remember that I ran off the road and hit something. I had drank
      one can of beer at home before I left.



                                          -3-
       The State also called Justin Powers, a private investigator hired by the defendant’s
family to investigate the shooting, as a witness. Mr. Powers testified he was present at
the hospital around 3:00 p.m. on April 21, 2015, and the defendant appeared disoriented.
Mr. Powers, however, did not speak to the defendant until April 23, 2015. The State then
exhibited the defendant’s medical records from Regional One Heath and pointed out that
while the records show the defendant was disoriented after his admission and surgery on
April 20, 2015, by the end of the day he was alert. The defendant’s medical records also
show he was alert on April 21, 2015.

        The defendant called his brother, Michael Lullen, to testify as his only witness.
Mr. Lullen’s testimony differed significantly from that of Officer Faulkner. Mr. Lullen
stated he was at hospital with his brother at the time the TBI agents arrived. He saw
Agents Faulkner and Fletcher walking down the hall and, even though they were not
wearing uniforms, knew they were law enforcement officers because he could see guns
and badges on their sides. After seeing them, Mr. Lullen immediately went into his
brother’s hospital room so he would be present when the officers spoke with him. Mr.
Lullen testified that once the officers entered the room, he told them to leave because
their attorney was not present, and the defendant was on powerful medication. One of
the officers asked for a business card for the lawyer, but Mr. Lullen did not have one.
Mr. Lullen claims his brother was “on his death bed,” yet the officers repeatedly tried to
wake him up by shaking his un-injured shoulder. While this was happening, Mr. Lullen
said, “You need to leave and get a hold of our attorney.” The officer then told him he
was interfering with a police investigation and would be arrested if he didn’t “chill out.”

      According to Mr. Lullen, prior to getting the statement, the agents never told the
defendant he did not have to speak with him. The medication was too strong for the
defendant, so he “couldn’t answer questions and stuff.” Mr. Lullen testified that he never
saw his brother read the statement written by Agent Faulkner. Mr. Lullen denied telling
Agent Faulkner his brother was coherent at the time the officers interviewed him.

       Mr. Lullen testified that he lived with his brother, who had been mentally disabled
since the Vietnam War. The defendant had most recently been hospitalized for his
mental issues approximately one year prior to the shooting. Mr. Lullen was questioned
extensively regarding the civil lawsuit filed by the defendant’s family following the
shooting. Mr. Lullen admitted to knowing about the lawsuit, but was evasive in response
to most questions about the lawsuit, instead stating his sister was the family member
involved with it.

       At the conclusion of the suppression hearing, the trial court reserved ruling and
later entered an order granting the motion. In its order, the trial court first found Mr.
Lullen not to be a credible witness because he lived with the defendant and had an
                                           -4-
interest in the civil lawsuit. In support of its decision to suppress the defendant’s
statement, the trial court then found:

      First, the Court finds the medical records indicate that the defendant was
      unable to sign certain documents needed as part of his medical care.
      Further, the Court finds the defendant was under the influence of
      prescription drugs which hampered his ability to understand the full nature
      of his actions on April 21, 2015. As a result, there is concern that any
      statements given by the defendant were not intelligently given.

      More importantly, this Court finds that the interview with the defendant by
      Agent Faulkner was primarily to determine the justification of the shooting
      by the police officer. But, the interview of the defendant also included
      questions about the entire event on the night of the shooting. Agent
      Faulkner testified that defendant Luellen “was not a suspect of the TBI”
      although Mr. Luellen was referred to as the “subject” in this hearing and the
      Moscow Police officer was referred to as the “victim.” However, Agent
      Faulkner, as an agent for the State of Tennessee, knew or should have
      known that charges would likely be brought against Mr. Luellen and that
      Mr. Luellen was a suspect of the State and should have given the defendant
      his rights under Miranda. This Court cannot accept the distinguishment
      that a TBI agent in this situation can only consider his interview of the
      defendant for purposes of only considering whether or not the questions
      would only be used in the shooting investigation. The entire event on April
      20, 2015 was being investigated at the time of the interview with the
      defendant, and the defendant should have been given his Miranda
      warnings. The statement of Mark Luellen given on April 21, 2015 should
      be suppressed.

       The State sought and obtained the trial court’s permission to apply for an
interlocutory appeal to this Court. The State then filed an application with this Court
under Rule 9 of the Tennessee Rules of Appellate Procedure, which this Court granted.
This appeal followed.

                                        Analysis

        On appeal, the State argues the trial court erred when suppressing the statement
given by the defendant to the TBI because the defendant freely and voluntarily rendered
the statement while not in custody. The defendant argues the trial court properly granted
the motion because he was not free to go home and under the influence of prescription
drugs at the time he gave the statement. Upon review, we conclude the defendant was
                                          -5-
not in custody at the time he spoke with TBI agents, so the trial court erred when granting
the motion to suppress on the basis the defendant should have been given Miranda
warnings. With respect to the voluntariness of the statement, the trial court did not make
any findings of fact or conclusions of law in this regard, so we remand this matter to the
trial court for proceedings consistent with this opinion.

       The standard of review applicable to suppression issues involves a mixed question
of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). “[A] trial court’s
findings of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” State v. Cox, 171 S.W.3d 174, 178 (Tenn. 2005) (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996) (internal quotation marks omitted). The Tennessee Supreme
Court has explained this standard as follows:

       Questions of 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. The party prevailing in the trial court 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 that evidence. So long as the greater weight of the
       evidence supports the trial court’s findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23. However, the trial court’s application of law to the facts, as a
matter of law, is reviewed de novo, with no presumption of correctness. State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000).

I.     Custodial Interrogation

       The Fifth Amendment to the United States Constitution, applicable to states
through the Fourteenth Amendment, states that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” Similarly, the Tennessee Constitution
states “that in all criminal prosecutions, the accused . . . shall not be compelled to give
evidence against himself.” Tenn. Const. art. I, § 9. If a suspect is in police custody “or
otherwise [has been] deprived of his freedom of action in any significant way,” the police
must first inform him of his Fifth Amendment rights for any subsequent confession to
later be admissible as substantive evidence. Miranda v. Arizona, 384 U.S. 436, 444
(1966). In this regard, the United States Supreme Court has said, “Prior to any
questioning, the person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.” Id. These rights may be
voluntarily, knowingly, and intelligently waived. Id.

                                            -6-
       The Miranda decision only applies “to the questioning of an individual who has
been taken into custody or otherwise deprived of his freedom by the authorities in a
significant way.” State v. Dailey, 273 S.W. 3d 94, 102 (Tenn. 2009) (quoting Miranda,
384 U.S. at 478) (internal quotation marks omitted). Accordingly, Miranda warnings are
only required when a suspect is (1) in custody and (2) subjected to questioning or its
functional equivalent. State v. Walton, 41 S.W. 3d 75, 83 (Tenn. 2001). In the absence
of either, Miranda requirements are not necessitated. Id.

       The test for determining if an individual is in custody for Miranda purposes is
“whether, under the totality of the circumstances, a reasonable person in the suspect’s
position would consider himself or herself deprived of freedom of movement to a degree
associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996).
This is a fact-specific inquiry, and our Supreme Court has provided the following non-
exhaustive list of relevant factors:

       [T]he time and location of the interrogation; the duration and character of
       the questioning; the officer’s tone of voice and general demeanor; the
       suspect’s method of transportation to the place of questioning; the number
       of police officers present; any limitation on movement or other form of
       restraint imposed on the suspect during the interrogation; any interactions
       between the officer and the suspect, including the words spoken by the
       officer to the suspect, and the suspect’s verbal or nonverbal responses; the
       extent to which the suspect is confronted with the law enforcement officer’s
       suspicions of guilt or evidence of guilt, and finally, the extent to which the
       suspect is made aware that he or she is free to refrain from answering
       questions or to end the interview at will.

Id.

       Here, the State argues the trial court erred when granting the defendant’s motion to
suppress because it wrongly relied on its finding the TBI agents should have known the
State would bring charges against the defendant rather than considering whether the
defendant was in custody at the time of questioning, thereby triggering the requirements
of Miranda. In response, the defendant contends the trial court properly granted his
motion to suppress because the defendant was incapacitated and hospitalized at the time
of questioning, so not free to leave. Based on our review of the record and consideration
of the Anderson factors, we agree with the State.

       Agents Faulkner and Fletcher interviewed the defendant at 10:30 a.m. in his
hospital room. The interview lasted approximately thirty minutes, and the defendant was
so “excited to share his side of the story” that after waking, he immediately began
                                           -7-
recounting the events leading to his hospitalization. The defendant was already in the
hospital at the time the agents arrived and had been transported there the prior day by
ambulance. There were two TBI agents present for the interview. The agents advised the
defendant he was not under arrest, and they did not restrain him or otherwise prevent him
from leaving the hospital room during questioning. There were not any officers in the
defendant’s hospital room to prevent him from leaving. The defendant willingly
responded to the questions posed by the TBI agents despite being told he did not have to
participate in the interview. Agent Faulkner believed the defendant understood what he
was saying during the interview and testified during the suppression hearing that the
defendant’s brother confirmed the defendant understood his statements.

        It does not matter for analysis of the defendant’s Miranda claim that, due to his
wound and subsequent surgery, the defendant might not be able to leave the hospital
room unless a person or persons rolled his bed out of the room. That a police officer’s
shooting of the defendant is a link in the facts leading to the defendant’s hospitalization
in this case does not equal custodial interrogation. We make no conclusion, however, as
to whether the limitations of the defendant’s ability to be ambulatory affected the
voluntariness of his statements to the TBI agents. We reserve ruling on that after it might
be addressed on remand.

       The trial court erred, as a matter of law, by suppressing the defendant’s statement
based on its finding the questioning agents should have known the State would eventually
bring charges against the defendant. Law enforcement officers must only adhere to the
requirements of Miranda when questioning an individual who is in custody. Whether the
individual being questioned may also be the subject of a criminal investigation against
whom the State will eventually bring charges is irrelevant. See Anderson, 937 S.W.2d at
851 (holding the “test to determine whether an individual is in custody for purposes of
Miranda is objective from the viewpoint of the individual being questioned, and [the]
unarticulated, subjective view of law enforcement officials that such individual is not a
suspect is irrelevant.”).

        The evidence preponderates against the trial court’s suppression of the defendant’s
statement. The trial court found the defendant’s brother, Michael Lullen, not to be a
credible witness, and we will not disturb this finding on appeal. Based on the evidence
presented by the State during the suppression hearing, including the testimony of Agent
Faulkner, Miranda warnings were not required because the defendant was neither in
custody nor would a reasonable person in his position have considered himself deprived
of freedom of movement to a degree associated with formal arrest. The State is entitled
to relief under this theory.



                                           -8-
II.    Voluntariness of the Statement

        Although we conclude the statement was not the result of a custodial interrogation,
in order to be admissible, it must have been voluntarily given. See Arizona v. Fulminate,
499 U.S. 279, 286-88 (1991); see also State v. Climer, 400 S.W.3d 537, 568 (Tenn. Ct.
App. 2013) (stating “the voluntariness test remains distinct from Miranda”). A
confession is involuntary if it results from “‘any sort of threats or violence, . . . any direct
or implied promises, however slight, . . . [or] by the exertion of any improper influence.’”
State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000) (quoting Bram v. United
States, 168 U.S. 532, 542-43 (1897)). When evaluating the voluntariness of a statement,
“the essential inquiry . . . is whether a suspect’s will was overborne so as to render the
confession a product of coercion.” Climer, 400 S.W.3d at 568. A defendant’s subjective
perception alone is insufficient to support a finding that a confession was not voluntary.
State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996). Instead, “coercive police activity is a
necessary predicate to finding that a confession is not voluntary.” Id.

        When evaluating the voluntariness of a statement, courts consider the totality of
the circumstances, including “characteristics of accused and details of the interrogation.”
Climer, 400 S.W.3d at 568. Relevant factors include:

       [T]he age of the accused; his lack of education or his intelligence level; the
       extent of his previous experience with the police; the repeated and
       prolonged nature of the questioning; the length of the detention of the
       accused before he gave the statement in question; the lack of any advice to
       the accused of his constitutional rights; whether there was an unnecessary
       delay in bringing him before a magistrate before he gave the confession;
       whether the accused was injured[,] intoxicated[,] or drugged, or in ill health
       when he gave the statement; whether the accused was deprived of food,
       sleep[,] or medical attention; whether the accused was physically abused;
       and whether the suspect was threatened with abuse.

Id. “Before an accused is entitled to have his statement suppressed on the grounds that he
was under the influence of alcohol and/or narcotic drugs, it must be established that the
accused’s faculties were so impaired that the statement could not be considered the
product of a ‘free mind and rational intellect.’” State v. Bornfriend, No. 02C01-9708-
CC-00297, 1998 WL 641336, at *4 (Tenn. Crim. App. Sept. 21, 1998) (applying this
standard to the influence of prescription medication on a defendant) (quoting Vandergriff
v. State, 409 S.W.2d 370, 373 (Tenn. 1966)). The applicable test is “whether, at the time
of the statement, the accused was capable of making a narrative of past events or of
stating his own participation in the crime.” State v. Morris, 24 S.W.3d 788, 805-06
(Tenn. 2000).
                                             -9-
        In the present matter, the State contends that while the trial court questioned the
voluntariness of the defendant’s statement, it granted the motion to suppress based solely
on Miranda issues. Nevertheless, the State contends the evidence preponderates against a
finding that the defendant’s statement was involuntarily. In response, the defendant asks
this Court to uphold the suppression order because, based on the totality of the
circumstances, the defendant did not freely and voluntarily give the statement. We agree
the trial court did not make any findings of facts or conclusions of law regarding the
voluntariness of the defendant’s statement and instead merely voiced concern that “the
statements made by the defendant were not intelligently given.” Accordingly, we remand
this matter to the trial court for full hearing and additional findings of fact in this regard.

                                         Conclusion

        Based upon the foregoing and the record as a whole, we reverse the judgment of
the trial court regarding the necessity of Miranda warnings and remand this matter to the
trial court for full hearing and additional findings of fact as to the voluntariness of the
defendant’s statement.



                                               ____________________________________
                                               J. ROSS DYER, JUDGE




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