           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                Assigned on Briefs January 6, 2015

                      STATE OF TENNESSEE v. JOHN D. BAILEY

                        Appeal from the Circuit Court for Dyer County
                        No. 11-CR-398    Russell Lee Moore, Jr., Judge


                   No. W2014-00705-CCA-R3-CD - Filed March 27, 2015


Appellant, John D. Bailey, was convicted by a jury of first degree premeditated murder and
sentenced to life imprisonment. On appeal, he argues that the trial court erred by failing to
suppress his statement to the police and that the evidence was insufficient to support his
conviction. Following our review, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

James E. Lanier, District Public Defender (at trial and on appeal); and Sean Patrick Day,
Assistant District Public Defender (on appeal), Dyersburg, Tennessee, for the appellant, John
D. Bailey.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.

                                                  OPINION

       This case concerns the shooting death of Helen Robertson in Newbern, Tennessee,
on August 31, 2011. Appellant was the roommate of Tracy Byrd,1 who had an ongoing
dispute with Ms. Robertson concerning the care of K.H.,2 Ms. Robertson’s daughter and Ms.
Byrd’s stepdaughter. Appellant made an inculpatory statement to the police, which he
subsequently moved to suppress. The trial court held a suppression hearing and thereafter

       1
           The record often refers to Ms. Byrd as Tracy Ham, a former married name.
       2
           It is the policy of this court to protect the identity of minors.
denied appellant’s motion to suppress. The case proceeded to trial, where the jury found
appellant guilty of premeditated first degree murder.

                                            I. Facts

                                   A. Suppression Hearing

        Tracy Byrd testified that on September 1, 2011, she went to Northview Middle School
to pick up two children for orthodontist appointments. While at the school, the principal told
her about Ms. Robertson’s death and asked Ms. Byrd to stay at the school to talk to the
police. The police talked to her for a few minutes and then asked her to go to the police
department for questioning. She agreed to go and drove her own vehicle to the police
department. Ms. Byrd testified that the police asked her about her whereabouts the previous
day and whether she could prove where she was at any point. She gave her consent for
Investigator Greg Barr to retrieve Walmart receipts from her vehicle, which showed that she
was at the Dyersburg Walmart the night before. Ms. Byrd said that the police asked for her
consent to search her house, which she gave. She stated that the police told her that she “had
to go straight back to [her] house” and that she could not first pick up her children from
school. She said that she went to her house and that the police were already there.

         Ms. Byrd testified that she assumed appellant was in the house at that time but that she
did not see him. She further testified that when she asked the police again about picking up
her children, she was told that she could not leave and that she could not use the telephone
to call a friend to pick up the children. Investigator Rodney Wright then told her that she had
to go back to the police station with him, and he had her sit in the front seat of his vehicle on
the way to the station. Ms. Byrd testified that she asked whether she could drive her own
vehicle but was told that she could not. She said that she was placed in a room at the police
department and, soon after arriving, was shackled to a chair. She stated that they moved her
to different rooms over the course of the evening but would re-shackle her after each move.

        Ms. Byrd testified that the police finally interviewed her “around three in the
morning,” when she had “been there all day and most of the night with nothing to eat and
nothing to drink.” She said that she did not leave the police department until after 6:00 a.m.
on September 2. Ms. Byrd stated that while she was at the police department, she
occasionally saw glimpses of appellant, who was “handcuffed and shackled the same way
that [she] was.” She further stated that Investigator Wright told her that “he would have
Child Services come pick [her] kids up if [she] didn’t tell them what they wanted [her] to tell
them.” She testified that he convinced her to talk to appellant by telling her that the only way
that she would see her children again was to “tell [appellant] to tell [the police] what they
wanted to hear.” She said that Investigator Wright led her to an office where appellant was
sitting and that she told appellant, “‘John, please tell them whatever they want to know, what

                                               -2-
they want to hear, because he said I can’t go home to my babies if you don’t.’” Ms. Byrd
also said that Investigator Wright told her that she would get a lethal injection “if [she] didn’t
watch what [she] was doing.”

       On cross-examination, Ms. Byrd testified that K.H. was her ex-husband’s daughter
and that the victim was K.H.’s mother. However, K.H. actually lived with Ms. Byrd, despite
the fact that she was no longer married to K.H.’s father. Ms. Byrd agreed that she had an
ongoing dispute with the victim about the victim’s treatment of K.H. She further agreed that
appellant, who had been her roommate, was aware of the disagreement. Ms. Byrd testified
that she went to the school to pick up her children for orthodontist appointments but that she
had to leave them at the school. She said that she was also responsible for picking up her
nephew from the high school in the afternoon on a daily basis. Ms. Byrd agreed that she
signed the consent to search her house at 3:00 p.m. on September 1. She said that she then
went straight to her house because the police told her not to pick up her children and nephew
from school. Ms. Byrd testified that a police officer picked up her eldest daughter from
school and that her eldest daughter used Ms. Byrd’s vehicle to pick up the younger daughters.
She said that she would be surprised to learn that the recording of her statement to police
began at 8:45 p.m. and ended at 9:32 p.m. She claimed that she was unaware of the passage
of time because of her fear.

       Newbern Police Investigator Greg Barr testified that Tracy Byrd was the first suspect
with whom he made contact in the investigation of the victim’s murder. He described Ms.
Byrd as “very cooperative.” He said that he was able to “[r]ule[] her out as the actual trigger
person” quickly because she was able to prove she was at Walmart around the time of the
shooting. Investigator Barr testified that Ms. Byrd signed consent forms for the police to
search both her vehicle and her home. When the police arrived at her house, appellant met
them at the door. Investigator Barr stated, “[Appellant] also agreed that he had no problem
with us coming in and he actually accompanied us in the house and was even helping us tell
which . . . room was what as we started to look in the house.” Investigator Barr testified that
they found Remington-Peters twelve-gauge shotgun shells in Ms. Byrd’s dresser that
“appeared to be very consistent” with the shell found in the murder weapon. Both the shell
in the murder weapon and those found in Ms. Byrd’s dresser were Remington-Peters, with
green plastic and gold brass. Investigator Barr acknowledged that the shell from the murder
weapon was loaded with double-aught buckshot, however, while those found in Ms. Byrd’s
dresser were number four shot. He stated that they did not know the shell from the murder
weapon was double-aught buckshot until after they discovered the shells at Ms. Byrd’s
house.

        Investigator Barr testified that he asked appellant whether “he would consent to come
up to the police department to talk to us.” He further stated that he explained to appellant
that he was not under arrest. Investigator Barr said that appellant agreed to go to the police

                                               -3-
station and also agreed to ride with Officer Robert Harrison to the station. Investigator Barr
acknowledged that appellant consented to go to the police station at 3:40 p.m. and that the
police did not begin interviewing him until 10:39 p.m. He explained that appellant was in
a courtroom adjacent to the police department during those seven hours. Appellant was alone
for much of the time. Investigator Barr testified that appellant was not handcuffed or
shackled during those seven hours. He said that he made clear to appellant that he was not
under arrest. Investigator Barr said that the courtroom had an unlocked door to the outside
and that “[a]ll he had to do is leave.” Investigator Barr testified that appellant was not
detained until immediately after Ms. Byrd finished her recorded statement, which was at 9:32
p.m. He explained that he and his partner had an unrecorded interview with Ms. Byrd from
5:44 p.m. until 7:43 p.m., when they took a short break, and then they recorded Ms. Byrd’s
statement from 8:45 p.m. to 9:32 p.m. Both Ms. Byrd and appellant were detained after Ms.
Byrd’s statement. Investigator Barr testified that they began interviewing appellant at 10:39
p.m. He said that appellant denied any involvement in the victim’s murder until the police
brought Ms. Byrd into the room. Investigator Barr testified that Ms. Byrd told appellant,
“‘John, tell them the truth. I’ve already told them what you did to Helen.’” Following that
confrontation, appellant “began to tell [the police] in detail what he had done.” He said that
Ms. Byrd was not restrained when they brought her into the room. He could not recall her
saying anything to appellant about losing her children. Investigator Barr testified that
Investigator Wright told Ms. Byrd that if she did not have anything to do with Ms.
Robertson’s death, then she should continue telling them about what appellant had done
because she would not be with her children if she were in jail on a homicide charge. He
further testified that Ms. Byrd’s allegations that she was threatened with a lethal injection
were “completely false.”

        On cross-examination, Investigator Barr testified that the homicide report was called
in at 10:46 p.m. on August 31. To his knowledge, no news reports were available about the
homicide on September 1. Investigator Barr recalled that after Ms. Byrd gave her consent
for the police to search her house, she told them that she was going to pick up her children
and take them to her brother’s house before she returned home. He said that they began
searching her house at 3:11 p.m. They transported appellant to the police department at 3:40
p.m., and Ms. Byrd returned home shortly thereafter. Investigator Barr said that Ms. Byrd
wanted to leave her vehicle at her house for her eldest daughter. He stated that Investigator
Wright transported Ms. Byrd to the police station, and they settled her into the intoximeter
room. She was not restrained in any manner. They later interviewed her in Investigator
Barr’s office. She signed the Miranda rights waiver at 5:44 p.m. They took a break from
7:43 p.m. to 8:45 p.m. and then recorded her statement from 8:45 p.m. to 9:32 p.m.
Investigator Barr testified that Ms. Byrd told them that appellant “had taken care of Helen.”
He agreed that Ms. Byrd gave them details of the crime that were not common knowledge,
such as the fact that the victim was in front of her living room window and that the murder
weapon had misfired. After her statement, both Ms. Byrd and appellant were detained.

                                             -4-
Appellant gave his recorded statement from 3:13 a.m. to 3:49 a.m. on September 2, and Ms.
Byrd was transported home at 4:31 a.m. Both Ms. Byrd’s and appellant’s statements were
admitted into evidence as exhibits to the hearing.

        William Keith Ozment, formerly a sergeant with the Newbern Police Department,
testified that on September 1, he saw appellant in the courtroom adjacent to the police
department. Mr. Ozment said that he “talked small talk” with appellant and that appellant
was not restrained at the time. The conversation lasted fifteen to twenty minutes. That
evening, the investigators asked Mr. Ozment to restrain appellant. He did not know what
time exactly but thought it was between 7:30 and 9:00 p.m. Mr. Ozment said that there was
a door in the courtroom that opened on to Main Street and that the door was always unlocked
from the inside. Mr. Ozment testified that he did not see Chief Dunivant at the police
department that day and that neither Chief Dunivant nor Chief Barnes asked him to restrain
appellant.

        Newbern Police Officer Robert Harrison testified that at the time of the victim’s
murder, he worked for the West Tennessee Violent Crime and Drug Task Force. Investigator
Barr asked him to come to the scene of the victim’s murder to assist in the investigation. He
said that he transported appellant to the police department and that appellant was unrestrained
and sat in the front seat. Officer Harrison stated that he took appellant to the courtroom and
sat with him for awhile. Officer Harrison played music on his telephone, and appellant made
comments about the music Officer Harrison played and about his health. Officer Harrison
left after receiving a work-related call. He let Investigator Wright know where appellant
was.

       Newbern Police Investigator Rodney Wright testified that a twelve-gauge shotgun was
located at the murder scene. He opened the action enough to see that the shell inside was a
Remington-Peters shell and that it was green plastic with “high brass.” He did not notice that
it was double-aught buckshot until a couple of days later. Investigator Wright testified that
the shells found at Ms. Byrd’s home were also green plastic, high brass, Remington-Peters,
but those were filled with number four shot. Investigator Wright said that appellant was not
developed as a suspect until Ms. Byrd gave her statement. He further stated that no one was
assigned to guard appellant while he was in the courtroom. Investigator Wright testified that
he told Ms. Byrd, in response to her saying that she wanted to go home to her children, that
she should tell the truth if she wanted to see her children.

        On cross-examination, Investigator Wright testified that Ms. Byrd drove her own
vehicle to her house after she consented for the police to search the house. He recalled that
she first went to pick up children from school and took them to her brother’s house. Later,
she wanted to leave her vehicle at the house for her eldest daughter to use, which was why
she rode with Investigator Wright to the police department.

                                              -5-
        Appellant testified that he did not feel that he had a choice about whether to go to the
police department on September 1. He stated that approximately thirty minutes after he
arrived, Sergeant Ozment placed leg shackles on him, saying that the Chief had ordered him
to restrain appellant. Appellant said that he was restrained the entire time prior to his
interview and that he was not given food during that time. When he was moved to the
investigator’s office, Investigator Wright offered him a snack. Appellant said that he asked
for a Coke because he was “hypoglycemic or anemic” and would have needed more food
than just a snack. Appellant recalled that the only time that he saw Ms. Byrd while at the
police department was when the police brought her to the office. She was “leg ironed” and
told him, “‘Please don’t take my babies away from me.’” Appellant testified that at that
point, he decided to “tell them what they wanted to hear,” even though neither he nor Ms.
Byrd had anything to do with the murder. Appellant also testified that he had not eaten in
more than twelve hours and that he was not able to read his Miranda warning because he
needed glasses to read.

        The trial court took the matter under advisement and subsequently filed a written order
denying appellant’s motion to suppress his statement to the police. In its order, the trial court
specifically found that the police officers’ testimonies were credible and that appellant’s and
Ms. Byrd’s testimonies were not. The trial court also found that appellant was not arrested
until after Ms. Byrd’s statement was completed and that there was probable cause to arrest
him at that point.

                                            B. Trial

        The State’s first witness at trial was Thomas Weakley. Mr. Weakley testified that he
represented the victim in a custody dispute concerning K.H. He explained that K.H. was the
victim’s daughter but that K.H.’s father, Jeremy Ham, had custody of K.H. The victim had
visitation rights every other weekend. However, K.H. actually lived with Tracy Byrd, who
was Mr. Ham’s ex-wife. Ms. Byrd had moved to intervene in the custody dispute and sought
to have custody of K.H. Mr. Weakley testified that the victim “vehemently objected” to Ms.
Byrd’s having custody of K.H.

       On cross-examination, Mr. Weakley testified that there had been allegations that the
victim abused K.H. However, the Department of Children’s Services investigated and “made
no finding that anything had happened.”

       William Keith Ozment testified that at the time of trial, he was the Chief of Police in
the town of Obion. At the time of the victim’s murder, he was an officer with the Newbern
Police Department. Chief Ozment testified that he was dispatched to Ms. Robertson’s house
on Patty Drive in Newbern at 10:46 p.m. on August 31, 2011. He said that as he walked
toward the house, he observed a shotgun lying in the front yard. When he entered through

                                               -6-
the front door, he saw brain matter on the floor, walls, and ceiling. The victim was lying to
the left of the door, face down in a pool of blood. Chief Ozment explained that the houses
on Patty Drive were close together and that Highway 211 ran behind the victim’s house. It
was dark at the time of the shooting, however, and the street lights on Patty Drive were
farther down the road. He testified that no one reported seeing anyone suspicious in
connection with the murder.

        On cross-examination, Chief Ozment testified that he encountered appellant on
September 1 in the courtroom adjacent to the police department. He said that he assumed
that the investigators had placed appellant in the courtroom to wait while they interviewed
another suspect. Chief Ozment stated that he did not “feel the need” to tell appellant that he
was free to go at any time because appellant was not restrained in any manner and was in a
room with an unlocked exterior door.

       Investigator Rodney Wright testified that he arrived at the crime scene at 11:00 p.m.
on August 31, 2011. He said that based on his observations, he believed that the shooter was
outside of the victim’s house and fired through the living room window. The shot went
through the blinds on the other side of the window and struck the victim in the head.
Investigator Wright found gunpowder burns on the window, leading him to believe that the
gun was fired very close to the window. He further believed that the victim had been sitting
at a computer desk in front of the window, with her back to the window, when she was shot.
He explained that the entry wound was on the back of her head.

        Investigator Wright testified that the murder weapon was a single-shot, break action,
twelve-gauge shotgun. He opened the action and prevented the gun from ejecting the shell
inside. Investigator Wright said that the primer had been struck on the shell. He described
the shell as having green plastic and “an extremely long piece of brass,” called “high brass,”
which was uncommon in modern shells. The shell was a Remington-Peters Magnum double-
aught buckshot. He explained that a shell loaded with double-aught buckshot contains nine
pellets that are “the size of the end of [his] pinky.”

        Investigator Wright further testified that the police were aware of the ongoing custody
dispute concerning K.H. and that he developed Tracy Byrd as a suspect due to that dispute.
He said that on September 1, he contacted K.H.’s school to determine whether K.H. was
present and whether she knew that her mother had been killed. The principal told him that
K.H. was at school and did not appear to know about her mother. The principal called him
later to inform him that Ms. Byrd was at the school to pick up K.H. and one of her daughters.
Investigator Wright and Investigator Greg Barr went to the school to talk to Ms. Byrd. Ms.
Byrd told the investigators that she had not known about the victim’s death until the school
principal told her. The investigators interviewed Ms. Byrd and found that she had an alibi


                                              -7-
for the time of the murder — she had been at the Dyersburg Walmart and had receipts as
proof.

       Investigator Wright testified that Ms. Byrd gave her consent for the police to search
both her vehicle and her house. When they arrived at her house, appellant answered the door.
Investigator Wright said that they asked him whether he “ha[d] a problem” with the police
searching the residence. He indicated that he did not, and he helped the police by pointing
out which rooms belonged to whom. Investigator Wright said that they found Remington-
Peters shotgun shells in appellant’s dresser that appeared to be consistent with the shell he
had found in the murder weapon. However, the shells from the house were number four
shot. He said that he did not know at the time he searched the house that the shell from the
murder weapon was double-aught buckshot.

        Investigator Wright said that the police asked both Ms. Byrd and appellant to come
to the police station to discuss the case. They both agreed and were transported to the police
station. Ms. Byrd indicated in her interview that she had knowledge of the victim’s murder.
Thereafter, she and appellant were both detained. Investigator Wright testified that they
subsequently interviewed appellant. He initially denied any involvement, but after Ms. Byrd
spoke with him, he confessed to killing the victim. A recording of appellant’s admission was
played for the jury.3 Appellant told Investigators Wright and Barr that he “had to end Helen”
so that K.H. could “start to heal.” He said that he went to the victim’s house with a single-
shot shotgun and had shells loaded with double-aught buckshot. He walked to the victim’s
house, avoiding roads so that he would not be seen with the shotgun. Appellant said that he
made sure the victim was sitting at her computer in the living room then loaded his shotgun.
He further said, “And before I pull[ed] the trigger, I said, ‘[K.H.],’ and the gun did not
work.” He said that the hammer fell but the shell did not detonate. He reloaded under a tree,
returned to the window, and “said the same thing about [K.H.].” He pulled the trigger, and
the gun fired. When asked whether he confirmed that he had shot the victim, appellant
replied that he “felt it in [his] heart.” Appellant said that he left the weapon at the scene
because it had no value to him and “[p]lus to give the police something they could actually
work with[.]” He told the investigators that they would not find DNA because he wore long
sleeves and long gloves. He later burned the clothing he wore in a bucket. He had also
hidden a shotgun shell at a golf course and gave the investigators detailed directions to find
the shell, along with a map.




        3
          The compact disc containing the recording of appellant’s statement is not included in the appellate
record. Indeed, none of the trial exhibits have been included in the appellate record. However, a transcript
of appellant’s statement was made an exhibit to the suppression hearing. It is from this transcript that we
have gleaned the substance of appellant’s admission.

                                                    -8-
       On cross-examination, Investigator Wright agreed that the police report indicated that
the number four shot shotgun shells were found in Ms. Byrd’s bedroom, not appellant’s. He
explained that appellant’s personal items were in the drawer. Investigator Wright recalled
that while appellant was at the police station, he offered to get appellant something to eat,
but appellant only wanted a soft drink. He further recalled that Ms. Byrd’s speaking to
appellant was the turning point in his interview with appellant. He said that Ms. Byrd told
appellant to tell the police the truth and that she had already told the police what he had told
her. When asked whether Ms. Byrd included “so I don’t go to jail and lose my kids,”
Investigator Wright said, “Well, she probably did tell him that because she was surely afraid
of being arrested and charged with this murder because she had . . . told things about the
crime scene.”

       On re-direct examination, Investigator Wright testified that the police report indicated
that appellant claimed possession of the number four shot shotgun shells found in Ms. Byrd’s
bedroom.

       Investigator Greg Barr testified that after interviewing appellant, he followed the map
that appellant drew to find the shotgun shell that appellant discarded. Investigator Barr said
that he successfully found the shell and that it was a Remington-Peters twelve-gauge shell
with green plastic and gold brass.

        Tennessee Bureau of Investigation (“TBI”) Special Agent Alex Brodhag testified that
he examined the murder weapon in this case. He test-fired the shotgun eight times, but the
gun only successfully fired three of those times. He stated that he compared the fired twelve-
gauge shell that he received from the police with the fired shells from the test-firing process
and was able to determine that the fired twelve-gauge shell had been fired in the murder
weapon. Agent Brodhag testified that he also received an unfired shotgun shell from the
police that had a firing pin impression on it. He determined that the firing pin impression on
the unfired shotgun shell was created by the murder weapon.

       Dr. Karen Elizabeth Chancellor testified that she performed an autopsy on the victim’s
body on September 2, 2011. Dr. Chancellor found that the victim suffered a shotgun wound
the right side of her head, in the temple area. Dr. Chancellor testified:

       [The wound] was a roughly round defect but because of the energy dissipated
       by the shotgun wound blast in the head, it had resulted in major destruction
       wounds radiating from this entrance defect. Fractures of all facial bones,
       fractures of the cranial vault. It had resulted in avulsion or removal of all of
       the brain tissue in her head.



                                              -9-
Dr. Chancellor further stated that her office did not receive all of the victim’s brain tissue
because “part of the brain was probably on the walls of the building where she was.” She
agreed that the “force of the shot caused the brain to be completely removed from the skull.”
Dr. Chancellor testified that the victim could not have survived the wound. The State rested
its case following Dr. Chancellor’s testimony.

       Appellant testified on his own behalf. He stated that he was a disabled Army veteran
and had served in combat in Operation Desert Shield and Desert Storm. Appellant said that
he lived with Tracy Byrd and that K.H. also lived with them. He testified that he observed
that K.H. was “terrified and scared” of the victim, her biological mother, and that he had seen
K.H. with bruises and knocked out teeth after visiting her mother.

        Appellant testified that he did not kill the victim. He said that the police pressured
him and told him details about the crime. He also said that they told him that either he or Ms.
Byrd would be arrested for murder. While he knew that Ms. Byrd had nothing to do with the
murder, he considered the fact that she was a mother and was responsible for her daughters.
Appellant stated that he “happened to see this crime happen at a distance,” which is why
certain details were included in his statement. Appellant said that Investigator Barr began
threatening him with lethal injection while the police were searching Ms. Byrd’s house. He
testified that the police did not give him a choice about coming to the police station.
Appellant stated that he was shackled to a table the entire time that he was waiting to be
interviewed. He further stated that he was never offered food and that he was only able to
drink water from the faucet when he went to the restroom. He said that he was not thinking
clearly when he gave his statement because he was hypoglycemic and had not eaten for over
twelve hours. He testified that he changed his mind about denying involvement when the
police brought Ms. Byrd into the office where he was being interviewed. He said that she
was crying and was handcuffed and in leg irons. He recalled her saying, “‘Please don’t take
my babies away from me.’” Appellant clarified that he could not remember her exact words.
He said that he decided that he would give a story to the police that they would believe so
that they would “back off” Ms. Byrd.

       Appellant testified that he was walking down the victim’s street on the night of her
murder and saw someone in her yard. He saw the person trying to fire the shotgun, although
he was at such a distance that he did not realize what they were doing. He saw the person
walk away and stand under a tree and then return to the yard. The person then fired the
shotgun. Appellant testified that after he witnessed the shooting, he walked back to his truck
and drove home. He subsequently decided to go for a walk at the golf course. As he was
resting from his walk under a tree, he heard someone running nearby. He saw the person
pause and then run away. Appellant said that although he could not say whether it was the
same person he had earlier seen in the victim’s yard, it resembled that person. Both were tall


                                             -10-
and slender and wore dark clothing. Appellant testified that he walked over to the area where
the person had paused and found a shotgun shell on the ground.

        Appellant testified about specific items in his statement that were untruthful. He said
that while in the statement he claimed that the shotgun had no value, he would never actually
own a gun that was not valuable. He also told the police that he knew a shortcut from Ms.
Byrd’s house to the victim’s house but that there were no such shortcuts in reality because
the victim’s house was on a highway. Appellant testified that he was unable to tell the police
what time something occurred because he did not do that thing. He explained that he always
knew what time it was because of his military training. Appellant said that he knew about
the victim being at her computer because she was always at her computer at night. He also
said that it would have been impossible for him to see her eyes through the closed blinds, like
he had claimed to have done in his statement. He stated that he told the police about saying
K.H.’s name before firing the gun because that is what he would have done had he actually
committed the crime. He also said that he would never have left a gun lying in a yard
because he was “very safety conscious.” Appellant testified that if he had actually burned
clothing in a bucket as he told the police, the police would have seen the fire. He also stated
that anyone needed a burn permit to have a fire in the city limits.

       On cross-examination, appellant agreed that he saw someone fire a shot through the
window of the victim’s house but that he never told the police about that incident. He said
that they would not have believed him. Appellant stated that the police gave him details
about the crime, including that the ammunition used was double-aught buckshot.

       In rebuttal, the State called Investigator Greg Barr. Investigator Barr testified that he
and the district attorney general had gone at night to the golf course where the misfired
shotgun shell had been left. He said that there was no lighting in the area. When the general
stayed where the shell was found and Investigator Barr stepped away to the cart path,
Investigator Barr said that he was unable to see what the general was doing.

      Following the close of proof and deliberations, the jury convicted appellant as
charged, and he was sentenced to life imprisonment. This appeal follows.

                                         II. Analysis

                                   A. Motion to Suppress

        Appellant argues that the trial court erred by denying his motion to suppress his
statement to the police and any evidence collected as a result of that statement. In support
of his argument, appellant contends that he was arrested without probable cause and that his
statement was coerced. The State responds that appellant was not arrested until after Ms.

                                              -11-
Byrd gave a statement to the police implicating him, at which time there existed probable
cause, and that no coercive tactics were used. We agree with the State.

        In reviewing the trial court’s decision on a motion to suppress, we review the trial
court’s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008). In
doing so, we give deference to the trial judge’s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility 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.’” Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d
at 23). In reviewing the findings of fact, evidence presented at trial may “‘be considered by
an appellate court in deciding the propriety of the trial court’s ruling on the motion to
suppress.’” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003) (quoting State v. Walton, 41
S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the motion to suppress is afforded the
“‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that
may be drawn from that evidence.’” Northern, 262 S.W.3d at 748 (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000);
Odom, 928 S.W.2d at 23.

                                 1. Probable Cause to Arrest

        We begin with the proposition that “[b]oth the state and federal constitutions protect
against unreasonable searches and seizures; the general rule is that a warrantless search or
seizure is presumed unreasonable and any evidence discovered is subject to suppression.”
State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Our supreme court has recognized three
categories of police interactions with private citizens: “(1) a full-scale arrest, which requires
probable cause; (2) a brief investigatory detention, requiring reasonable suspicion of
wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification.”
Id. (citing State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)). “‘While arrests and
investigatory stops are seizures implicating constitutional protections, consensual encounters
are not.’” Id. (quoting State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006)).

        “Under the Tennessee Constitution, a seizure implicating constitutional protections
occurs only if, in view of all of the circumstances surrounding the encounter, a reasonable
person would have believed that he or she was not free to leave.” Nicholson, 188 S.W.3d at
657 (citing Daniel, 12 S.W.3d at 425). This is an objective, totality of the circumstances
standard that “does not vary depending upon the subjective state of mind of the particular
citizen being approached.” Daniel, 12 S.W.3d at 425. Circumstances that the court should
consider under this analysis include



                                              -12-
       the time, place and purpose of the encounter; the words used by the officer; the
       officer’s tone of voice and general demeanor; the officer’s statements to others
       who were present during the encounter; the threatening presence of several
       officers; the display of a weapon by an officer; and the physical touching of
       the person of the citizen.

Id. at 426.

        In this case, the police officers involved testified that appellant was not a suspect
when they initially encountered him at Tracy Byrd’s home. They portrayed him as
cooperative and stated that he consented to go with them to the police department.
Investigator Barr, in particular, testified that he explained to appellant that he was not under
arrest. The police officers testified that appellant waited, unrestrained, in a room that had an
unlocked exterior door. Appellant, however, testified that he was forced to go to the police
department and that he was shackled the entire time he waited to be interviewed. The trial
court explicitly found that the police officers were credible. Thus, the circumstances of
appellant’s encounter with police were that he consented to go to the police department, that
he was told he was not under arrest, and that he was unrestrained prior to the conclusion of
Tracy Byrd’s statement implicating him in the victim’s murder. Under these circumstances,
we conclude that a reasonable person would have felt free to leave until appellant’s detention
at or around 9:32 p.m., when Ms. Byrd’s statement ended and an officer restrained appellant.
While not presented as an issue in this appeal, we note that the police had probable cause to
arrest appellant at that point.

                                   2. Voluntary Confession

       Appellant claims that his statement to the police was the result of coercion because
the police threatened Ms. Byrd with lethal injection and with taking her children away from
her. The State responds that the trial court determined, based on witness credibility, that no
such threats were made to Ms. Byrd and that therefore appellant’s statement could not have
been coerced. We agree with the State.

       “The Fifth Amendment to the United States Constitution provides in part that ‘no
person . . . shall be compelled in any criminal case to be a witness against himself.’” State
v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005) (quoting U.S. Const. amend. V). “Similarly,
Article I, section 9 of the Tennessee Constitution states that ‘in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.’” Id. (quoting Tenn.
Const. art. I, § 9). “The test of voluntariness for confessions under Article I, § 9 of the
Tennessee Constitution is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996) (citations omitted). In our state, courts consider the totality of the circumstances to

                                              -13-
determine the voluntariness of a confession. Id. “[I]n order for a confession to be
admissible, it must be ‘free and voluntary; that is, must not be extracted by any sort of threats
or violence, nor obtained by any direct or implied promises, however slight, nor by the
exertion of any improper influence.’” Id. (quoting Bram v. United States, 168 U.S. 532, 542-
43 (1897)). Our supreme court has also adopted the federal due process standard for
voluntariness: “‘whether the behavior of the state’s law enforcement officials was such as
to overbear petitioner’s will to resist and bring about confessions not freely self-determined
a question to be answered with complete disregard of whether or not the petitioner in fact
spoke the truth.’” State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980) (quoting Rogers v.
Richmond, 365 U.S. 534, 544 (1961)).

        In this case, appellant maintains that he was coerced into confessing because the
police threatened Ms. Byrd with the death penalty and/or losing custody of her children and
then used Ms. Byrd to extract appellant’s confession. In support of his argument, he cites
U.S. v. Finch, 998 F.2d 349, 356 (6th Cir. 1993), in which the Sixth Circuit held that “threats
to arrest members of a suspect’s family may cause a confession to be involuntary.” However,
the trial court in this case made a factual determination that the police did not threaten Ms.
Byrd in any manner. Thus, in the absence of any threats, appellant’s argument cannot stand.


                               B. Sufficiency of the Evidence

        Appellant argues that the evidence was insufficient to support his conviction for
premeditated first degree murder. He contends that no evidence showed that he was “free
from . . . excitement and passion” and that no physical evidence connected him to the crime.

       The standard for appellate review of a claim of insufficiency of the State’s evidence
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
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 (1979) (emphasis in original) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

       On appellate review, “we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”
Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));

                                              -14-
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       The jury convicted appellant of premeditated murder. Tennessee Code Annotated
section 39-13-202(a) defines this category of first degree murder as “[a] premeditated and
intentional killing of another.”

       “[P]remeditation” is 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.

Id. at § 39-13-202(d). In reviewing the sufficiency of the evidence, we must determine
whether the State established the element of premeditation beyond a reasonable doubt. See
State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).
The presence of premeditation is a question of fact for the jury, and the jury may infer
premeditation from the circumstances surrounding the killing. State v. Young, 196 S.W.3d
85, 108 (Tenn. 2006); see State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Pike, 978
S.W.2d 904, 914 (Tenn. 1998).

        A defendant’s “state of mind is crucial to the establishment of the elements of the
offense”; thus, the State may prove premeditation by circumstantial evidence. State v. Brown,
836 S.W.2d 530, 541 (Tenn. 1992). Several factors support the existence of premeditation
including: “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

                                               -15-
weapon; preparations before the killing for concealment of the crime, and calmness
immediately after the killing.” Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-
42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)).

       Viewed in the light most favorable to the State, the evidence at trial showed that
appellant believed the victim was abusing K.H., her daughter. Appellant went to the victim’s
house, knowing that she would be sitting in front of her living room window, and attempted
to shoot her through the window using double-aught buckshot. His weapon misfired at least
once. He reloaded and then shot the victim. The force of the gunshot essentially exploded
the victim’s head. He then left the shotgun in the victim’s front yard and hid the unexploded
shot shell on the golf course. Appellant confessed his actions to the police, and he drew a
map to where he had hidden the shot shell. He also told the police that he wore gloves and
long sleeves. The jury, by its verdict, chose not to believe appellant’s testimony and his
attempts to explain away his confession. Appellant used a deadly weapon on an unarmed
victim, and he made preparations before the killing to conceal his crime by choosing to wear
gloves and long sleeves. He also concealed his crime by walking to the victim’s house
through fields so that no one would see him carrying a shotgun. In addition, during his
statement to the police, he did not give any immediately precipitating event that might have
moved him to a state of passion or rendered him incapable of premeditation, i.e. he did not
indicate that K.H. had just come home from the victim’s with new injuries, for example.
Therefore, we conclude that the evidence was sufficient to support appellant’s conviction for
premeditated first degree murder.

                                     CONCLUSION

      Based on the record, the briefs of the parties, and the applicable law, we affirm the
judgment of the trial court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




                                            -16-
