        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 16, 2013 Session

               STATE OF TENNESSEE v. TYLER JAMES REED

                  Appeal from the Criminal Court for Sumner County
                       No. 174-2010    Dee David Gay, Judge


               No. M2012-02542-CCA-R3-CD - Filed November 20, 2013


Appellant, Tyler James Reed, stands convicted of felony murder committed in the
perpetration of a burglary, aggravated burglary, and employment of a firearm with intent to
go armed during the commission of a dangerous felony. The trial court sentenced him to life
in prison for the murder conviction, six years for the aggravated burglary conviction, and six
years for the firearm conviction, with all sentences to be served consecutively in the
Tennessee Department of Correction. On appeal, appellant argues that (1) the trial court
erred by denying his motion to suppress all of the statements he made on October 30, 2009,
and the physical evidence obtained as a result of those statements; (2) the evidence was
insufficient to support the murder and aggravated burglary convictions; (3) the trial court
erred by failing to instruct the jury regarding self-defense and voluntary intoxication; and (4)
he is entitled to a new trial due to prosecutorial misconduct. Following our careful review
of the record, the arguments of the parties, and the applicable law, we affirm the judgments
of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R., and
C AMILLE R. M CM ULLEN, JJ., joined.

Margaret E. Garner and Carrie W. Gasaway (on appeal); John E. Herbison, Edward T.
Farmer, and Fletcher W. Long (at trial), Clarksville, Tennessee, for the appellant, Tyler
James Reed.

Robert E. Cooper, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; and C. Ronald Blanton, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                               OPINION

                                                 I. Facts

       This case involves the October 30, 2009 shooting death of Dickey Lassiter at his home
in Sumner County, Tennessee. Appellant was arrested for the murder of the victim after
being found in possession of a twelve-gauge shotgun while in a vehicle parked in the
victim’s driveway. The Sumner County grand jury indicted appellant for murder in the
perpetration of a burglary, aggravated burglary, and employment of a firearm with intent to
go armed during the commission of a dangerous felony.

                                   A. Motion to Suppress Hearing

        Prior to his trial, appellant moved to suppress all of the statements he made to law
enforcement officers throughout the day of October 30, 2009. In the motion, he argued, inter
alia, that his initial detention was illegal and that his statements were illegally obtained. He
further argued that any evidence obtained as a result of his seizure, including statements and
physical evidence, should be excluded as fruit of the poisonous tree.

       At the motion hearing, Sumner County Sheriff’s Deputy Christopher Magee testified
that on October 30, 2009, at approximately 4:20 a.m., he was dispatched to assist Sergeant
Aaron Pickard on a “shots fired” call at a Hilton Lane address. By the time he arrived at the
scene, he had been informed that the caller had seen “somebody laying [sic] in the floor,” but
the responding officers were initially unaware of the exact circumstances of the shooting.
Deputy Magee speculated that it might have been a suicide.

        Deputy Magee testified that he was the third officer to respond to the scene. He said
that the driveway to the house was “a good mile long,” and there was a stone wall through
which the driveway ran.1 Deputy Magee testified that Sergeant Pickard asked him to
investigate a blue car parked in the driveway. The car was pointed toward Hilton Lane, away
from the house, and it was on the Hilton Lane side of the stone wall. Deputy Magee parked
his patrol car “nose-to-nose” with the blue car and used his “take-down lights,” spot lights,
and head lights “to light up the car.” Deputy Magee testified that he saw movement in the
vehicle, so he approached it with his weapon drawn. He observed a white male, later
identified as appellant, “trying to get in between the seat and the floorboard” while “clutching
a black or dark colored long gun.” Deputy Magee ordered appellant to drop the weapon. He
complied ten to fifteen seconds after the command. Appellant exited the vehicle, and Deputy
Magee handcuffed him and performed a pat-down search for additional weapons. Deputy

       1
           Pictures entered into evidence show that the stone wall circled the house.

                                                    -2-
Magee said that appellant was wearing a coat and a toboggan, and he was not wearing
gloves. During the search, Deputy Magee found a cellular telephone, a wallet, and a single
glove. Deputy Magee testified that he handcuffed appellant “[t]o detain him until we figured
out what was going on.”

       Deputy Magee further testified that he did not advise appellant of his Miranda rights
because he “didn’t have any questions for him.” Deputy Magee admitted that he asked
appellant whether anyone else was with him, and he explained that he asked this question for
purposes of officer safety. Appellant answered, “‘No,’” to his question. Deputy Magee
placed appellant in the back of his patrol car and left the window partially opened. Deputy
Magee testified that several times, appellant said that “he needed to call his father.” The
second time, Deputy Magee told appellant to “just hang tight. There’s going to be some
people come [sic] talk to you.” Deputy Magee testified, “[A]t that point, [appellant] looked
up[,] and he said, ‘I didn’t mean to shoot that man[,] but I didn’t want to get shot.’” Deputy
Magee testified that appellant did not say anything else, and he did not ask appellant any
other questions. Deputy Magee did not process the vehicle for evidence, and he left the gun
where appellant had dropped it. He said that one of the detectives on the scene took custody
of appellant.

         The recording of the encounter between appellant and Deputy Magee, entered as an
exhibit to the motion hearing, elucidates the exact conversation that occurred, which varies
slightly from Deputy Magee’s testimony. When appellant asked what time it was, Deputy
Magee asked, “Why?” Appellant’s response, while difficult to hear, was that his mother
needed the car to go to work. Deputy Magee then asked, “And?” Appellant made a
response, and Deputy Magee told him the time, five o’clock, at that point. Several minutes
later, there was radio chatter regarding ambulance personnel and closing off the driveway to
the house. Appellant asked Deputy Magee about calling his father and said that he needed
to call his father because “it’s an emergency.” Deputy Magee responded, “So is what we’re
doing out here.” There was more radio chatter before appellant asked Deputy Magee, “Is he
going to be ok?” When Deputy Magee said, “I don’t know,” appellant stated, “I didn’t mean
to shoot that man, but I thought I was going to get shot myself.” Deputy Magee responded,
“Just stay put, alright?”

       On cross-examination, Deputy Magee testified that before appellant was placed in the
patrol car, Deputy Magee asked him what he was doing there. He further testified that
appellant’s first words to him were, “‘I shouldn’t have been here.’” Deputy Magee said that
he received information that there was a deceased victim in the residence after he had placed
appellant in the patrol car.




                                             -3-
       In response to questioning from the court, Deputy Magee testified about appellant’s
condition when he exited the car, describing him as “a little lethargic.” He also said that
appellant appeared “confused or dazed” and was sweating. Deputy Magee testified that
appellant appeared to be under the influence of some substance because he had slurred
speech, repeated himself several times, had dilated pupils, and was moving slowly.

        Sergeant Aaron Pickard testified that he was the first to arrive at the victim’s residence
after receiving a dispatch that there had been shots fired there. He learned while he was en
route that a person had been injured. When he arrived at the residence, he saw a blue
Cadillac in the driveway. He shined a light into the vehicle but did not see anyone inside. He
proceeded to the house and went inside. Sergeant Pickard said that he entered through an
unlocked glass storm door on the front of the house. Inside, he smelled “burnt gunpowder”
and saw several shotgun shells. He had begun speaking with James Isenberg, who had called
9-1-1, when he saw the victim lying in the floor. Mr. Isenberg told Sergeant Pickard that he
had been upstairs when he heard a shot and heard the victim say, “‘It’s you, you son-of-a-
b****.’” Sergeant Pickard said that he checked the victim for signs of life and asked Mr.
Isenberg about the Cadillac in the driveway. Mr. Isenberg did not know anything about the
vehicle. Sergeant Pickard said that at that point, he felt “like maybe something else was
going – you know, we could be in danger then.”

       Sergeant Pickard testified that he asked over the radio for the next responding deputy
to check the Cadillac. He learned that Deputy Magee found someone in the Cadillac. When
he went outside, Sergeant Pickard saw Deputy Magee patting appellant down, and he ordered
Deputy Magee to place appellant in his patrol car.

        Sergeant Pickard further testified that Major Don Linzey, the chief of detectives,
asked him to transport appellant to the jail.2 Sergeant Pickard said that he did not initiate any
conversation with appellant while appellant was in his car, but upon seeing a news van
parked on Hilton Lane, appellant asked him “if his name was going to be on the news.”
Sergeant Pickard responded that no one knew appellant’s name yet. Sergeant Pickard
testified that appellant then said either “‘I didn’t want to kill that guy’” or “‘I didn’t want to
have to kill that guy.’”3 Sergeant Pickard transported appellant to the jail and then to Sumner
Regional Hospital to have his blood drawn. Sergeant Pickard testified that appellant asked
him whether he would get to school on time, and Sergeant Pickard responded that “he


        2
             We note that this occurred after Major Linzey and Lieutenant Tarlecky obtained the 6:03 a.m.
statement.
        3
         The “dashcam” in Sergeant Pickard’s patrol car recorded their interaction; however, the recording
was not entered into evidence at the motion to suppress hearing. It was admitted into evidence at the trial.

                                                    -4-
probably wasn’t going to make it.” According to Sergeant Pickard, appellant did not appear
to be under the influence of drugs or alcohol.

        Major Linzey testified that he was the first detective to arrive at the crime scene.
Sergeant Pickard briefed him on what he had learned to that point. Major Linzey testified
that a nine millimeter pistol was found underneath the victim, and there was a bullet hole
through a window in the front door. He found three shotgun shells in the residence, two
spent and one unspent. Three shell casings from the nine millimeter pistol were found in a
room adjacent to where the victim was found.

       After viewing the crime scene, Major Linzey and Lieutenant Christopher Tarlecky
attempted to speak with appellant. Lieutenant Tarlecky escorted appellant from Deputy
Magee’s vehicle to his own and placed appellant in the front seat. Lieutenant Tarlecky sat
in the front as well, and Major Linzey sat in the back seat. Lieutenant Tarlecky advised
appellant of his Miranda rights and asked whether appellant wanted to talk to him. Appellant
said, “‘No.’” Lieutenant Tarlecky then asked appellant his age and whether he was on
probation. Major Linzey informed appellant that he was going to be arrested and booked for
homicide. He also told appellant, “[I]f at any point during that [process] you want to tell us
what happened[,] please feel free to do so.” Major Linzey testified that appellant responded,
“‘What happened?’” When Major Linzey told him, “‘Uh-huh,’” appellant proceeded to tell
them “exactly what happened there at the residence.” Major Linzey said that they asked
appellant follow-up questions.

        Major Linzey testified that appellant told them that he had gone to the victim’s
residence to steal the victim’s guns. He learned about the guns from a friend. He took some
Xanax that night and drove to the residence with a shotgun. He went inside, and the victim
confronted him. The victim shot at him, and appellant returned fire. When he exited the
house, he was disoriented, and it took him some time to find his vehicle again. Major Linzey
testified that appellant never asked for an attorney, and he was “very cooperative and talked
openly.” He did not appear to be impaired, but Major Linzey asked appellant whether he was
under the influence of anything. Appellant told him that he had taken three to four “bars”
of Xanax.

        After appellant’s statement, Major Linzey had Sergeant Pickard transport appellant
to the jail4 and then to the hospital to have blood drawn. Major Linzey stayed at the crime
scene until 11:15 a.m. He said that he received a telephone call at 10:39 a.m. from Sheriff
Barker informing him that appellant’s parents were at the sheriff’s office.


        4
          During cross-examination, Major Linzey testified that appellant left the scene at 6:42 a.m. with
Sergeant Pickard.

                                                   -5-
        Major Linzey said that around 1:00 p.m., he escorted appellant to a conference room
at the sheriff’s office so that he could talk to his parents. Major Linzey explained that in the
interim, Lieutenant Tarlecky and Detective Lisa House had been conducting “an in-depth
interview” with appellant. Major Linzey and Sheriff Barker stayed in the room while
appellant and his parents spoke. The conversation was not recorded, but Major Linzey
recalled that appellant told his parents what had occurred at the victim’s residence.

        On cross-examination, Major Linzey testified that Lieutenant Tarlecky wrote
“Refused” on an Admonition and Waiver form after appellant indicated that he did not want
to talk to them. He further testified as to the reasons he arrested appellant for homicide. He
explained that the shotgun shells found in the house were consistent with the shotgun found
in appellant’s possession, that appellant’s vehicle was parked so that it was hidden from the
house, and that appellant was wearing a full-face ski mask and a glove.

       Sumner County Lieutenant Christopher Tarlecky testified that he spoke with James
Isenberg at the crime scene on October 30, 2009. Mr. Isenberg, who lived on the second
floor of the residence, told him that he had been awakened by gunshots. Mr. Isenberg also
told him that the victim had disagreements with the “Bush Hog operator” and a nephew.

       After interviewing Mr. Isenberg, Lieutenant Tarlecky spoke with appellant. As he
escorted appellant from Deputy Magee’s vehicle to his own, he asked appellant whether he
was injured, whether he was called Tyler or James, and whether “he was on anything.”
Appellant responded that he was not injured and that he had taken Xanax. Lieutenant
Tarlecky said that appellant was wearing blue jeans, a black hooded jacket, and a “ski mask
type cap.”

       Once he had placed appellant in the front seat of his vehicle, Lieutenant Tarlecky read
the Miranda warnings to him, and he also had appellant read a paragraph from the form.
Lieutenant Tarlecky asked appellant whether he wanted to talk, and appellant responded,
“‘No.’” Lieutenant Tarlecky then asked appellant if he was eighteen, whether he had ever
been arrested before, and if he was on probation. Appellant answered affirmatively to all
three questions. Lieutenant Tarlecky said that the purpose of the questions was to determine
whether appellant would be going to the jail or to juvenile detention and to facilitate the
booking process. Lieutenant Tarlecky testified that Major Linzey advised appellant that he
was being placed under arrest for homicide and that he could tell the officers what happened
at any point during the investigation if he wanted. Appellant proceeded to tell them what
happened, and they asked him questions.

      After appellant had been transported away from the scene, Lieutenant Tarlecky helped
process the crime scene. He said that he was present when the shotgun was removed from

                                              -6-
appellant’s vehicle. Later, he and Detective House went to the sheriff’s office to interview
appellant. Lieutenant Tarlecky testified that at 11:10 a.m., appellant signed a Miranda rights
Admonition and Waiver form. During the interview, they took several breaks to allow
appellant to smoke and to eat lunch.

        Lieutenant Tarlecky agreed that the main point of the 11:10 a.m. interview was to
ascertain whether anyone had helped appellant commit the crime or “put him up to it.”
During the interview, Lieutenant Tarlecky obtained appellant’s consent to search his cellular
telephone, and Detective House obtained appellant’s consent to search his bedroom. After
the interview concluded, Major Linzey took appellant to meet his parents.

       On cross-examination, Lieutenant Tarlecky clarified that he wrote “Refused” on the
waiver form because appellant refused to talk to them at first, not because he refused to sign.
The lieutenant said that he did not give appellant an opportunity to sign or to refuse to sign
the waiver form.

        Detective Lisa House testified that during the course of the 11:10 a.m. interview with
appellant, appellant told her that he had gotten ammunition from his residence. She asked
him for permission to search the residence, and he gave his consent by signing a form. He
also told her that the ammunition was located in a dresser drawer in his bedroom. Detective
House testified that she told him she would also get consent to search the residence from
appellant’s parents because it was their house.

       The trial court ruled that Deputy Magee’s seizure of appellant was supported by
reasonable suspicion, and his continued detention was supported by probable cause.
Concerning appellant’s various statements, the trial court suppressed appellant’s 6:03 a.m.
statement to Lieutenant Tarleckey and Major Linzey, reasoning that the officers did not
“scrupulously honor [appellant’s] right to cut-off questioning.” However, the court ruled that
appellant’s statements to Deputy Magee and to Sergeant Pickard were admissible as they
were not the result of custodial interrogation. Furthermore, the trial court ruled that
appellant’s 11:10 a.m. statement, his 1:00 p.m. statement to his parents, and his 8:39 p.m.
statement to Detective Forrest5 were admissible.

                                               B. Trial

      Mary Lou Lassiter, the victim’s sister, testified that the victim was sixty-one years old
when he died. He had lived at his farm, Elephant Walk, since 1988. She said that his house


       5
          No testimony was presented at the motion hearing regarding the 8:39 p.m. statement; however, a
recording of the statement was admitted into evidence at the suppression hearing.

                                                  -7-
was approximately 3,500 square feet in size, and the driveway to the house was three-
quarters to one mile long. She further said that a rock wall encircled the house.

        Ms. Lassiter testified that James Isenberg had been married to Olivia Lassiter, the
sister of Ms. Lassiter and the victim, for a time. However, Mr. Isenberg was also friends
with the victim and had lived with the victim for three years prior to the victim’s death. Mr.
Isenberg had passed away prior to the trial.

       On cross-examination, Ms. Lassiter testified that she never heard the victim mention
appellant’s name. She agreed that the victim had been friends with Mark Griffin and that Mr.
Griffin’s son, Matthew, had visited Elephant Walk.

       James Isenberg, via deposition, testified that he had lived at the victim’s house for
approximately three years prior to the victim’s death. On the night of October 29, 2009, Mr.
Isenberg said that he and the victim watched a football game. Mr. Isenberg then he went to
the upstairs den where he fell asleep on the couch while watching television. He was
awakened by gun shots. Mr. Isenberg testified that he heard two shotgun blasts, followed by
the victim saying, “‘You son of a b****.’” He heard three pistol shots after the victim’s
exclamation. Mr. Isenberg went halfway down the stairs to investigate. He saw the victim
lying on the floor and heard the victim moaning. While he watched, the victim stopped
moaning. Mr. Isenberg assumed that he died at that point. Mr. Isenberg called 9-1-1.

        Mr. Isenberg testified that the victim had six to seven rifles and shotguns in a gun rack
in the downstairs den. The victim also had a pistol that Mr. Isenberg assumed was kept in
the victim’s bedroom. Mr. Isenberg testified that none of the victim’s guns were missing
after his death. He further testified that the victim owned several dogs, one of which he
occasionally brought inside. Mr. Isenberg did not recall seeing or hearing a dog the night of
the victim’s death. He said that he had never seen appellant prior to seeing him during the
deposition.

       On cross-examination, Mr. Isenberg testified that the victim had included Mark
Griffin in his will but that Mark Griffin passed away before the victim died. Mr. Isenberg
recalled that the victim became angry with Matthew Griffin for “bad mouthing” his father.

       Sergeant Aaron Pickard testified that he was dispatched to the victim’s residence at
4:26 a.m. He arrived at 4:35 a.m. and was the first officer at the scene. Sergeant Pickard saw
a blue Cadillac in the driveway but did not see anyone inside. He ordered other responding
officers to investigate the Cadillac when they arrived. When Sergeant Pickard approached
the house, he saw Mr. Isenberg, through a glass storm door, standing on the staircase. Upon



                                               -8-
entering the house, he smelled gun powder. He found three shotgun shells on the floor, two
of which were spent, and he saw a nine millimeter pistol beside the victim’s body.

        Deputy Christopher Magee testified that when he arrived at the victim’s residence, he
stopped at the Cadillac and directed all of the lights on his vehicle toward it. He saw
movement inside and approached with his weapon drawn. He observed that appellant was
lying in between the front seat and floorboard, clutching a “dark colored long gun.” Deputy
Magee directed appellant to drop the weapon and exit the vehicle. When appellant complied,
Deputy Magee handcuffed him and searched him. He asked him whether anyone was with
him, and appellant responded, “‘No.’” He collected appellant’s wallet and cellular telephone
from appellant’s pockets and placed appellant in the back of his patrol car. Deputy Magee
testified that appellant asked him several times whether he could call his parents and told
him, “I didn’t mean to shoot that guy[,] but I didn’t want to get shot.”

        While appellant was sitting in Deputy Magee’s vehicle, officers were examining the
crime scene and collecting evidence. Captain Don Badacour testified that from the house,
he collected three shotgun shells, two of which were spent; three bullet casings, two of which
were found in a room behind the victim’s body and one of which was underneath his body;
and the nine millimeter pistol. He further testified that there were three bullet holes in the
house: one went through a front window after ricocheting off a door; one entered the wall
by the front windows; and one entered the baseboard under the front windows. Captain
Badacour also collected a twelve-gauge shotgun and packaging for a pair of gloves from
inside the Cadillac, as well as a gun case from the Cadillac’s trunk. On cross-examination,
Captain Badacour testified that he dusted for fingerprints in the vehicle and in the house, but
he was not aware of the results of the fingerprint analysis.

       Lieutenant Christopher Tarlecky testified that he arrived at the crime scene at 5:15
a.m. He interviewed Mr. Isenberg and videotaped the crime scene. He spoke with appellant,
but appellant invoked his right to remain silent. Lieutenant Tarlecky performed a gunshot
residue test on appellant’s hands at the scene.

        Lieutenant Tarlecky would later interview appellant at the Criminal Investigation
Division’s office, but before that interview, Sergeant Pickard transported appellant to the jail6
and then to the hospital to have his blood drawn for a toxicology analysis. Sergeant Pickard
testified that when he and appellant were leaving the victim’s farm, they saw news vans
parked at the end of the driveway. Appellant asked him “if his name was going to be on the
news.” Sergeant Pickard responded that “no one knew him by his name or what had went


        6
          While not included in the trial transcript, we note that the testimony from the motion to suppress
hearing indicated that Sergeant Pickard left the scene with appellant at 6:42 a.m.

                                                    -9-
[sic] on at [that] point.” Sergeant Pickard testified that appellant then said “‘I didn’t want
to kill that guy.’” The recording of their interaction revealed the following exchange:

       Appellant:     Is that a news van?

       Pickard:       Looks like.

       Appellant:     Is it on the news this morning?

       Pickard:       I don’t know. I haven’t had time to watch.

       Appellant:     If it is, are they going to say my name over the news?

       Sergeant:      Nobody knows anything at this point.

       Appellant:     You know, I didn’t mean to kill that guy.

       Sergeant:      As far as I know.

When they arrived at the jail, Detective Wes Martin obtained appellant’s consent to have his
blood drawn, and Sergeant Pickard transported him to the hospital for that to be done.

       Just after 11:00 a.m., Lieutenant Tarlecky and Detective Lisa House interviewed
appellant at the sheriff’s office. They advised appellant of his Miranda rights, and he signed
the Admonition and Waiver form. Subsequently, they interviewed appellant, and the jury
was shown a video recording of the interview. During the interview, appellant described the
events of October 29 and 30. He did not work on October 29, so he spent time with friends,
particularly Matthew Griffin. Appellant told the officers that Matthew Griffin’s father had
been friends with the victim. At some point prior to October 29, Matthew Griffin told
appellant about the guns at the victim’s house and showed him where the victim lived.

       Appellant said in his statement that he “ate” several Xanax pills throughout the day
and smoked marijuana. He went to the mall, to a high school football game, and to a friend’s
apartment. He and Matthew Griffin went “muddin[g]” in Matthew’s truck. At some point,
appellant concocted a plan to go to the victim’s house to take his guns. He said that he would
have tried to sell the guns because he needed money to pay for a loan and car insurance.
Appellant said that he tried to get friends to go with him to the victim’s house, but the people
he asked were either unavailable or were unwilling to go. After parting from Matthew
Griffin, appellant said that he went home for a short time. He left his house with his loaded
shotgun in its case and drove his parents’ car to Walmart, where he bought gloves and a ski

                                              -10-
mask. He said that he wanted to disguise himself in case he saw anyone at the victim’s
house. Appellant said that the shotgun was for his own protection. Appellant drove to the
victim’s house and walked inside through an unlocked door. He found the gun rack almost
immediately but wanted to walk through the house to see if anyone was awake. Appellant
said he walked through the kitchen and “back around.” When he did that, he saw the victim.
Appellant said,

       I was trying to make my way to the door[,] and I seen [sic] him holding a
       pistol. . . . I believe I was standing right beside the door[,] and then he come
       [sic] around the corner with a pistol. And I think he fired two shots[,] and it
       [sic] went to my right – to right of me[,] and that’s when I shot. And when I
       shot, I didn’t even aim it at him.

Appellant recalled pumping the shotgun but only remembered firing once. He said that he
had three shells in the gun and believed the shells were birdshot. Appellant said that when
he saw the victim fall, he left the house. He did not know “which way [he came] out,” and
he could not immediately find his vehicle. Appellant recalled hearing people in the front
yard. When he found his car, he “sat there until everybody pulled up.”

       Appellant gave his permission for the police to search his cellular telephone, and he
also gave permission to search his bedroom at his parents’ house. He told Detective House
where he kept his remaining ammunition. Lieutenant Tarlecky said that he found a text
message conversation on appellant’s telephone wherein appellant asked Matthew Griffin,
“Last drive on right?” The lieutenant said that the message was sent at 3:59 a.m. but not
delivered until later that day. Detective House testified that she found the ammunition
exactly where appellant had told her it would be.

        Dr. Feng Li, Senior Associate Medical Examiner, testified that the victim died from
two shotgun wounds to the left side of his body, both of which were “potentially fatal.” One
wound perforated the victim’s left subclavian artery, and the second caused rib fractures and
a contusion of the left lung. Dr. Li opined that the muzzle of the shotgun was five to seven
feet from the victim.

       Several Tennessee Bureau of Investigation (“TBI”) agents testified regarding the
forensic analysis associated with this case, all of whom were accepted by the trial court as
experts in their respective fields. Special Agent John Harrison testified that appellant’s blood
was negative for alcohol. Special Agent Dawn Swiney testified that appellant’s blood was
positive for the family of drugs called benzodiazepines and for marijuana metabolite. She
further testified that she performed a basic drug screen on appellant’s blood, which included
screening for Alprazolam, also known as Xanax, and that the screening was negative for

                                              -11-
Alprazolam. She explained that it would take eighteen to sixty hours for the amount of
Alprazolam in the body to become too low to register in the screening.

        Special Agent Jennings Russell Davis, II, testified that he analyzed the gun shot
residue kits taken in this case. The results for the victim’s hands were inconclusive, and the
results for the appellant’s hands were negative for gun shot residue. Agent Davis also tested
the clothing collected from appellant. He found gun shot residue on the right sleeve of
appellant’s hooded jacket and on the ski mask. No gun shot residue was found on the
remaining articles of clothing.

        Special Agent Alex Brodhag testified that he examined both firearms associated with
this case. He stated that the nine millimeter pistol found at the scene fired the bullet casings
also found at the scene. Agent Brodhag further stated that the shotgun found in appellant’s
possession fired the two spent shells found at the scene. The shells found at the scene were
manufactured by Kent and were twelve gauge, number eight birdshot. Agent Brodhag
testified that the ammunition found at appellant’s home was consistent with that found at the
scene. He further testified that the shotgun pellets removed from the victim’s body were
number eight birdshot.

        Matthew Griffin and Holly Haskins testified on behalf of appellant. Matthew Griffin
testified that the victim was “like a second father to [him]” and that appellant was his best
friend. He had a “misunderstanding” with the victim that led him to call the drug task force
to make a report against the victim two days before the victim’s death. Matthew Griffin
testified that he spent the day with appellant on October 29. He said that appellant might
have had some liquor, and he recalled that appellant bought Xanax. He did not personally
see appellant take the Xanax, but he said that appellant slept through much of their “four-
wheeling” trip. Matthew Griffin attributed appellant’s sleepiness to the effects of Xanax. He
said that he never took appellant to Elephant Walk. On cross-examination, Matthew Griffin
said that he had not been mad enough at the victim to kill him.

      Holly Haskins testified that she overheard a conversation between appellant and
Matthew Griffin about the two of them going somewhere. She recalled that appellant
seemed reluctant to go. She did not remember the destination they discussed, and she did not
remember telling law enforcement that they mentioned the name “Lassiter.”

       Following the close of proof and deliberations, appellant was convicted as charged.
The trial court sentenced him to life in prison for the felony murder conviction and to six
years each for the other two convictions. The trial court ordered that all sentences be served
consecutively.



                                              -12-
                                         II. Analysis

                                    A. Motion to Suppress

        Appellant made several statements to law enforcement officers throughout the day of
October 30, 2009. The trial court suppressed the statement made at 6:03 a.m. On appeal, he
argues that the trial court erred by denying his motion to suppress the other statements and
physical evidence obtained as a result of the statements. In particular, he argues that the trial
court should have suppressed his statements to Deputy Magee as the product of an unwarned
custodial interrogation, its functional equivalent, or an unlawful detention. Furthermore, he
argues that the trial court erred by admitting statements made after the suppressed 6:03 a.m.
statement because, he contends, these statements were tainted by the violation of appellant’s
right to remain silent during the 6:03 a.m. interview. Those statements include his statement
to Sergeant Pickard while en route to the jail at 6:42 a.m., the 11:10 a.m. statement to
Lieutenant Tarlecky and Detective House, statements made during his 1:00 p.m. meeting
with his parents, and his 8:39 p.m. statement to Detective Forrest. The State responds that
appellant’s constitutional rights were not violated at any point, including during the 6:03 a.m.
interview that was suppressed by the trial court. After careful review, we conclude that the
trial court’s rulings on the motion to suppress were correct. However, we note that
appellant’s statements to his parents at 1:00 p.m. and to Detective Forrest at 8:39 p.m. were
not admitted into evidence at trial; therefore, we will not consider appellant’s arguments
regarding those statements in this opinion.

                                    1. Standard of Review

        A trial court’s determination of issues at a suppression hearing is presumptively
correct on appeal. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994) (citing State v.
Harbison, 704 S.W.2d 314, 318 (Tenn. 1986)), abrogated on other grounds by State v.
Saylor, 117 S.W.3d 239 (Tenn. 2003). We review de novo the trial court’s legal conclusions
denying a motion to suppress. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008)
(citations omitted). 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

                                              -13-
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.

        The central focus of appellant’s arguments regarding his motion to suppress is the
federal and state constitutional protections against compelled self-incrimination. “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).

       Due to “the inherently compelling pressures of in-custody interrogation,” the United
States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), “limited the admissibility
of statements that would ordinarily meet the due process test of voluntariness” by
establishing prophylactic rules designed “to permit a full opportunity to exercise the privilege
against self-incrimination.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992)). Any
statements, “whether exculpatory or inculpatory, stemming from custodial interrogation of
the defendant” must be excluded “unless [the prosecution] demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.” Miranda,
384 U.S. at 444. These procedural safeguards require an officer to advise an accused prior
to custodial interrogation or its functional equivalent

       that he has the right to remain silent, that anything he says can be used against
       him in a court of law, that he has the right to the presence of an attorney, and
       that if he cannot afford an attorney one will be appointed for him prior to any
       questioning if he so desires.

Id. at 479; see also Rhode Island v. Innis, 446 U.S. 291, 298 (1980); State v. Sawyer, 156
S.W.3d 531, 534 (Tenn. 2005).

       Notwithstanding, an accused may waive his right against self-incrimination. Thacker,
164 S.W.3d at 248 (citing Miranda, 384 U.S. 436, 444 (1966)). The accused’s waiver of his
right against self-incrimination under Miranda must be made intelligently, knowingly, and
voluntarily to be held constitutional. Id. (citing Miranda, 384 U.S. at 444).

               The United States Supreme Court has interpreted the Fifth Amendment
       in part to require that an incriminating statement or confession be freely and
       voluntarily given in order to be admissible. This even applies to statements
       obtained after the proper Miranda warnings have been issued. Statements and

                                              -14-
       confessions not made as a result of custodial interrogations must also be
       voluntary to be admissible. It 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.” Moreover, due process requires
       that confessions tendered in response to either physical or psychological
       coercion be suppressed. This has evolved into the “totality of circumstances”
       test to determine whether a confession is voluntary.

Id. (internal citations omitted). Thus, to determine whether an accused’s statements were
voluntary, the appellate courts review the totality of the circumstances surrounding the
waiver of the right against self-incrimination. Id. at 249 (citing State v. Stephenson, 878
S.W.2d 530, 545 (Tenn. 1994)).

                           2. Statements Made to Deputy Magee

        Appellant’s first argument challenges the admission of statements he made to Deputy
Magee during his detention by the deputy. Deputy Magee was the first officer to come into
contact with appellant on October 30. Deputy Magee was responding to a shots fired call on
a remote farm and did not know that there was only one deceased victim inside the residence.
He came upon appellant, who was clearly attempting to hide in a vehicle that had already
been determined to be suspicious. Not only was appellant hiding, he was holding a shotgun.
Deputy Magee would not have known how many suspects might be in the area, whether
appellant was a victim himself, or whether appellant’s shotgun was loaded. In other words,
Deputy Magee’s interaction with appellant began under tense circumstances. Deputy Magee
instructed appellant to drop the weapon and exit the vehicle. When appellant exited, Deputy
Magee asked him what he was doing there and whether anyone was with him. Appellant
answered, “I shouldn’t have been here,” and “No,” respectively. Almost simultaneously,
Deputy Magee handcuffed appellant and searched him for weapons. He also collected
appellant’s wallet, cellular telephone, and a glove. The deputy testified that he believed that
appellant was under the influence of some substance based on his slow movements, his
sweating, and his slurred speech. Deputy Magee placed appellant in the back seat of his
patrol car and lowered the window several inches. Deputy Magee did not stay inside the
patrol car himself the entire time but entered and exited occasionally. Over the course of the
next eight to nine minutes, appellant asked Deputy Magee several times whether he could
call his father. Deputy Magee told him to “hang tight.” They had another exchange wherein
appellant asked for the time, and Deputy Magee asked him, “Why?” When appellant told
him that the vehicle belonged to his mother, Deputy Magee said, “And?” While another
officer gave directions over the radio to law enforcement personnel, the following exchange
occurred:



                                             -15-
       Appellant:            Is he going to be ok?

       Deputy Magee:         I don’t know

       Appellant:            I didn’t mean to shoot that man, but I thought I was
                             going to get shot myself.

At that point, Deputy Magee essentially told him not to say anything else.

       On appeal, appellant argues that Deputy Magee subjected him to an unwarned
custodial interrogation or its functional equivalent. It is unquestioned that appellant was in
custody and that Deputy Magee did not give the Miranda warnings to appellant. Therefore,
the only issue that remains is whether Deputy Magee’s words and actions constituted an
interrogation, its functional equivalent, or questioning that falls under an exception to
Miranda. The United States Supreme Court in Rhode Island v. Innis provided the following
guidance for lower courts:

       [T]he term “interrogation” under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other
       than those normally attendant to arrest and custody) that the police should
       know are reasonably likely to elicit an incriminating response from the suspect.
       The latter portion of this definition focuses primarily upon the perceptions of
       the suspect, rather than the intent of the police. This focus reflects the fact that
       the Miranda safeguards were designed to vest a suspect in custody with an
       added measure of protection against coercive police practices, without regard
       to objective proof of the underlying intent of the police. A practice that the
       police should know is reasonably likely to evoke an incriminating response
       from a suspect thus amounts to interrogation. But, since the police surely
       cannot be held accountable for the unforeseeable results of their words or
       actions, the definition of interrogation can extend only to words or actions on
       the part of police officers that they should have known were reasonably likely
       to elicit an incriminating response.

Innis, 446 U.S. at 301-02 (1980) (emphasis added) (footnote call numbers omitted); see also
Sawyer, 156 S.W.3d at 533. We note that appellant never testified as to his perception of
Deputy Magee’s words, but Deputy Magee testified that he never intended to interrogate
appellant.

       The first words by Deputy Magee to which appellant takes exception – “Why are you
here?” and “Are you alone?” – are properly categorized as questions asked by an officer

                                              -16-
during the seizure of an armed person found near the scene of a shooting. Arguably, these
are words and actions “normally attendant to arrest and custody.” Innis, 446 U.S. at 301.
These were certainly questions asked for the purpose of ensuring the safety of Deputy Magee
and other officers. “An officer may ask questions that are necessary to ensure the officer’s
safety or that of the public without violating the Miranda rights of a person in custody.” State
v. Dyron Norm Yokley, E2009-02646-CCA-R3CD, 2011 WL 2120096, at *23 (Tenn. Crim.
App. May 20, 2011), perm. app. denied (Tenn. Sept. 21, 2011) (citing New York v. Quarles,
467 U.S. 649, 657 (1984)). In New York v. Quarles, police officers asked a handcuffed
suspect where his gun was because they believed he had dropped it in a supermarket, where
an accomplice, customer, or employee might find it. Quarles, 467 U.S. at 657. The United
States Supreme Court ruled that “the need for answers to questions in a situation posing a
threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination.” Id. In this case, Deputy Magee had just
encountered an armed man hiding in a vehicle at a residence where shots had been fired. We
conclude that his questions to appellant were appropriate under the circumstances.

        Appellant also argues that Deputy Magee’s actions in activating a recording device
while appellant was handcuffed in the backseat of his patrol car and Deputy Magee’s words
in conversing with appellant were calculated to elicit an incriminating response. The record
reflects that appellant asked Deputy Magee about the time and whether he could call his
father. Deputy Magee was vague about when or if appellant would be allowed to call his
parents, and when appellant asked for the time, Deputy Magee responded with a question.
Soon thereafter, and within nine minutes of being placed in the patrol car, appellant asked,
“Is he going to be ok?” and Deputy Magee responded, “I don’t know.” Then, appellant
confessed to shooting the victim.

       We conclude that the words, “I don’t know,” were not reasonably likely to elicit an
incriminating response. The interaction between Deputy Magee and appellant was very
similar to the situation in Yokely, in which a police officer placed a recorder in his patrol car
while a suspect was sitting in the backseat. Yokely, 2011 WL 2120096, at *23. They
occasionally conversed, and the officer asked a question about the suspect’s injuries. Id. This
court concluded that the officer’s “questions and actions were not ‘reasonably likely to elicit
an incriminating response.’” Id. (quoting Innis, 446 U.S. at 301). Likewise, in this case,
neither Deputy Magee’s words nor actions leading up to appellant’s confession were
reasonably likely to elicit an incriminating response under the circumstances. Therefore,
because the deputy was not interrogating appellant nor practicing its functional equivalent,
appellant was volunteering information when he confessed to shooting the victim.
“Volunteered statements of any kind are not barred by the Fifth Amendment[,] and their
admissibility is not affected” by the holding of Miranda. Miranda, 384 U.S. at 478. See also
State v. Hurley, 876 S.W.2d 57, 66 (Tenn. 1993); State v. Ensley, 956 S.W.2d 502, 511

                                              -17-
(Tenn. Crim. App. 1996); State v. Ezra Shawn Ervin and Andrew McKinney, E1999-00287-
CCA-R3-CD, 2001 WL 15832, at *3 (Tenn. Ct. App. Jan. 9, 2001).

       For his final argument regarding his statements to Deputy Magee, appellant contends
that those statements were the product of an unlawful detention. In his brief, appellant
concedes that Deputy Magee had reasonable suspicion to detain him but argues that his
detention “went beyond the scope of an investigatory detention.” The State responds that
Deputy Magee had probable cause to support a full-scale arrest of appellant, which would
render his detention proper. We agree with the State.

        Beginning 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 [that] 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)).

        An arrest supported by probable cause is an exception to the warrant requirement. Id.
(citing State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009)); see Brown v. Illinois, 422 U.S.
590, 598 (1975). “Probable cause . . . exists if, at the time of the arrest, the facts and
circumstances within the knowledge of the officers, and of which they had reasonably
trustworthy information, are ‘sufficient to warrant a prudent [person] in believing that the
[defendant] had committed or was committing an offense.’” Echols, 382 SW.3d at 277-78
(quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)); see Beck v. Ohio, 379 U.S.
89, 91(1964). “‘Probable cause must be more than a mere suspicion.’” Echols, 382 S.W.3d
at 278 (quoting State v. Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005). However, probable
cause “‘deal[s] with probabilities[,] . . . not technical[ities,] . . . the factual and practical
considerations of everyday life on which reasonable and prudent [persons] . . . act.’” Id.
(quoting State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)); see Brinegar v. United States, 338
U.S. 160, 175 (1949). Moreover, a determination of probable cause encompasses the
accumulation of information known to law enforcement collectively if a sufficient nexus of
communication exists between the arresting officer and a fellow officer with pertinent
knowledge. Echols, 382 S.W.3d at 278 (citation omitted).

       In this case, when Deputy Magee initially detained appellant, the deputy knew that
shots had been fired at the residence and that appellant had been hiding in a car while holding

                                              -18-
a firearm. As appellant conceded, the deputy certainly had reasonable suspicion to detain
him. However, prior to or simultaneously with the detention, Sergeant Pickard was inside
the residence. The sergeant found a deceased victim and spent shotgun shells. Furthermore,
Deputy Magee testified at the suppression hearing that he knew there was at least a wounded
victim inside the house before he initially encountered appellant and that he had learned the
victim was deceased after placing appellant in his patrol car. The radio chatter recorded
during Deputy Magee’s encounter with appellant further evinces that the officers in the house
were in communication with the officers outside. We conclude that the combined knowledge
of Sergeant Pickard and Deputy Magee was “‘sufficient to warrant a prudent [person] in
believing that the [appellant] had committed . . . an offense.’” Echols, 382 SW.3d at 277-78.
As appellant’s statements to Deputy Magee were volunteered during a lawful detention, the
trial court properly admitted them.

                                    3. 6:03 a.m. Interview

        The State contends that the trial court erred by granting appellant’s motion to suppress
the statement appellant gave to Lieutenant Tarlecky and Major Linzey at approximately 6:03
a.m. The trial court reasoned that the officers did not “scrupulously honor” appellant’s right
to remain silent. We conclude that the trial court appropriately suppressed this statement.

       The record reflects that Lieutenant Tarlecky read the Miranda warnings to appellant
and had him read the paragraph pertaining to waiver. Lieutenant Tarlecky asked appellant
whether he wanted to talk to the officers, and he responded, “‘No.’” Lieutenant Tarlecky
wrote, “Refused,” on the waiver form. After several seconds of silence, Lieutenant Tarlecky
asked appellant (1) to confirm his age, (2) whether he had ever been arrested before, and (3)
whether he was on probation. Appellant responded that he was eighteen, that he had
previously been arrested, and that he was on probation. Then, Major Linzey told appellant
that he was going to be taken to jail and charged with murder. Major Linzey also told
appellant to let the officers know if he changed his mind about talking to them about “what
happened.” Appellant asks, “What happened?” After Major Linzey said, “Uh-huh,”
appellant proceeded to tell the officers that he had gone into the victim’s house, that the
victim had shot at him, and that he returned fire. At that point, the officers began asking
questions, which had the effect of obtaining more information from appellant.

        In Michigan v. Mosley, the United States Supreme Court held that “the admissibility
of statements obtained after the person in custody has decided to remain silent depends under
Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” Mosley,
423 U.S. 96, 104 (1975). Of course, an accused can change his mind about giving a
statement after he has invoked his Fifth Amendment rights. In such a situation, the record
must show that the accused validly waived his rights:

                                              -19-
        If, as frequently would occur in the course of a meeting initiated by the
        accused, the conversation is not wholly one-sided, it is likely that the officers
        will say or do something that clearly would be “interrogation.” In that event,
        the question would be whether a valid waiver of the right to counsel and the
        right to silence had occurred, that is, whether the purported waiver was
        knowing and intelligent and found to be so under the totality of the
        circumstances, including the necessary fact that the accused, not the police,
        reopened the dialogue with the authorities.

Edwards v. Arizona, 451 U.S. 477, 486 n.9 (1981).

       The trial court ruled that the first questions by Lieutenant Tarlecky regarding
appellant’s age and probation status were permissible, and we agree.7 Furthermore, we
conclude that Major Linzey’s informing appellant that he was being charged with homicide
was permissible because, under the facts and circumstances of this case, it does not appear
that he intended to elicit incriminating information by so doing. Cf. State v. Sawyer, 156
S.W.3d 531, 534-35 (Tenn. 2005) (reading affidavit of complaint to accused prior to giving
Miranda warnings was functional equivalent of custodial interrogation). However, the
officers never sought to ensure that appellant wanted to waive his right to remain silent after
he began to talk and before they began questioning him. In State v. Walton, our supreme
court ruled that the police must give Miranda warnings after a suspect makes a voluntary
statement and before asking follow-up questions. 41 S.W.3d 75, 85 (Tenn. 2001).8 The
court reasoned that following this procedure ensures that the answers to the follow-up
questions “are truly voluntary and free from ‘relevant defendant ignorance.’” Id. (quoting
State v. Callahan, 979 S.W.2d 577, 582 (1998)). Because the officers did not follow this
procedure, we cannot say that appellant’s answers to their questioning were given
voluntarily. Therefore, we affirm the trial court’s suppression of appellant’s 6:03 a.m.
statement.




        7
         Courts have allowed some express questioning when “(1) the questions do not infringe upon ‘the
underpinnings of Miranda,’ or (2) those underpinnings are outweighed by other concerns,” such as routine
booking questions and questions that elicit non-testimonial information. State v. Walton, 41 S.W.3d 75, 84
(Tenn. 2001) (quoting Pennsylvania v. Muniz, 496 U.S. 582, 591-602 (1990))
        8
           The situation in Walton differed slight from the case sub judice in that the suspect’s voluntary
statement occurred prior to the police informing him of his Miranda rights, whereas in this case, appellant
had been informed and had invoked the right to remain silent. Walton, 41 S.W.3d at 85. However, in its
ruling, the court applied reasoning from cases where the situation mirrored this case. Id.

                                                   -20-
                                 4. Subsequent Statements

       Appellant argues that all of his statements made after the 6:03 a.m. confession were
tainted by the illegal extraction of that confession. The Tennessee Supreme Court has held
that there is a rebuttable presumption that the “‘extraction of an illegal, unwarned
confession’” taints any subsequent confession and that the State may overcome the
presumption by establishing “‘that the taint is so attenuated as to justify admission of the
subsequent confession.’” State v. Dailey, 273 S.W.3d 94, 110 (Tenn. 2009) (quoting State
v. Smith, 834 S.W.2d 915 (Tenn. 1992)). In Smith, the supreme court set forth nine factors
to “consider when examining the totality of the circumstances surrounding the [initial and
subsequent confessions] in order to determine whether the [subsequent] confession[s] ‘can
truly be termed . . . knowing and voluntary statement[s].’” Dailey, 273 S.W.3d at 110
(quoting Smith, 834 S.W.2d at 920). The Dailey court summarized those nine factors as
follows:

       1. The use of coercive tactics to obtain the initial, illegal confession and the
       causal connection between the illegal conduct and the challenged, subsequent
       confession;

       2. The temporal proximity of the prior and subsequent confessions;

       3. The reading and explanation of Miranda rights to the defendant before the
       subsequent confession;

       4. The circumstances occurring after the arrest and continuing up until the
       making of the subsequent confession including, but not limited to, the length
       of the detention and the deprivation of food, rest, and bathroom facilities;

       5. The coerciveness of the atmosphere in which any questioning took place
       including, but not limited to, the place where the questioning occurred, the
       identity of the interrogators, the form of the questions, and the repeated or
       prolonged nature of the questioning;

       6. The presence of intervening factors including, but not limited to,
       consultations with counsel or family members, or the opportunity to consult
       with counsel, if desired;

       7. The psychological effect of having already confessed, and whether the
       defendant was advised that the prior confession may not be admissible at trial;



                                             -21-
        8. Whether the defendant initiated the conversation that led to the subsequent
        confession; and

        9. The defendant’s sobriety, education, intelligence level, and experience with
        the law, as such factors relate to the defendant’s ability to understand the
        administered Miranda rights.

Id. at 111-12 (citing Smith, 834 S.W.2d at 919-20).

        Under these factors, we must first analyze further the 6:03 a.m. confession and the
circumstances that surrounded it. Appellant had indicated prior to 6:03 a.m. that he was
willing to talk by spontaneously confessing to Deputy Magee that he had shot the victim. The
officers read the Miranda warnings to appellant, and he invoked his right to remain silent.
As previously discussed, the reason that the “extraction” of the confession has been deemed
illegal was because the officers failed to obtain appellant’s waiver of his Miranda rights.
Having reviewed the recording of the 6:03 a.m. interview, we cannot say that there were any
coercive tactics used by the officers. They only began questioning appellant after he told
them that he had gone inside the house, that the victim had shot at him, and that he had
returned fire.

       The 6:03 a.m. confession was obtained approximately one and one-half hours after
the sheriff’s deputies arrived at the crime scene and found appellant. During that one and
one-half hours, appellant was in custody but was not interrogated or subjected to its
functional equivalent. Appellant stated that he had taken Xanax the day before the offense,
but this confession would have been many hours after appellant ingested whatever
benzodiazepine he actually took.9 Appellant was only eighteen; however, there has been no
indication that he was of below-average intelligence, and he had some experience with the
law as he had a prior conviction. Keeping all of these circumstances in mind, we will now
analyze each statement that appellant insists should have been suppressed.

                           a. 6:42 a.m. Statement to Sergeant Pickard 10

       Appellant argues that his statement to Sergeant Pickard while they were leaving the
crime scene – “I didn’t want to kill that guy” – “was causally connected both temporally and

        9
          As the TBI agent testified at trial, no Xanax was found in appellant’s system, but his blood tested
positive for the family of benzodiazepine drugs.
        10
           Because the record does not indicate the exact time of this statement, we will refer to it by the
time that Sergeant Pickard and appellant left the crime scene to differentiate it from the other statements
given throughout the day.

                                                    -22-
substantively to the illegal interrogation.” While we acknowledge that the statement was
made very soon after the 6:03 a.m. confession, the recording of the event reveals that
appellant was not subjected to interrogation or its functional equivalent. This statement was
volunteered, and as previously discussed in this opinion, volunteered statements are not
within the purview of Miranda. See Miranda, 384 U.S. at 478. Therefore, the trial court
properly denied appellant’s motion to suppress this statement.

                                  b. 11:10 a.m. Statement

       Next, appellant contends that the 11:10 a.m. statement should have been suppressed
because, he argues, the Miranda waiver was ineffective and the Dailey/Smith factors weigh
against its admission. The record shows that approximately five hours passed between the
suppressed statement and the 11:10 a.m. statement. During that time, appellant had been
given cigarettes, but he was not given food until part of the way through the 11:10 a.m.
interview. Also during those hours, he was taken to the hospital to have his blood drawn.
One of the same officers from the previous interview was present for the 11:10 a.m.
interview. When presenting the Miranda admonition and waiver form, Lieutenant Tarlecky
characterized it as being the same information he was given earlier. Appellant signed the
form and then read aloud the paragraph stating that he was waiving his rights.

        We have already concluded that there were no coercive tactics used to obtain the first
confession, and the record shows that there were no coercive tactics used in the intervening
time. As the State said during oral arguments, this was not a “dim lights and rubber hose”
situation. In other words, the original “taint” was minimal. Furthermore, the circumstances
of the 11:10 a.m. confession, isolated from any impact of the suppressed confession, present
no cause for concern. Appellant has focused on the psychological effect of having previously
confessed and the effectiveness of the 11:10 a.m. Miranda waiver. As for the psychological
effect, appellant ignores the fact that he also confessed spontaneously to Sergeant Pickard
and Deputy Magee. Thus, we cannot say that the psychological effect factor has any bearing
on the 11:10 a.m. confession.

        Appellant argues that the Miranda waiver was ineffective because officers earlier
ignored his right to cut off questioning. We note that the officers did, in fact, honor
appellant’s right to remain silent until he himself volunteered that he had shot the victim. A
determination that their subsequent questions were a failure to scrupulously honor appellant’s
right to remain silent does not automatically mean that a subsequent waiver obtained several
hours later is invalid. The accused’s waiver of his right against self-incrimination under
Miranda must be made intelligently, knowingly, and voluntarily to be held constitutional.
Thacker, 164 S.W.3d at 248. Appellant expressly waived his Miranda rights prior to the



                                             -23-
11:10 a.m. interview, and the record shows that there was no coercion involved. Therefore,
we conclude that his 11:10 a.m. waiver was effective.

        The circumstances of this case are not very different from that in Smith. The supreme
court, in ruling that Smith’s subsequent confession was given knowingly and voluntarily;
stated that three hours had passed since the first confession; no coercive tactics were used to
obtain either confession; the location and interrogators changed; he was not prevented from
speaking with counsel or family; he was advised of his Miranda rights; there was no
indication that he did not understand those rights; and he signed a written waiver of those
rights. Smith, 834 S.W.2d at 920. The court further stated,

       The only coercive influence apparent in this record is the fact that Smith was
       in police custody at the time of his statement and at all relevant times after his
       arrest. Although police custody is inherently coercive and compelling, if we
       were to hold this single factor sufficient to vitiate the voluntariness of a
       subsequent confession, an accused could never give a voluntary confession
       after arrest.

Id. The main differences between Smith and this case are that appellant was not allowed to
meet with his parents until after the 11:10 a.m. interview and that one of the interrogators
remained the same. Nonetheless, we conclude that application of the Smith factors to this
case leads to the admissibility of the 11:10 a.m. statement. Taking the totality of the
circumstances into consideration, we conclude that the “taint” of the 6:03 a.m. statement was
sufficiently attenuated by the passage of time, lack of coercive tactics, lack of coercive
atmosphere, appellant’s spontaneously confessing to Sergeant Pickard, the re-administration
of the Miranda warnings, and the subsequent waiver of the Miranda rights. As in Smith, the
only coercive influence was that appellant was in custody, which is not “sufficient to vitiate
the voluntariness of a subsequent confession.” Id.

                                    c. Physical Evidence

        Appellant argues that certain physical evidence obtained in this case should have been
suppressed under the “fruit of the poisonous tree” doctrine as products of an illegal detention
and illegally obtained confessions. First, as we have already concluded that Deputy Magee’s
detention of appellant was legal, there is no basis for exclusion of the evidence found during
the pat down search. Secondly, as the Tennessee Supreme Court stated in Climer, “[The
‘fruit of the poisonous tree’ doctrine has not been applied as a remedy for Miranda
violations.” Climer, 400 S.W.3d 537, 567 (Tenn. 2013) (citing United States v. Patane, 542
U.S. 630, 642-43).



                                              -24-
       Nontestimonial evidence discovered as a result of a statement elicited in
       violation of Miranda must be suppressed “only when the statements are the
       product of an actual violation of the privilege against self-incrimination, i.e.,
       such as when actual coercion in obtaining the statement is involved or when
       the invocation of the right to remain silent or to have counsel present is not
       ‘scrupulously honored.’”

Id. (quoting Walton, 41 S.W.3d at 92). Therefore, only evidence obtained as a result of the
6:03 a.m interrogation would have to be suppressed, but no physical evidence was obtained
as a direct result of that interrogation. Therefore, appellant’s argument in this regard is
without merit.

                               B. Sufficiency of the Evidence

       Appellant argues that his confession to the aggravated burglary of the victim’s
residence was not corroborated by independent evidence and that without corroboration, the
evidence was insufficient to support his conviction for aggravated burglary and thus for
felony murder. He insists that the evidence only supports a conviction for second degree
murder.

       The standard for appellate review of a claim challenging the sufficiency 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) (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)); 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

                                             -25-
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 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       To sustain a conviction for aggravated burglary as charged in the indictment, the State
must prove that appellant entered a habitation without the effective consent of the property
owner and with the intent to commit theft. See Tenn. Code Ann. § 39-14-402, -403.
Appellant contends that there was no evidence of aggravated burglary other than his
uncorroborated confession. It is well-established in this state’s case law that a conviction
cannot be founded solely upon a defendant’s confession, and our cases have long required
some corroborating evidence in order to establish the corpus delicti.” State v. Smith, 24
S.W.3d 274, 281 (Tenn. 2000). However, the threshold showing of corroborating evidence
is very low. The Tennessee Supreme Court has ruled that

       [the corroborating] evidence is sufficient if . . . it tends to connect the
       defendant with the commission of the offense, although the evidence is slight,
       and entitled, when standing by itself, to but little consideration. Thus when we
       have a verdict[,] even though founded on slight evidence of corroboration
       connecting the defendant with the crime, it cannot be said, as a matter of law,
       that the verdict is contrary to the evidence.

Id. (quoting Ricketts v. State, 241 S.W.2d 604, 606 (1951)).

       In this case, there is substantial circumstantial evidence connecting appellant with the
commission of the aggravated burglary, specifically the element that he did not have the
effective consent of the property owner to enter the residence. He was found in the victim’s
driveway holding the shotgun that was proven to have killed the victim. The crime occurred
extremely early in the morning, and appellant was wearing clothing that hid his features.
Three witnesses testified that to their knowledge, appellant did not know the victim. The
victim’s roommate heard the victim call appellant a “son of a b****,” suggesting that the
victim did not invite the suspect inside. All of this is evidence that connects appellant to the
commission of the aggravated burglary, thus corroborating appellant’s confession that he
entered the victim’s house, uninvited, with the intent to take the victim’s guns. Furthermore,
this evidence, taken together with appellant’s confession, is sufficient to support his

                                              -26-
conviction for aggravated burglary. Therefore, his argument with regard to the aggravated
burglary conviction is without merit.

        Appellant further argues that he had abandoned his felonious intent by the time he
killed the victim, thus negating an element of felony murder. To sustain appellant’s
conviction for felony murder, the State had to prove beyond a reasonable doubt that he killed
the victim in the perpetration of a burglary. Appellant mistakenly relies on State v. Buggs,
995 S.W.2d 102 (Tenn. 1999), for the proposition that if he no longer intended to commit a
theft, then the felony murder rule should not apply. In Buggs, our supreme court addressed
the issue of whether the felony murder rule applied when the intent to commit a felony did
not occur until after the murder. Buggs, 995 S.W.2d at 107. The court stated that “in a
felony[]murder case, intent to commit the underlying felony must exist prior to or concurrent
with the commission of the act causing the death of the victim.” Clearly, appellant’s intent
to commit the burglary existed prior to the shooting of the victim if he was, in fact, leaving
the house when the victim emerged from his bedroom. Viewed in the light most favorable
to the State, appellant entered the victim’s house without his effective consent and with the
intent to commit a burglary. The evidence is overwhelming that he shot and killed the victim
inside the victim’s house. Therefore, the evidence was sufficient to sustain his conviction
for murder in the perpetration of a burglary.

                                      C. Jury Instructions

        Appellant argues that the trial court erred by denying his requests for jury instructions
on self-defense and voluntary intoxication. “The general principle in criminal cases is that
there is a duty upon the trial judge to give a complete charge of the law applicable to the facts
of the case and the defendant has a right to have every issue of fact raised by the evidence
and material to his defense submitted to the jury upon proper instructions by the judge.” State
v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). “In determining whether a defense
instruction is raised by the evidence, the court must examine the evidence in the light most
favorable to the defendant to determine whether there is evidence that reasonable minds
could accept as to that defense.” State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001). “When the
entire charge, read as a whole, fully and fairly sets out the applicable law, the trial judge does
not err in denying a special instruction requested by a party or in denying an inaccurate
instruction or one inapplicable to the case at hand.” Id.

                                        1. Self-Defense

       Appellant argues that there was sufficient evidence presented to give rise to an
inference that he had abandoned his felonious intent when the victim began shooting at him



                                              -27-
and was thereby justified in shooting the victim in self-defense. The Tennessee Code
Annotated provides:

       The threat or use of force against another is not justified:

       ....

       (2) If the person using force provoked the other individual’s use or attempted use of
       unlawful force, unless:

       (A) The person using force abandons the encounter or clearly communicates to the
       other the intent to do so; and

       (B) The other person nevertheless continues or attempts to use unlawful force against
       the person.

Tenn. Code Ann. § 39-11-611. As in Sims, there is no question at this point in our analysis
that appellant “provoked the use of lethal force in this case by burglarizing [the victim’s]
home.” Sims, 45 S.W.3d at 9. In this case, viewed in a light most favorable to appellant,
there is no evidence that he had abandoned his intent to burglarize the victim’s house because
the burglary was ongoing as long as appellant remained inside the house. Furthermore,
appellant did not clearly communicate his intent to abandon the burglary because he returned
fire instead of escaping when the victim began shooting at him. There is no proof to support
self-defense because appellant was clearly inside the house when he shot the victim.
Therefore, the trial court did not err by denying appellant’s request for an instruction on self-
defense.

                                  2. Voluntary Intoxication

        Although the intoxication of a defendant does not justify the crime, its existence may
negate a finding of specific intent. State v. Bullington, 532 S.W.2d 556, 560 (Tenn. 1976);
see Tenn. Code Ann. § 39-11-503(a). “[W]hen a defendant is charged with an offense that
requires a culpable mental state . . .‘a jury instruction about a defendant’s alleged voluntary
intoxication at the time he or she committed the offense under consideration is required only
if the intoxication was such that it compromised the defendant’s capacity for whatever
culpable mental state the offense required.’” State v. Henretta, 325 S.W.3d 112, 130 (Tenn.
2010) (quoting State v. Hatcher, 310 S.W.3d 788, 815 n. 16 (Tenn. 2010)). The trial court
denied appellant’s request for an instruction on voluntary intoxication because the only
evidence of intoxication was appellant’s own statement. None of the sheriff’s department
officers who came into contact with appellant testified at trial that appellant was intoxicated,

                                              -28-
although Lieutenant Tarlecky testified that he believed appellant’s statement that he had
taken Xanax and smoked marijuana the day before the shooting.11 Matthew Griffin testified
that appellant was drowsy during a four-wheeling trip, which he attributed to appellant’s
having taken Xanax earlier. He also testified that he did not personally see appellant take the
Xanax. No evidence was presented that the Xanax12 impaired appellant’s ability to form the
culpable mental state. Therefore, it was not error for the trial court to deny appellant’s
request for a voluntary intoxication jury instruction. See State v. Ronald Duckett, No.
W2010-02158-CCA-R3-CD, 2012 WL 1524373, at *4 (Tenn. Crim. App. April 30, 2012),
perm. app. denied (Tenn. Sept. 19, 2012).

                                  D. Prosecutorial Misconduct

       Appellant claims that the State engaged in prosecutorial misconduct several times
throughout its closing and rebuttal arguments. Specifically, appellant argues that the State
misled the jury, engaged in burden shifting, bolstered the credibility of State’s witnesses, and
misstated the law.

        “A criminal conviction should not be lightly overturned solely on the basis of the
prosecutor’s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008) (citing
United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425 (Tenn.
2001) (holding that a prosecutor’s improper closing argument does not automatically warrant
reversal)). Because closing argument is considered “an important tool for the parties during
the trial process[,] . . . attorneys are usually given wide latitude in the scope of their
arguments[.]” State v. Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000). However,
“[a]rgument must be temperate, based upon the evidence introduced at trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.” Id. at 578 (citing
Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)). To constitute reversible
error, statements made in closing argument must be improper, and if improper, the
impropriety must have affected the verdict to the prejudice of the appellant. See Carruthers,
35 S.W.3d at 578; see also State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).
The Tennessee Supreme Court has recognized the following factors for courts to consider
when making this determination:




       11
            Deputy Magee testified at the suppression hearing that appellant appeared to be under the
influence of some substance, but he did not repeat this testimony at trial.
       12
           As previously stated, appellant’s blood sample was negative for Xanax but was positive for
benzodiazepines, the family of drugs that includes Xanax. In other words, appellant may have taken
something, but it was not Xanax.

                                                -29-
       1) the conduct complained of, viewed in light of the facts and circumstances
       of the case; 2) the curative measures undertaken by the court and the
       prosecutor; 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; and 5) the relative strength or weakness of the case.

Carruthers, 35 S.W.3d at 578. Furthermore, this court has recognized the following five
areas of prosecutorial misconduct in closing argument:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the
       evidence or mislead the jury as to the inferences it may draw.

       2. It is unprofessional conduct for the prosecutor to express his personal belief
       or opinion as to the truth or falsity of any testimony or evidence or the guilt of
       the defendant.

       3. The prosecutor should not use arguments calculated to inflame the passions
       or prejudices of the jury.

       4. The prosecutor should refrain from argument which would divert the jury
       from its duty to decide the case on the evidence, by injecting issues broader
       than the guilt or innocence of the accused under the controlling law, or by
       making predictions of the consequences of the jury’s verdict.

       5. It is unprofessional conduct for a prosecutor to intentionally refer to or
       argue facts outside the record unless the facts are matters of common public
       knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

        “[W]here a prosecuting attorney makes allegedly objectionable remarks during closing
argument, but no contemporaneous objection is made, the complaining defendant is not
entitled to relief on appeal unless the remarks constitute ‘plain error.’” State v. Thomas, 158
S.W.3d 361, 413 (Tenn. 2005); see Tenn. R. App. P. 36. Our supreme court formally
adopted this court’s Adkisson test for reviewing claims of plain error:

       The Court of Criminal Appeals has developed five factors to consider when
       deciding whether an error constitutes “plain error” in the absence of an
       objection at trial: “(a) the record must clearly establish what occurred in the
       trial court; (b) a clear and unequivocal rule of law must have been breached;

                                              -30-
       (c) a substantial right of the accused must have been adversely affected; (d) the
       accused did not waive the issue for tactical reasons; and (e) consideration of
       the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record before
a court will find plain error. Id. at 282. Complete consideration of all the factors is not
necessary when clearly at least one of the factors cannot be established by the record.

       Appellant did not contemporaneously object to the comments he now complains of
as being “false facts.” He now contends that those comments constitute plain error. In his
own closing argument, appellant stated that sometimes lay people tell law enforcement what
they want to hear, and he pointed out that he invoked his right to silence at 6:03 a.m. and did
“a complete 180” after being in custody for seven hours. In the State’s rebuttal, the
prosecutor reminded the jury about the defense’s assertion in opening statements that
appellant’s will had been overborne by law enforcement. Then, the prosecutor made the
following statements:

              He threw up the exhibit regarding the waiver at 6:00 where Mr. Reed
       refused to sign the waiver. Said he didn’t want to talk to the law enforcement
       officers. Did you hear any questions whatsoever asked by law enforcement
       officers of Mr. Reed on the scene? You didn’t. They didn’t ask him anything.
       Then around 11:00 or 11:10 here at the Sheriff’s Department[,] that’s when the
       questions were asked because Mr. Reed at that time wanted to talk. Anybody
       has the right to change his or her mind.

              Is there any evidence in this record, in this case, that the Sheriff’s
       Department did anything to put pressure on Tyler Reed? It’s quite the
       contrary. They were very nice to him. Very polite to him all the way from the
       very beginning. No pressure. Mr. Reed obviously wanted to talk. . . . [I]n fact,
       the only question, I believe, the record shows that was asked of Mr. Reed out
       on the scene was by Chris Magee.

The defense did not object to these statements.

       Appellant now argues that these comments constitute prosecutorial misconduct under
a plain error review because the prosecutor knew that law enforcement officers had asked
appellant questions at the scene during the interview suppressed by the trial court. Of course,
the jury did not hear those questions, nor did it hear appellant’s answers to those questions.
Both parties were in a “catch-22” situation because appellant could not refer to the questions

                                             -31-
asked during the suppressed interview to support his assertion to the jury that his will had
been overborne, and the State could not refer to appellant’s answers to those questions as
evidence of his guilt. Both parties made arguments that probably should not have been
stated. Therefore, in the context of this case, we cannot say that a plain error review of this
issue is necessary to do substantial justice.

        Next, appellant argues that the State improperly shifted the burden of proof onto the
defense. During its rebuttal argument, the prosecutor called the defense a “smoke screen”
and said that “if they try to make an allegation that somebody else has done something, they
need to have evidence to present to you.” Appellant objected. The trial court sustained the
objection and gave a corrective instruction to the jury: “I will state that the burden of proof
is on the State[,] and that never changes.” Later, the prosecutor said, “The defense is based
on innuendo, suggestion, and speculation. They want you to speculate Mr. Tyler Reed . . .”
Again, appellant objected, the court sustained the objection, and the court gave a curative
instruction. In light of the overall strength of the State’s case and the trial court’s issuance
of proper curative instructions immediately after both complained-of statements, we cannot
say that the statements affected the verdict to appellant’s prejudice.

       Appellant also argues that the State improperly bolstered the credibility of its
witnesses when the prosecutor stated to the jury that they should be proud of the sheriff’s
department with regard to their quick response to the 9-1-1 call and the physical evidence
collected. The prosecutor later stated, “I suggest to you that they have put together a good
murder investigation.” While not the most egregious example of witness bolstering, we
agree with appellant that the prosecutor improperly bolstered the credibility of the sheriff’s
department; however, this case did not turn on the credibility of the officers due to the vast
amount of physical evidence presented in this case. See Goltz, 111 S.W.3d at 6-7. Therefore,
we conclude that these improper statements do not amount to reversible error.

        Finally, appellant contends that the prosecutor’s misstatement of the law in this case
on two occasions amounted to prosecutorial misconduct and reversible error. The first
instance of which appellant complains occurred when the prosecutor was discussing the
lesser-included offense of second degree murder. The prosecutor said, “Second-[d]egree
[m]urder does not fit because there is no proof whatsoever that he went out there intending
to cause the death of [the victim.]” The defense objected. The trial court sustained the
objection and told the prosecutor to “clear up” the misstatement. The prosecutor then read
the definitions of knowingly and intentionally directly from the jury instructions on second
degree murder. The prosecutor further stated,

       My point that I’m trying to make[,] and I mis-stated it earlier[,] is simply that
       we do not intend to try to ask you to find the defendant guilty of First-Degree

                                              -32-
       Murder because he went out there intending to kill [the victim] because he did
       not. But he did during the course of the Aggravated Burglary that he intended
       to commit kill [the victim].

Contrary to appellant’s assertion, the prosecutor did admit to the jury that he made a
misstatement, and he attempted to clear up that misstatement. Based on the prosecutor’s
comments during the bench conference, any misstatement was unintentional. The trial court
gave the jury a proper instruction for the lesser-included charge of second degree murder
prior to closing arguments, and the jury had a copy of those instructions. We fail to see how
this statement by the prosecutor prejudiced appellant in any way.

       Appellant’s second allegation of the prosecutor’s misstating the law occurred during
the State’s rebuttal argument:

       It’s Felony Murder because it was carried out during the course of a dangerous
       felony. And why is Aggravated Burglary a dangerous felony? Because your
       home is sacred. Your home is sacrosanct. If you can’t be safe in your home,
       where can you be safe? You have a right to be safe in your home[,] and you
       have a right to defend yourself as [the victim] vainly tried to do.

              Recall back at the very beginning of the trial when I asked the question,
       how many jurors raised their hand that they had firearms in their home. And
       of those people that did have firearms in their home, how many jurors said for
       protection? Just think about that. [The victim] was in his home, asleep, he had
       his protection, his right to protection[,] and it didn’t help him. That’s why we
       have a law of Felony Murder on the books. Everyone has that right.

Appellant objected, and the trial court overruled the objection, saying, “A victim has a right
to life, liberty, and the pursuit of happiness in his house[,] and I think that’s the argument
here.”

        Appellant now argues that the statements “prejudic[ed] the jurors against any thoughts
that [appellant] could have legally returned fire in self-defense.” We find nothing improper
in the prosecutor’s statements. The prosecutor was merely saying that everyone has the right
to defend himself, not that appellant had to overcome a presumption that the victim was
justified in shooting at him. See Sims, 111 S.W.3d at 9. Therefore, appellant is not entitled
to relief as to this issue.




                                             -33-
                                      CONCLUSION

      Based on the record, the arguments of counsel, the parties’ briefs, and controlling case
law, we affirm the judgments of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                             -34-
