            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                             JANUARY SESSION, 2000


STATE OF TENNESSEE,               *
                                  *           No. W1999-01441-CCA-R3-CD
    Appellee,                     *

vs.                   FILED       *
                                  *
                                  *
                                              SHELBY COUNTY

                                              Hon. Joseph B. Dailey, Judge
GREGORY AUSTIN, March 8, 2000 *
                                  *           (First Degree Murder)
    Appellant. Cecil Crowson, Jr. *
                     Appellate Court Clerk
For the Appellant:                      For the Appellee:

Walker Gwinn                            Paul G. Summers
Asst. Public Defender                   Attorney General and Reporter
201 Poplar Avenue
Memphis, TN 38103                       J. Ross Dyer
                                        Assistant Attorney General
                                        Criminal Justice Division
AC Wharton                              425 Fifth Avenue North
District Public Defender                2d Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493


                                        William L. Gibbons
                                        District Attorney General

                                        Lee Coffee and Jennifer Nichols
                                        Asst. District Attorneys General
                                        Criminal Justice Complex, Suite 301
                                        201 Poplar Avenue
                                        Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                       OPINION

       The appellant, Gregory Austin, appeals his jury conviction for first degree

premeditated murder. The appellant was originally indicted for felony murder in the

perpetration of attempted robbery and first degree premeditated murder. Because

the State did not seek a sentence of death or life without parole, the trial court

imposed a life sentence. On appeal, the appellant argues the trial court erred in

failing to: (1) suppress the appellant’s statement to the police; (2) permit redaction of

portions of appellant’s statement to the police prior to its admission; and (3)

contemporaneously instruct the jury regarding prior inconsistent statements.



       Following our review, we affirm the judgment of the trial court.



                                    BACKGROUND

       On the afternoon of October 28, 1996, Tony Price drove his friend Michael

Ryan to the grocery store and the liquor store. The two men returned to Ryan’s

home at 616 Jeanette Place, a multi-family dwelling, around 8:00 p.m. Ryan took

the packages into his residence while Price remained near his vehicle, a green

Cadillac. While Ryan and his wife finished unloading the groceries, one of Ryan’s

neighbors informed him that his friend Price had been shot. Ryan ran down the

stairs and found Price lying beside the vehicle barely conscious. Price’s pockets

were turned inside out.



       When the officers arrived at the scene, they found Ryan comforting the victim

as he lay on the pavement. The officers asked the victim what had happened.

Although Price was unable to provide a description of his assailant, the victim

advised the officers that a black man approached him and asked “[w]hy you [sic]

following me, man?” Price informed the officers that the man shot him and robbed

him. The officers discovered two spent nine millimeter shell casings near Price’s


                                          2
vehicle. Price was transported to the “Med” and remained in surgery for nearly

twelve hours. The doctors later reported that Price was paralyzed from the waist

down due to a bullet which severed his spinal cord. On November 4, 1996, the

victim lapsed into a coma. In January of 1997, he was transferred to St. Peter’s

Villa and later died on April 6, 1997.1



         Following investigative leads, in March of 1997, Memphis police detectives

questioned Steven Thomas, who gave a statement, regarding the shooting.

Thomas told the police that he, the appellant, and the appellant’s brother Delvin

Lane went to the home of his cousin, Janika Stewart, at 618 Jeanette Place to calm

a fight between Janika and her boyfriend. Finding nothing out of the ordinary, the

three men decided to return to Thomas’ home. Thomas related that after they

returned to their vehicle, the appellant observed the victim, Price, standing next to a

green Cadillac. None of the three were acquainted with the victim. The appellant

got out of the vehicle and approached Price. The appellant and Price talked briefly.

Then, Thomas heard a gunshot behind him from the direction the appellant had

gone. The appellant quickly returned to Thomas’ vehicle.



         In April, Delvin Lane, the appellant’s younger brother, gave a statement to the

police which also implicated the appellant in the shooting. After giving his statement

to the police, Lane telephoned the appellant to inform him that the police were

looking for him for the murder of Tony Price. Lane, Pluria Hampton, and Tomika

McCain, two other friends of the appellant, then assisted the appellant in purchasing

a one-way ticket to Hawaii. McCain and Hampton drove the appellant to the airport.



         When the appellant arrived in Honolulu, Hawaii, around 3:00 p.m., he was

greeted by officers of the Honolulu Police Department. Later that afternoon, the


         1
           The auto psy re port e stab lished that th e victim ’s dea th “wa s due to ch ronic pneu mo nia
and respiratory insufficiency . . . due to prolonged ventilation dependency and cardiopulm onary
arrest . . ., “ resulting from a gunshot wound.

                                                      3
appellant met with Detective James Kawakami. The appellant waived his Miranda

rights and agreed to speak with the detective. During initial questioning, the

appellant denied any involvement in the robbery or murder of Price. He explained

that his brother Lane had informed him that some other people were trying to frame

him for a robbery and murder and that he needed to get out of town. He further

stated that he left Memphis because he was supposed to be in court on an

unrelated charge of “organized crime” involving some automatic handguns and

crack cocaine; his brother also told him that he was wanted on seven or eight

robberies in Memphis. The prior statements of Lane and Thomas to Memphis

police investigators were made available to the Honolulu police department.



        Later in the questioning, Detective Kawakami read the statements of Lane

and Thomas to the appellant implicating him in the murder of Price. The appellant

recanted his denial of any involvement and related that the crime transpired just as

Lane and Thomas had said. He admitted that he shot once “towards his [Price’s]

leg, but I aimed at the ground.” Then, he stated that Price ran toward him and he

shot him again in the chest area. The appellant denied that he robbed the victim.

He admitted shooting Price with a .380 automatic and related:

        I ain’t never shot nobody in my life. . . . I’ve got a four-month old son I
        can’t do nothing for now, because his dad’s going to be in jail for
        murder. . . . [T]hat’s the first person I shot in my life and he died. . . .
        [B]ut as much as I have prayed to the Lord for forgiveness of what I’ve
        done, every time I talk to a officer . . . , I lie about it. . . . .I did it, so I
        got to deal with it. I’m the triggerman.


The appellant was returned to the State of Tennessee on April 28, 1997.



        At trial, the State called as its witness Delvin Lane, the appellant’s brother.

Lane denied any knowledge of the shooting; however, he testified that his statement

to the police implicating the appellant was “[going] along with the plan.”2 Lane

        2
          Although not raised as an issue, Tenn. R. Evid. 607 “permits impeachment by either
party so long as the questioning is not a pretext for putting inadmissible hearsay before the jury.”
State v. Timmy Fulton, No. 02C01-9706-CC-00223, slip op. at 5 (Tenn. Crim. App. at Jackson,
April 21, 19 98), perm. to appeal denied, (Tenn . Dec. 28 , 1998). See also Mays v. S tate, 495

                                                  4
provided that the “plan” involved an $8000 offer from Thomas to the appellant to

confess to the “assault” of the victim; the payment for an attorney; and the posting

of the appellant’s bond. Lane testified he and the appellant went along with the plan

because Thomas was the co-leader of the Gangster Disciples and feared his

“power.” Lane further explained that he feared for the appellant’s life and assisted in

purchasing him a ticket to Hawaii. Lane testified that he disposed of the gun that

the appellant had given him before leaving.



        Steven Thomas testified that he was presently incarcerated in the Shelby

County Jail. Thomas’ statement at trial was consistent with his prior statement to

the police. Thomas denied any deal to pay the appellant $8,000 to take the blame

for the “assault” of the victim. Thomas testified that he had not seen or talked to

Lane since the shooting and had only seen the appellant in court. Furthermore,

Thomas denied any gang involvement.



        Pluria Hampton, a friend of the appellant, testified that in April of 1997, the

appellant told her that “he got into it with a guy, and he shot him in the leg and that

the homicide detective was looking for him. . . . [T]he guy was talking, and I shot him

in the chest.” The appellant related this information to her on the way to the airport.

The appellant stated that he needed to leave because he was wanted for murder.

Hampton further testified that the appellant was a Gangster Disciple and that she

was a former “G” sister.



        At trial the appellant explained that his initial denial to Detective Kawakami of

any involvement in the shooting was the truth. He related that after the detective

read the statements of Lane and Thomas to him that he remembered what he was



S.W .2d 833 ( Tenn . Crim. A pp. 1972 ); see, e.g., State v. Randy Lee Jones, No. 01C01-9708-CC-
00326 (Tenn . Crim. A pp. at Na shville, Aug . 19, 1999 ); State v. Steve Johnson, No. 02C01-9504-
CC-0 0097 (T enn. Cr im. Ap p. at Jack son, Fe b. 27, 199 7); State v. Roy L. Payne, No. 03C01-9202-
CR-00045 (Tenn. Crim. App. at Knoxville, Feb. 2, 1993). The testimony of Delvin Lane comes
perilously close to a violation of the rule an nounc ed in thes e case s.

                                                 5
supposed to tell the police when questioned about the murder according to Thomas’

plan. When the appellant read his brother’s statement, he feared that his brother’s

life was in danger because of retaliation from the Gangster Disciples. He further

stated that earlier in December, Thomas had visited him providing him with details

of the shooting. The appellant denied being a member of the Gangster Disciples.



       Based upon the foregoing proof, the jury found the appellant guilty of

premeditated first degree murder.



                                I. Motion to Suppress

       The appellant argues that the trial court should have suppressed his

statement to Detective Kawakami because it was involuntary. Specifically, he

argues that under the totality of the circumstances that his will was overborne by the

officer because he: (1) was “weary after the long day of stress” from his flight to

Hawaii; (2) waited nearly three hours before he was interviewed by an experienced

detective; and (3) was duped into his reasons for fleeing Memphis and his

confession by the “suggestive” interrogation tactics of the officer and by the

production of the statements of Lane and Thomas. Thus, he contends the

statements should be suppressed as “a product of the officer’s will” and not the

appellant’s.



       At the suppression hearing, the trial court heard testimony from Detective

Kawakami. Kawakami testified that on April 15, 1997, at 6:30 p.m., that he

interviewed the appellant, who was traveling under the assumed name of Victor

Lightning. After advising the appellant of his Miranda rights, the appellant signed

the waiver of rights form. Kawakami testified that the appellant never requested an

attorney at any point during the interview. He stated that he did not utilize force,

threats, or coercion during the interview and that the appellant’s statement was

freely and voluntarily given.


                                         6
      At the conclusion of the hearing, the trial court recited the following findings of

fact on the record:

              In my twenty-five years of practicing law, this is about the most
      professional system that Honolulu has for taking statements that I’ve
      ever seen. The rights themselves are worded in a very
      understandable way. . . . [T]hey’re much easier to understand than the
      literal Miranda rights that the case law provides us with.
              The fact that a breath test . . . is given prior to taking a
      statement is remarkable.
              The statement itself was tape-recorded so there can be no
      dispute as to what was said by the defendant. And anyone who wants
      to can listen, as the officer pointed out, to the tone of voice, the
      manner of conversation. . . . The interview itself was about an hour
      long . . . that’s not an excessive period of time. . . .
              He was given his rights at the airport at 3:30 when he was first
      taken into custody. He was given his rights the second time by this
      officer, initially, and then given the breath test. . . . And then he was
      given his rights a third time by this officer just prior to the taking of the
      statement. And we have a man who, by his statement, went through
      the 11th grade and is certainly mature enough to negotiate that trip
      from Memphis, Tennessee, to Honolulu, Hawaii, on a one-way-$900
      ticket.
              I don’t think his will was overcome. I think he gave the
      statement freely and voluntarily. . . . And the fact that he asked to see
      and was provided with copies of statements given by two witnesses . .
      . does not . . . suggest that the statement was not given freely and
      voluntarily.



       When reviewing a trial court’s findings of fact from a motion to suppress, the

appellant court reviews under the following standard:

       Questions of credibility of the witnesses, the weight and value of the
       evidence, and resolution of conflicts in the evidence are matters
       entrusted to the trial judge as the trier of fact. The party prevailing in
       the trial court is entitled to the strongest legitimate view of the evidence
       adduced at the suppression hearing as well as all reasonable and
       legitimate inferences that may be drawn from that evidence. So long
       as the greater weight of the evidence supports the trial court’s findings,
       those findings shall be upheld. In other words, a trial court’s findings

       of fact in a suppression hearing will be upheld unless the evidence
       preponderates otherwise.

State v. Daniel, No. E1997-00142-SC-R11-CD slip op. at 4-5 (Tenn. Jan. 31, 2000)

(quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). However, the application

of the law to those facts found in the trial court remains a question of law reviewable

by an appellant court under de novo review. State v. Yeargan, 958 S.W.2d 626,

629 (Tenn. 1997).


                                          7
       In the present case, the record does not preponderate against the trial court’s

findings. The record fails to establish that the police exercised any compelling

influence over the appellant or that he involuntarily made his statement to Detective

Kawakami. It is undisputed that the appellant was advised fully and completely of

his Miranda rights upon three occasions and one immediately prior to this interview.

On his final occasion, the appellant signed a written waiver of his constitutional

rights before making the statement to the investigator. We conclude that, under the

totality of the circumstances, the appellant understood his constitutional rights;

voluntary and effectively waived those rights; and voluntarily, intelligently, and

understandably gave his statement. State v. Middlebrooks, 840 S.W.2d 317, 326

(Tenn. 1992) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612

(1966)). Accordingly, the trial court’s denial of the appellant’s motion to suppress

was therefore proper. This issue is without merit.



       Alternatively, the appellant argues that the trial court erred by not redacting

portions of his statement that mentioned other crimes. He contends that the

remainder of the statement contained “rambling repetitive responses” possessing no

probative value. Specifically, he contends that the following statements of the

appellant should have been redacted:

       (1) [Appellant] My brother told me that they had my name down for like
       seven or eight different robs - -being a suspect of seven, eight
       different robs. I’m like what? He’s like, man, I ain’t lying, . . . trying to
       get you. And the next day that he told me that, they going around with
       flier on - - on my face saying that I was wanted. They had
       robber/murder.
       (2) [Appellant] I don’t know what he [Lane] told the police. I just know
       what he [Lane] telling me, that the detective was telling him [Lane].
       They showed him [Lane] some kind of printout of me being a suspect
       in a lot of different robberies. They showed him [Lane] a statement of
       Steve saying I was the triggerman of this shooting.



       Initially, we note that these two statements of the appellant were his

explanations for fleeing Memphis and not offered as evidence of other crimes. The


                                           8
robberies and fliers the appellant mentioned in his statement were his own fanciful

creations. The trial court found that these statements regarding the other

robberies/crimes were relevant and highly probative of the fact that the appellant

was attempting to divert the officer’s attention from the murder. The court further

found that the statements were not offered to prove the truth of the matter asserted

but for assessing the appellant’s credibility and to provide context for the other

statements made by the appellant.



       Since the appellant’s statement was an out of court statement, the hearsay

rule is implicated. Tenn. R. Evid. 801(c) provides that “‘hearsay’ is a statement,

other than one made by the declarant while testifying at the trial or hearing, offered

to prove the truth of the matter asserted.” However, the State did not offer these

statements of the appellant to prove the truth of the statement that he was wanted

for seven or eight robberies and that the Memphis police were passing his fliers

around. Indeed, the State acknowledged that these statements were not true. The

State offered the statement to demonstrate that the appellant continuously misled

the police regarding his reasons for traveling to Hawaii in an attempt to divert

attention from his flight from a murder charge. Thus, we find that the first two

challenged statements do not constitute hearsay. See State v. Caughron, 855

S.W.2d 526 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475 (1993) (finding

testimony of victim’s statements were not hearsay when not offered to prove truth of

matter asserted). Additionally, we conclude that these statements were relevant to

establish his consciousness of guilt as evidenced by his flight to avoid apprehension

and that their probative value sufficiently outweighs their prejudicial effect. See

Tenn. R. Evid. 403. Accordingly, we conclude that these statements were

admissible.



       Additionally, the appellant contends that the statements of Lane and Thomas

included within his recorded interrogation by Detective Kawakami were inadmissible


                                         9
hearsay. At the trial, portions of the taped interview of the appellant by Detective

Kawakami were introduced. Included within the taped interview and played to the

jury were the statements of Lane and Thomas to Memphis police investigators.

Lane’s statement included statements made to him by the appellant, e.g., that he

was “fixing to rob the dude” and the “dude wouldn’t drop it off.” Thomas’ statement

also included incriminating statements, e.g., “the defendant shot the man without

any reason.” The State on appeal offers no grounds for introduction arguing simply

that the challenged statements were not prejudicial.



       Indeed, the appellant’s out of court statement, i.e., “his confession,” to

Detective Kawakami is itself hearsay but is admissible under the hearsay exception

of party admissions. See Tenn. R. Evid. 803(1.2)(A). The statements of Lane and

Thomas included in Kawakami’s interrogation of the appellant constitutes hearsay

within hearsay. See Tenn. R. Evid. 805 (hearsay within hearsay not excluded if

each part of combined statements fall within an exception). The statements of Lane

and Thomas to which the appellant “manifested his adoption or belief in [their] truth”

are also admissible under the party admissions hearsay exception. Tenn. R. Evid.

803(1.2)(B). The appellant acknowledged the truth of his statements to Lane and

Thomas during questioning by Detective Kawakami. The fact that he recanted this

adoption at trial goes to the issue of his credibility. Accordingly, we find no error in

the admission of the statements.



                                   II. Jury Instruction

       The appellant contends that the trial court erred by failing to

contemporaneously instruct the jury, upon defense counsel’s objection, following the

testimony of Lane that the jury could only consider his prior inconsistent statement

for impeachment purposes in determining credibility and not for substantive

evidence. The trial court provided no contemporaneous limiting instruction. In the

jury charge, however, the trial court included in its instructions that proof of a prior


                                          10
inconsistent statement was probative only of credibility and was not to be

considered as substantive evidence of the matter asserted in the statement.



       The law in Tennessee is clear that prior inconsistent statements offered to

impeach a witness can only be received for purposes of determining credibility and

not as substantive evidence of the truth the statements assert. State v. Reece, 637

S.W.2d 858, 861 (Tenn. 1982). The supreme court recognized that the trial court’s

failure to give a limiting instruction may amount to fundamental error requiring

reversal, even absent an objection and a special request, when the State’s case is

weak and the prior inconsistent statement is “extremely damaging.” Reece, 637

S.W.2d at 861 (citing United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970)).

The supreme court limited its holding in Reece to those cases in which “the

impeaching testimony [was] extremely damaging, the need for the limiting instruction

[was] apparent, and the failure to give it results in substantial prejudice to the rights

of the accused.” Reece, 637 S.W.2d at 861(citations omitted).



       However, in a prior decision of this court, cited by the supreme court in

Reece, we held that the failure to so instruct the jury is not prejudicially fatal if the

trial court properly instructed the jury in its general charge on how to consider the

evidence. See Martin v. State, 584 S.W.2d 830, 833 (Tenn. Crim. App. 1979)

(citations omitted); see, e.g., State v. Antonio L. Saulsberry, No. 02C01-9710-CR-

00406 (Tenn. Crim. App. at Jackson, Dec. 21, 1998), perm. to appeal granted on

other grounds, (Tenn. June 21, 1999). We agree with the appellant that the trial

court should have given a contemporaneous instruction to this effect when the

impeaching statements were offered into evidence following the testimony of Lane,

especially considering the nature of the statement that “the defendant attempted a

robbery and shot the man because the man would not drop his money.” Although

error, the evidence in the record more than adequately established the appellant’s

guilt of this crime. Therefore, the admission of Lane’s prior inconsistent statement


                                           11
absent a contemporaneous limiting instruction, did not affect the outcome of the

trial, and we deem any error to be harmless in accordance with Tenn. R. Crim. P.

52(a). This issue is without merit.



       For all of the foregoing reasons, the judgment of the trial court is affirmed.




                                      ____________________________________
                                      DAVID G. HAYES, Judge



CONCUR:




_________________________________________
JOE G. RILEY, Judge



_________________________________________
JOHN EVERETT W ILLIAMS, Judge




                                          12
