         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 1, 2005

                 STATE OF TENNESSEE v. MACK T. TRANSOU

                     Appeal from the Circuit Court for Madison County
                         No. 02-359    Roy B. Morgan, Jr., Judge



                    No. W2004-01475-CCA-R3-CD - Filed June 30, 2005


The defendant, Mack T. Transou, stands convicted of rape and sexual battery, for which he received
an effective sixteen-year sentence. Aggrieved of his convictions and sentence, the defendant brings
the instant appeal challenging the trial court’s denial of his motion to suppress DNA evidence and
the imposition of his sentence in violation of his right to trial by jury. Following our review upon
the record, we affirm the defendant’s convictions and sentence.

              Tenn. R. App. P. 3; Judgments of the Circuit Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ., joined.

Mike Mosier, Jackson, Tennessee, for the Appellant, Mack T. Transou.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; Jerry
Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                            OPINION

               Because the defendant does not attack the sufficiency of the evidence to support his
two convictions, we will only summarize those facts relevant to the issue whether the DNA evidence
collected from the defendant should have been suppressed. The defendant was previously convicted
of being a habitual motor offender and began serving his incarcerative sentence for that offense on
September 7, 1999. As part of the intake process in 1999, the incoming inmates received physicals
and had blood samples drawn to test for, inter alia, communicable diseases. The incoming inmates
all received several forms, one of which was a consent form to allow a Tennessee Department of
Correction (TDOC) agent to draw a blood sample. As indicated on the form, the inmates had a right
to refuse to consent. If an inmate refused to sign the form, the TDOC would conduct an
administrative hearing on the matter. According to the defendant, the usual result of this proceeding
would be that the defendant would be taxed the cost of the hearing, would lose sentencing credits,
and would nevertheless be forced to provide a blood sample.

                When the defendant was presented with the consent form on September 7, 1999, he
signed the form on the line indicating that he consented to providing the blood sample. The
defendant left blank a second signature line indicating he refused to consent, and he signed the form
on another line indicating that he had read the entire form and understood the contents of the form.
Subsequently, a TDOC agent drew a sample of the defendant’s blood, and the resulting DNA profile
generated from that blood sample was placed in the Combined DNA Index System (CODIS), a
database containing the DNA profiles of convicted offenders.1

                On March 17, 2002, the defendant entered the bedroom of C.T.,2 a 62-year-old
woman living in a boarding house in Jackson, Tennessee. The defendant vaginally raped the victim
and performed oral sex on her. After she reported the rape to police, investigating officers brought
the victim to a hospital where medical professionals performed a rape-kit examination on her. The
examination recovered a semen sample, from which Tennessee Bureau of Investigation (TBI)
forensic analysts extrapolated a DNA profile. This profile was then entered into CODIS, and the
database matched the defendant’s DNA profile to that of the victim’s assailant.

                 Subsequently, police officers arrested the defendant on May 15, 2002, and the
defendant was held overnight until a police officer interviewed him the following morning. The
officer testified that he interviewed the defendant to learn more about the defendant’s involvement
in the instant crime and also to obtain the defendant’s DNA for generating a DNA profile. This
DNA profile would then be compared with the defendant’s 1999 profile and the victim’s
perpetrator’s profile, thereby confirming that the defendant was indeed the perpetrator. During the
interview, the defendant refused to sign a waiver of his constitutional rights and make a statement
about the instant crime. He did, however, sign a consent form allowing the police to collect a blood
sample from him.3 Thereafter, the police transported the defendant to a family practice center where

         1
                  The defendant submitted blood samples on three different occasions. The first blood sample was given
in 1999, as outlined above. In 2000 the defendant submitted a second blood sample at the commencement of an
unrelated sentence as part of the intake process at the same penal institution where he submitted a blood sample in 1999.
However, a DNA profile generated from the second blood sample was not entered into the CODIS database because the
defendant’s DNA profile had been entered in 1999. As discussed infra, the defendant gave a third blood sample in 2002
when police identified him as a suspect for the instant crimes after the defendant’s 1999-generated DNA profile matched
the DNA profile extrapolated from the victim’s rape kit.

         2
                  It is the policy of this court to refrain from referring to victims of sexual crimes by name.

         3
                   During the police interrogation, only the interviewing officer and the defendant were present, and the
interview was neither video-taped nor audio-recorded. At the conclusion of the suppression hearing, the trial court
specifically accredited the officer’s testimony that the defendant refused to sign a waiver form and make a statement but
did sign the 2002 consent form allowing the police to collect a blood sample from him. Furthermore, after noting the
court’s familiarity with the defendant’s signature and comparing the signature on the 2002 consent form to known
examplars of the defendant’s signature, the trial court found that the signature on the consent form was indeed the
                                                                                                            (continued...)

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his blood was drawn, and the blood sample was then transported to the TBI crime lab for analysis.
The resulting DNA profile confirmed that the defendant’s DNA profile matched the profile of the
victim’s perpetrator.

                 Pre-trial, the defendant moved to suppress this evidence, and following an evidentiary
hearing, the trial court denied the motion. Specifically, the trial court found that the statute requiring
that inmates allow collection of blood samples for DNA profiling was not applicable to the defendant
when the TDOC agent collected his blood on September 7, 1999, because the statute was not
effective when the defendant committed the crime for which he was then being incarcerated. See
Tenn. Code Ann. § 40-35-321(d)(1) (2003) (requiring that “a person convicted of any felony offense
committed on or after July 1, 1998” shall be required “to provide a biological specimen for the
purpose of DNA analysis”). However, the court found that the September 7, 1999 blood sample was
not collected in contravention of the defendant’s rights because the defendant consented to the
procedure. Specifically, the court found that the TDOC agents explained the consent form to the
defendant and that he had an opportunity to refuse to consent and did not do so. Moreover, the
defendant explained his reasons for consenting to the procedure. Noting the defendant’s extensive
criminal history and familiarity with the TDOC system, the court found that the defendant consented
to the September 7, 1999 blood collection after being advised and having an opportunity to refuse
to consent. The court further found that the defendant’s May 16, 2002 consent was also voluntarily,
knowingly, and intelligently made. In so finding, the court found the defendant’s testimony
incredible but accredited the testimony of the officer who witnessed the defendant sign the 2002
consent form.

                 In the instant appeal, the defendant challenges the trial court’s admission of his DNA
evidence on the basis that the evidence was collected in contravention of his constitutional rights
against unreasonable searches and seizures and his sentence as being imposed in violation of his
right to trial by jury. Based on the following analysis, we affirm the lower court’s admission of
evidence and the defendant’s sentence.

                                         Suppression of DNA Evidence

                The defendant argues that the trial court erroneously admitted the DNA profiles
generated from his illegally obtained blood samples. Specifically, the defendant argues that his
blood samples were collected in violation of his rights against unreasonable searches and seizures
and that this evidence was the sole basis for his convictions. The defendant avers that the collection
of blood samples and subsequent analysis is a search and seizure that falls within the purview of
Fourth Amendment protection and that the defendant’s blood sample was collected without probable
cause, individualized suspicion, or in furtherance of any “special needs,” thus violating his
constitutional protection. The defendant also contends that his consent to both of these searches and
seizures was ineffectual because his consent to the 1999 blood collection was made under duress and


         3
         (...continued)
defendant’s signature, despite the defendant’s assertions to the contrary.

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threat of disciplinary action if he refused to consent and because his 2002 consent was made after
being detained for 12 hours without counsel, under duress by threats to obtain a warrant for the blood
collection if the defendant refused to consent. In response, the state counters, inter alia, that the
defendant knowingly, intelligently, and voluntarily consented to both blood collections.

                A trial court’s findings of fact made in relation to a suppression hearing are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). Moreover, the trial court, as the trier of fact, is able to
assess the credibility of the witnesses, determine the weight and value to be afforded the evidence,
and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). On
appeal the prevailing party is entitled to the strongest legitimate view of the evidence and all
reasonable inferences drawn therefrom. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The
defendant, as the nonprevailing party, has the burden of establishing that the evidence contained in
the record preponderates against the findings of fact made by the trial court. Braziel v. State, 529
S.W.2d 501, 506 (Tenn. Crim. App. 1975). However, this court is not bound by the trial court’s
conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). We review de novo the
application of the law to the trial court’s findings of fact. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.
2000).

                 “According to both the Fourth Amendment and [A]rticle I, § 7 of the Tennessee
Constitution, ‘a warrantless search or seizure is presumed unreasonable, and evidence discovered
as a result thereof is subject to suppression unless the State demonstrates that the search or seizure
was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.’” See
State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002). It is well settled that a search conducted
pursuant to a voluntary consent is an exception to the warrant requirement. State v. Bartram, 925
S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041
(1973)).
                 “[T]o pass constitutional muster, consent to search must be unequivocal, specific,
intelligently given, and uncontaminated by duress or coercion.” State v. Brown, 836 S.W.2d 530,
547 (Tenn. 1992). The question whether the appellant voluntarily consented to the search is a
question of fact which focuses upon the totality of the circumstances. Schneckloth, 412 U.S. at 248-
49. The following factors are used to evaluate the voluntariness of the consent: (1) whether the
defendant is in custody; (2) the length of detention prior to the giving of consent; (3) the presence
of coercive police procedures; (4) the defendant’s awareness of the right to refuse to consent; (5) the
defendant’s age, education, and intelligence; (6) whether the defendant understands his constitutional
rights; (7) the extent of the defendant’s prior experience with law enforcement; and (8) whether the
defendant was injured, intoxicated, or in ill health. See, e.g., State v. Carter, 16 S.W.3d 762, 769
(Tenn. 2000). Moreover, the state must show “more than acquiescence to a claim of lawful
authority.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788 (1968). The burden of
proof rests upon the state to show, by a preponderance of the evidence, that the consent to a
warrantless search was given freely and voluntarily. Id. at 548.




                                                  -4-
                In the instant case, we hold that the evidence does not preponderate against the trial
court’s determination that the defendant’s 1999 and 2002 consents were valid. The trial court found
that the defendant consented to provide a blood sample in 1999 after being advised of the procedure
and his right to consent or refuse:

               As to the issue dealing with the biological specimen that was taken
               while this Defendant was in the Tennessee State Penitentiary, I note
               two or three things. It was very clear that the individuals, as Mr.
               Transou also testified to, are brought in a group. It might be 10, it
               might be 20 or somewhere in between, and they are advised of the
               procedure. The procedure under which Mr. Transou was taken in
               dealt with this statute requiring DNA analysis, but it’s very clear from
               the consent forms, 2A and 2B, let’s talk about 2A first, that it was a
               consent for DNA analysis. It does state – set forth the statute and the
               consequences of not giving it and the requirement of the law to give
               it, but it also clearly has the provision for the defendant to refuse to
               participate in the testing process, even though there may be
               consequences, as the Defendant testified to. But the prior witnesses
               testified that this is explained, including the right to refuse and this
               Defendant did – as he’s testified, this is his signature. He did sign the
               form on September the 7th of ‘99 giving consent to take the
               biological specimen. He had a chance to refuse. The only thing that
               concerns the court is it’s being taken under the circumstances as if
               that statute required it. I note that as a similar situation on this
               August the 9th of 2000[sic]. Again, the same type form, consent for
               DNA analysis, same type [sic] circumstances, again the Defendant
               given an opportunity to refuse it but didn’t. He has his own
               explanation as to why he didn’t refuse it and that’s that he would
               suffer consequences if he didn’t, but he is well experienced in the
               TDOC system, in the way it operates. He even testified he knew
               when the law [requiring a biological specimen for DNA analysis]
               took effect. I find that he freely, voluntarily and intelligently knew
               what he was doing at the time he signed the form giving consent for
               that specimen on both those occasions, after being given the
               opportunity to refuse.

The defendant challenges these findings by arguing that he signed his 1999 consent form under
duress. At his suppression hearing, the defendant testified that he was aware that there could be
negative consequences if he chose to refuse to consent to the blood collection, and therefore he did
not have an actual choice regarding whether to submit to the procedure. However, TDOC agents
informed the defendant of the blood collection process and explained the consent form to the
defendant. The consent form itself indicates that only those who have been convicted of a felony
offense on or after July 1, 1998 are required to provide a biological specimen for DNA analysis. The


                                                 -5-
form also contains three signature lines. A signature on one line indicates that the undersigned
consents to the blood collection; a signature on a second line indicates that the undersigned refuses
to consent to the blood collection; a signature on a third line indicates that the undersigned has read
and understands the contents of the form. The defendant’s two signatures reflect that he consented
to the blood collection and that he had read the entire form and understood its contents. Thus, he
was provided with an opportunity to refuse to consent and did not do so. Any threat of future
disciplinary action that the defendant believed would befall him if he refused to consent to the blood
collection did not equate to eliminating his right to refuse. See Brown, 836 S.W.2d at 547 (signature
on a consent form that referenced the defendant’s right to refuse validated the resulting search); cf.
Bumper, 391 U.S. at 550, 88 S. Ct. at 1792 (holding that a defendant’s consent to search was invalid
when the defendant consented after police claimed to have a warrant to search the defendant’s home
because the police action conveyed that the defendant had “no right to resist the search”).

                 Furthermore, we find that the record does not preponderate against the trial court’s
finding that the defendant’s consent to allow police to collect his blood in 2002 was valid, as well.
At the suppression hearing, the defendant claimed that he did not sign the 2002 consent form.
However, the interviewing police officer testified that he witnessed the defendant sign this form, and
the trial court specifically accredited his testimony and discredited the defendant’s testimony. See
Odom, 928 S.W.2d at 23 (trial court is in the best position to assess the credibility of the witnesses).
Furthermore, after noting the court’s familiarity with the defendant’s signature and comparing the
signature on the consent form to known exemplars of the defendant’s signature, the trial court found
that the signature on the consent form was indeed the defendant’s signature. Accordingly, the court
found that the defendant’s consent was voluntarily and intelligently made. The evidence in the
record does not preponderate against this finding.

               Thus, examining the totality of the circumstances, we hold that the record supports
the finding that the defendant knowingly, intelligently, and voluntarily consented to both blood
sample collections.

                                   Violation of Right to Jury Trial

                The defendant next challenges his sentence on the basis that the trial court
erroneously applied enhancement factors to his sentence in violation of his constitutional right to
trial by jury. Specifically, the defendant contends that pursuant to Blakely v. Washington, 542 U.S.
__, 124 S. Ct. 2531 (2004), several of the enhancement factors require a jury finding of
applicability. However, our Tennessee Supreme Court has recently held that notwithstanding the
United States Supreme Court’s holding in Blakely, the Tennessee sentencing structure does not run
afoul of the Sixth Amendment. State v. Gomez, __ S.W.3d __, No. M2002-01209-SC-R11-CD, slip
op. at 27 (Tenn. Apr. 15, 2005), petitions for reh’g denied, (May 2005). Accordingly, the
defendant’s allegation of error lacks merit.

              In conclusion, none of the defendant’s allegations merit relief, and therefore, the
defendant’s convictions and sentence are affirmed.


                                                  -6-
      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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