         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 14, 2004

             STATE OF TENNESSEE v. SHERIDAN ARMSTRONG

                      Appeal from the Criminal Court for Shelby County
                        No. 01-12797    James C. Beasley, Jr., Judge



                   No. W2003-02100-CCA-R3-CD - Filed October 20, 2004


The defendant, Sheridan Armstrong, was convicted of felony murder and aggravated child abuse.
The trial court ordered concurrent sentences of life with the possibility of parole and twenty years,
respectively. In this appeal of right, the defendant contends that the trial court erred by failing to
suppress his statement to police and argues that the evidence supporting each conviction was
insufficient. The judgments of the trial court are affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN , JJ., joined.

Garland Erguden (on appeal), Phyllis Aluko (at trial), and Karen Massey (at trial), Assistant Public
Defenders, for the appellant, Sheridan Armstrong.

Paul G. Summers. Attorney General & Reporter; Michelle Chapman McIntire, Assistant Attorney
General; and Linda Kirklen and James Wax, Assistant District Attorneys General, for the appellee,
State of Tennessee.

                                             OPINION

        In January of 2001, Tameka Stuckey, the mother of the twenty-two-month-old male victim,
Jaylon Stuckey, resided with her two children and the defendant in an apartment in Memphis. After
an argument, the defendant provided her with the money necessary to purchase medication for the
victim, who had a cold. When Ms. Stuckey returned an hour or two after her departure, her mother
was present and informed her that the victim had been taken to the hospital. The defendant had
telephoned 911 and accompanied the victim to the hospital in the ambulance. Three hours later, Ms.
Stuckey learned from hospital personnel that the victim’s heart had stopped.
        Lieutenant Reginald Morgan of the Memphis Police Department interviewed the defendant.
After initially denying that he had harmed the victim, the defendant later confessed in a typewritten
statement that provided, in part, as follows:

        I got home, me and [Ms. Stuckey] was arguing and she was talkin[g] about moving
        to Mississippi to work at Walmart and I told [her] I was gonna get my clothes and
        move back home with my mom. I tried to talk to her about our problems because I
        didn’t want her to go.

        We worked it out and she asked me for some money to go to get [the victim] some
        medicine. [Ms. Stuckey] left and me and [the victim] was left at the house. I was
        cleaning up the house after she left and [the victim] got up out the bed and he was
        crying and he was getting to me and I asked him to be quiet. I told [the victim] I
        loved him and after that I kicked him once in his chest and he fell on the floor. He
        got up on his own and he was crying. I kicked him again and he fell on the dresser
        and bumped the back of his head and he fell to the floor. I picked him up and put
        him on the couch and called his grandma and told her he wasn’t responding to me.
        ...

         The Shelby County Medical Examiner, Dr. O’Brian Clary Smith, who performed the autopsy,
found “blunt trauma to the head, blunt trauma to the chest that produced injury to the internal organs
o[f] the chest, blunt trauma to the abdomen that produced internal injuries to the abdomen, with . .
. extensive tearing of the liver, [and] associated bleeding that put the child into shock” resulting in
death. Dr. Smith found that the injuries were comparable to those expected in a fall from twenty-two
feet or an automobile accident at twenty-five miles per hour. It was his opinion that the nature of
the injuries was consistent with the victim’s having been kicked twice by an adult and having struck
his head on a piece of furniture. Dr. Smith concluded that the victim would have shown symptoms
of his injuries immediately and would have been in shock within a matter of minutes, dying no more
than two hours later. It was his belief that the death was a homicide.

        At trial, Frank Cole, the victim’s biological father, testified on behalf of the defense, implying
that Ms. Stuckey may have been responsible for the injuries. He stated that he observed a burn on
the victim’s leg in May of 2000 and took him to the doctor in spite of Ms. Stuckey’s wishes to the
contrary. Cole acknowledged during cross-examination that he had never seen Ms. Stuckey “raise[]
a hand to either one of her children.”

         The defendant, testifying on his own behalf, professed his love for the victim and denied that
he had kicked him. He stated that he met Tameka Stuckey at Wal-Mart, their place of employment,
and moved in with her some months later. The defendant testified that on the morning of the
victim’s death, he interviewed for a second job at McDonald’s and then stopped at his mother’s
residence before returning to the apartment he shared with Ms. Stuckey and her family. He recalled
that he and Ms. Stuckey watched a movie before he returned to his mother’s residence. He claimed
that later, Ms. Stuckey telephoned, asking that he return her car. According to the defendant, his


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younger brother, who had spent the night, and Ms. Stuckey’s older child had left the apartment with
Ms. Stuckey’s aunt by the time of his return. He maintained that because the victim had been sick
for a week, he gave Ms. Stuckey money to purchase medicine. The defendant contended that after
she left, he was cleaning the house when he noticed something wrong with the victim. He claimed
that after calling both his mother and Ms. Stuckey’s mother, he telephoned 911 twice and
accompanied the victim to the hospital. The defendant testified that while the victim was being
treated at the hospital, he asked to borrow Ms. Stuckey’s car to pick up his mother. According to
the defendant, he stopped at his residence to drop off some groceries Ms. Stuckey had left in the car,
phoned his mother, and then learned that the victim had died. The defendant acknowledged that each
detail he had provided in his five-page statement to the police was truthful with the exception that
he had not kicked the victim. He explained that he confessed to kicking the victim only because he
felt threatened by the officers, one of whom had a gun on the table, and because they had promised
he would be released.

                                                   I

       Initially, the defendant contends that the trial court erred by failing to suppress his pre-trial
statement to police. The state disagrees.

        At the hearing on the motion to suppress, Lieutenant Robert Shemwell, who assisted
Lieutenant Morgan with the interview of the defendant, conducted eight days after the victim’s death,
confirmed that Lieutenant Morgan advised the defendant of his Miranda rights. According to
Lieutenant Shemwell, while the defendant informed the officers that he had a tenth grade education
and could not read well, he was able to read the advice of rights form aloud before affixing his
signature. It was his recollection that the defendant was not under the influence of alcohol or drugs,
was not acting in an unusual manner, understood the questions, and conversed coherently.
Lieutenant Shemwell testified that the defendant initially denied involvement in the victim’s death,
but confessed to having kicked the victim when confronted with the medical examiner’s findings.
He recalled that the defendant agreed to give a written statement and that Anne Langford, a
transcriptionist with the department, typed the questions and the responses. He testified that after
the interrogation, another department employee read the statement to the defendant, who then signed
it. According to Lieutenant Shemwell, the statement was begun at 4:30 p.m. on January 11, 2001,
and ended at 6:10 p.m. He acknowledged that the defendant’s arm was handcuffed to his chair
during questioning, but denied that either he or Lieutenant Morgan had ever threatened the
defendant, behaved in a physically aggressive manner with the defendant, or promised the defendant
that he would be released if he gave a statement. The lieutenant, who stated that he was unarmed
during the interrogation, testified that the defendant neither requested an attorney nor gave any
indication that he was in physical discomfort. He testified that the statement was not tape recorded
because it was department policy to take a written statement when a transcriptionist was available.

        Lieutenant Morgan generally confirmed the testimony of Lieutenant Shemwell. He recalled
that after he advised the defendant of his Miranda rights, the defendant read the first three lines of
the advice of rights form aloud and the remainder to himself. The officer testified that the defendant


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was coherent, understood his rights, and was free from the influence of any drugs or alcohol. He
recalled that during the course of the interview, they provided the defendant with a soft drink, potato
chips, and bathroom breaks. Lieutenant Morgan stated that the defendant was calm during the first
two to three hours, but showed nervousness when they began discussing his involvement in the
victim’s injuries. He denied being armed during the interrogation and further denied threatening to
“fry [the defendant] for this.” According to Lieutenant Morgan, the defendant “started crying at the
emotion he felt for the child . . . . And he made the statement to us that if they do charge me, I hope
they . . . charge me with murder one because of what I have done.”

         Dr. Fred Steinberg, a clinical and forensic psychologist, testified on behalf of the defendant.
He stated that after performing a forensic psychological evaluation of the defendant, it was his
opinion that the defendant suffered from mild mental retardation. The doctor determined that the
defendant had a verbal IQ of 64 and a full-scale IQ of 61, accompanied by a consistent level of
reading comprehension difficulty. He related that the defendant read on a third-grade level and that
the advice of rights form provided for his signature was written on a fifth-grade level. Dr. Steinberg
testified that it was his opinion that the defendant “was not able to read and understand his advi[c]e
of rights.” It was also his opinion that the defendant was in the third percentile of the population in
listening comprehension. Upon questioning, he conceded that it was “hard to say” what impact the
defendant’s prior experience with the criminal justice system had on his comprehension of his
Miranda rights.

        The defendant testified that he did not recall being advised of his Miranda rights at any time
or having anyone read his five-page statement to him. He stated that the officers who interrogated
him were “rude” and spoke to him like they were “upset.” The defendant contended that one officer,
whom he could not identify, threatened to “shoot [his] ass” and that they promised him he could go
home if he cooperated. He insisted that had he understood his rights, he would have refused to speak
to police and would have requested an attorney. Although the defendant could not recall signing
anything, he acknowledged that his signature appeared on the typewritten statement. Angela
Armstrong, the defendant’s mother, was also a witness at the suppression hearing. She testified that
the twenty-three-year-old defendant could not read and has a short attention span.

        Dr. Lynn Zager, a Ph.D. psychologist and the forensic services director of Mid-Town Mental
Health Center, provided rebuttal testimony on behalf of the state. While Dr. Zager acknowledged
that the defendant was mildly retarded, she did not believe that he was as “low functioning” as his
school records indicated. Dr. Zager testified that after she told the defendant that her examination
was not confidential, the defendant correctly interpreted her comment to mean, “Whatever I show
you, you show the [j]udge, the prosecutor and the lawyer.”

       At the conclusion of the suppression hearing, the trial court found that the defendant
understood his Miranda rights and that his confession to police was knowing and voluntary:

                I am . . . going to consider the fact based on the proof from the juvenile court
       file that [the defendant] has been through the juvenile system. He was represented


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       by an attorney at that time. And so he has some familiarity not only with . . . the
       legal system, but he has some familiarity with the fact that he . . . is entitled to a
       lawyer.
                I also note that both doctors, Dr. Zager and Dr. Steinberg, agreed that [the
       defendant] showed some signs of malingering . . . .
                I did note . . . that [the defendant is] able to drive an automobile. . . . I did
       note that he was able to cite and give his social security number, his phone number,
       his address. He was able to give [that] information clearly and concisely.
                                             *      *        *
       [I]t’s obvious to the court that [the defendant] has the ability to recall details,
       specifically spell those details out, repeat those details to law enforcement officers.
       So that in my opinion he has the ability to hear, exist, live, and comprehend what’s
       going on around him and to feed that information back. So it’s obvious to the court
       that [the defendant], although having a lower than normal IQ, is able to function and
       carry on a daily lifestyle within our society.
                                             *      *        *
                The court must note from the advice of rights form that . . . there is nothing
       about this . . . form that is complicated or that is complex.
                                             *      *        *
                I must add . . . [that] in this court’s opinion, it was obvious that [the
       defendant] was being evasive in some of his answers.
                                             *      *        *
                The court finds that [the defendant] is able to . . . rationally conclude what
       answers he wants to give and what answers he doesn’t want to give. . . . The court
       is of the opinion that [the defendant] understood the rights that were read to him by
       the officers in this case. That [the defendant] acknowledged and understood . . .
       those rights and that he acknowledged and stated willingly and freely and voluntarily
       that he was willing to give those rights up and to give a statement to the officers.

        It is the duty of the trial judge to determine the voluntariness and the admissibility of a
defendant’s pretrial statement. State v. Pursley, 550 S.W.2d 949, 952 (Tenn. 1977). The trial court’s
determination that a confession was given knowingly and voluntarily is binding on the appellate
courts unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). Questions about witness credibility and “resolution of conflicts in the evidence are matters
entrusted to the trial judge.” Id. Testimony presented at trial may be considered by an appellate
court in deciding the propriety of the trial court’s ruling on a motion to suppress. State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998). If the “greater weight” of the evidence supports the court’s
ruling, it will be upheld. Id. Yet, this court must conduct a de novo review of the trial court’s
application of law to fact. State v. Bridges, 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan, 958
S.W.2d 626 (Tenn. 1997).

        In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court ruled that
before a custodial interrogation, police officers must advise a defendant of the right to remain silent


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and the right to counsel. If these warnings are not given, any statement elicited from a defendant is
not admissible in trial. Dickerson v. United States, 530 U.S. 428 (2000); Stansbury v. California,
511 U.S. 318, 322 (1994). A defendant’s rights to counsel and against self-incrimination may be
waived as long as the waiver is made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.
at 479; State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). In order for an accused to effect
a waiver, he must be adequately appraised of his right to remain silent and the consequence of
deciding to abandon it. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In determining
whether a confession was voluntary and knowing, the totality of the circumstances must be
examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

        In our view, the record supports the trial court’s determination that the confession was
knowingly and voluntarily made. Although the mental health experts concluded that the defendant
was mildly mentally retarded, each characterized him as “high functioning.” The defendant was able
to drive, hold down a job, and otherwise function in society on a day-to-day basis. The officers who
interrogated the defendant testified that he was coherent and appeared to understand his rights. The
defendant had, in fact, had previous experience with the police and the court system as a juvenile.
Under these circumstances, the trial court did not err by admitting the confession. The evidence does
not preponderate against the trial court’s determination that the statement was knowing and
voluntary.

                                                   II

        Next, the defendant contends that the evidence presented at trial was insufficient to support
either of his two convictions. On appeal, of course, the state is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which might be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be
given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury
as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the
sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the
evidence in the light most favorable to the state, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of the witnesses,
the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved
by the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict
of guilt removes the presumption of innocence and raises a presumption of guilt, the convicted
criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

        Child abuse occurs when “[a]ny person . . . knowingly, other than by accidental means, treats
a child under eighteen (18) years of age in such a manner as to inflict injury.” Tenn. Code Ann. §
39-15-401(a). Child abuse becomes aggravated when it either results in serious bodily injury to the
child or a deadly weapon is used to accomplish the act. Tenn. Code Ann. § 39-15-402(a). First



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degree murder is the “killing of another committed in the perpetration of or attempt to perpetrate .
. . aggravated child abuse.” Tenn. Code Ann. § 39-13-202(a)(2).

        The defendant’s argument is based primarily upon his contention that his confession to police
should have been excluded. As we have already stated, however, the confession was properly
admitted and considered by the jury. The autopsy revealed that the victim died of multiple internal
injuries caused by blunt trauma to the head and chest. It was the medical examiner’s opinion that
the injuries would have manifested themselves immediately and resulted in the victim’s death in no
more than two hours. The victim’s mother, Tameka Stuckey, testified that the victim was uninjured
when she left the residence to purchase medicine for him and run other errands. While she was gone,
he was in the sole care of the defendant. The defendant admitted to police that, stressed by the state
of his relationship with Ms. Stuckey, he kicked the victim twice in the chest, causing him to strike
his head on a piece of furniture. The evidence was sufficient to establish the defendant’s guilt
beyond a reasonable doubt of both aggravated child abuse and felony murder. Dual convictions
under these circumstances do not violate double jeopardy principles. State v. Godsey, 60 S.W.3d
759 (Tenn. 2001).

       Accordingly, the judgments of the trial court are affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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