           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                Assigned on Briefs September 13, 2005

                  STATE OF TENNESSEE v. CHRISTOPHER PERRY

                           Appeal from the Criminal Court for Shelby County
                            No. 03-08489    Carolyn Wade Blackett, Judge


                      No. W2004-03004-CCA-R3-CD - Filed December 22, 2005


The Appellant, Christopher Perry1, was convicted by a Shelby County jury of the first degree murder
of Stanley Johnson and was sentenced to life imprisonment. On appeal, Perry raises the following
issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether
the trial court erred in denying a motion to suppress in violation of his Fifth and Sixth Amendment
rights. After review, we conclude the convicting evidence supports the verdict. Moreover, we affirm
the trial court’s order denying Perry’s motion to suppress his statement upon Fifth Amendment
grounds. However, we vacate the trial court’s denial of Perry’s motion to suppress upon Sixth
Amendment right to counsel protections because no findings were entered by the trial court upon the
factual disputes presented. Accordingly, the trial court’s denial of Perry’s Motion to Suppress is
vacated, as is the judgment of conviction, with remand for a suppression hearing consistent with this
opinion.

                          Tenn. R. App. P. 3; Judgment of Conviction Vacated
                                and Remanded for Suppression Hearing

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P. J., and THOMAS
T. WOODALL, J., joined.

Gregory Thomas Carman (on appeal), Memphis, Tennessee; and Jake Werner (at trial), Memphis,
Tennessee, for the Appellant, Christopher Perry.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William L. Gibbons, District Attorney General; Charles Bell and Alexia Fulgham, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

                                                       OPINION

                                                Factual Background



       1
           At several points in the transcript of evidence, the Appellant is referred to as Chris Colehill.
         On the night of July 29, 2003, in the aftermath of a storm which downed power lines and
caused a blackout in Shelby County for several days, the Appellant stopped at his aunt’s house at
1160 James Street in Memphis to check on his mother. After entering the house for a short time, the
Appellant returned to the front porch and noticed that the hood of his red and white 1982 Dodge
truck was up and that someone was under the hood. The Appellant ran toward the victim, whom he
did not know, hitting the victim with a plastic porch chair. The victim, Stanley Johnson, attempted
to flee; however, the Appellant chased after him and upon catching the victim, the two “tussl[ed] for
a while[,] and then they let each other go.” The victim attempted to explain to the Appellant that he
was not trying to steal the truck’s radio, rather he was only checking to see if the radio worked.
Wires, however, could be observed hanging from the space which had housed a radio. The
Appellant, whose demeanor was described as “fired-up, mad, angry,” told the victim that he was “a
walking dead man.” The Appellant then got into a white Dodge truck2 and drove to his mother’s
house on Castilia Street, where he also resided.

        Upon reaching his mother’s house, the Appellant found his brother, his girlfriend, and several
friends present, as the residence was in one of the few areas of Memphis that still had electricity.
Those present described the Appellant as acting “wild, crazy, and just losing his mind,” as he
explained to the group that he had caught someone stealing the radio from his truck. The Appellant
was overheard stating that “he was going to finish the boy off.” He then secured a 9 mm pistol from
his room and asked his girlfriend, Danielle Hardin, to accompany him as he returned to the James
Street address to return his mother home.

        As the Appellant was approaching James Street, he noticed a person on the street and stopped
his truck. Although the street lights provided no illumination, the Appellant recognized the person
as the man who had earlier stolen the truck radio. As the man reached for an object tucked beneath
his arm, the Appellant ran toward the man with his pistol, firing as he ran. The victim collapsed to
the ground. The Appellant ran back to his truck and quickly left the scene. He then drove to the
home of his friend Brian Turner, where he asked to leave the gun to avoid getting “a weapons
charge.” The Appellant explained to Turner that someone had attempted to break into his truck and
that he had been in a fight and had fired the gun.

        The following day Turner learned that a shooting had occurred the previous night, and he
returned the gun to the Appellant’s home, placing it in a boat near the back door. Shortly thereafter,
the pistol was found in the boat by a family member, and several of the Appellant’s friends disposed
of the weapon in Martin Luther King Park in a location near the Mississippi River.

        On July 29th, Darren Boyce with the Crime Scene Department of the Memphis Police was
called to the crime scene and found the victim’s body in the middle of James Street on his stomach
with his hands to the side. Four 9 mm shell casings were also found at the scene. On July 31st,
Officer Frank Sousoulas with the Memphis Police Department was directed to Martin Luther King


         2
         The record suggests that the Appellant returned to his mother’s house on Castilia Street in a white Dodge truck
owned by his grandmother.

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Park where he recovered a 9 mm Beretta semiautomatic on an embankment sloping toward the
Mississippi River. Shelby County Medical Examiner, Doctor O. C. Smith, who performed an
autopsy on the victim, testified that the victim died from a gunshot wound to the back of the head.

       On July 30, 2003, the Appellant’s mother advised her son to report to the police department,
at which time the Appellant gave a statement to Memphis Police Officer James Howell. The
Appellant was Mirandized and signed an advice of rights form. In this statement the Appellant
denied any responsibility for the victim’s death or possessing a firearm.

        While at the dentist’s office recovering from three root canals on August 4, 2003, the
Appellant was arrested for the murder of Stanley Johnson. He was again informed of his Miranda
rights. On this date, the Appellant gave a statement to Sergeant Sims of the homicide bureau
admitting that he did shoot the victim with a 9 mm pistol; however, he claimed that the shooting was
accidental.

        The Appellant was indicted by a Shelby County grand jury in November of 2003 for first
degree murder. An evidentiary hearing on the Appellant’s Motion to Suppress his August 4th
statement was held on October 26, 2004, which was denied. Trial commenced the following day,
with the jury returning a guilty verdict for first degree murder on October 29th. The Appellant was
sentenced to a term of life imprisonment. A motion for new trial was filed on December 15, 2004,
which was denied. Notice of appeal was filed December 20, 2004.

                                              Analysis

I. Sufficiency of the Evidence

       The Appellant asserts that the proof adduced at trial would only justify a finding of second
degree murder or voluntary manslaughter. The Appellant does not contest the fact that he shot the
victim but claims that he fired the shots “in a misguided effort at self-defense.” He contends that
the homicide was not premeditated because of his lack of a prior relationship with the victim and his
knowledge of the history of violence in the neighborhood.

         In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



                                                 -3-
       First degree murder is defined in pertinent part as the “premeditated or intentional killing of
another.” T.C.A. § 39-13-202(a)(1) (2003). Tennessee Code Annotated section 39-13-202(d)
provides:

        As used in subdivision (a)(1) “premeditation” is an act done after the exercise of
        reflection and judgment. “Premeditation” means that the intent to kill must have
        been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist
        in the mind of the accused for any definite period of time. The mental state of the
        accused at the time the accused allegedly decided to kill must be carefully considered
        in order to determine whether the accused was sufficiently free from excitement and
        passion to be capable of premeditation.

T.C.A. § 39-13-202(d). Therefore, in order to convict the Appellant of the indicted offense, the State
was required to prove beyond a reasonable doubt that he killed Johnson with “premeditation.”
Whether premeditation is present is a question of fact for the jury, and it may be inferred from the
circumstances surrounding the commission of the crime. State v. Berry, 141 S.W.3d 549, 565-66
(Tenn. 2004); State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v. Pike, 978 S.W.2d 904, 914
(Tenn. 1998). There are several factors which tend to support the existence of premeditation
including: (1) the use of a deadly weapon upon an unarmed victim; (2) the particular cruelty of the
killing; (3) declarations by the defendant of an intent to kill; (4) evidence of procurement of a
weapon; (5) preparations before the killing for concealment of the crime; and (6) calmness
immediately after the killing. Suttles, 30 S.W.3d at 261.

         The proof established at trial that after the Appellant caught the victim in the act of stealing
the truck radio, a scuffle ensued, and the Appellant advised the victim that he was “a walking dead
man.” The Appellant then returned home and procured his 9 mm pistol and went back to the area
where he had last encountered the victim. Before returning to the scene, the Appellant had informed
others, “I’m fixing to go over here and finish this boy off.” After encountering the victim, the
Appellant got out of his truck and began to run toward the victim who was attempting to flee. The
Appellant began firing at the victim, with the fatal bullet striking the victim in the back of his head.
After the killing, the Appellant acted “normal,” “like nothing happened.” The Appellant then
attempted to hide the murder weapon by leaving it at a friend’s house. We conclude from these facts
that the proof would have permitted a rational juror to find premeditation and that the Appellant was
sufficiently free from excitement and passion to be capable of premeditation.

II. Motion to Suppress

        The Appellant argues that the trial court should have suppressed his August 4, 2003 statement
because it was involuntarily given, and, as such, violated “his due process rights under the Fifth and
Fourteenth Amendments of the United States Constitution and Article 1, § 8 of the Tennessee
Constitution.” Specifically, he asserts that he made the statement in pain “after spending eight and
one half hours at the dentist’s office undergoing three root canals” and while heavily medicated for
these procedures as well as for migraine headaches and depression.


                                                   -4-
        In reviewing a trial court's determinations regarding a suppression hearing, “[q]uestions 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.” State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). Thus, “a trial court's findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Furthermore, the State, as the prevailing party, 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. Id. In reviewing a trial
court’s ruling on a motion to suppress, this court may consider proof adduced at both the suppression
hearing and at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

         With regard to the voluntariness of a confession, “[t]he law in this state is well-established
that ‘[t]he ingestion of drugs and alcohol does not in and of itself render any subsequent confession
involuntary.’” State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000) (quoting State v. Robinson, 622
S.W.2d 62, 67 (Tenn. Crim. App. 1980), cert. denied 454 U.S. 1096, 102 S. Ct. 667 (1981)). “It is
only when an accused’s faculties are so impaired that the confession cannot be considered the
product of a free mind and rational intellect that it should be suppressed.” Id. (citations omitted).
If a defendant understands his or her rights and is capable of making a narrative of past events, the
use of alcohol does not prevent the admission of the statement. State v. Michael Abernathy, No.
03C01-9111-CR-00372 (Tenn. Crim. App. at Knoxville, Oct. 2, 1992). We apply the test of whether
the accused, at the time of the statement, could narrate past events or relate his role in the
commission of the crime. Id.

         The proof at the suppression hearing established that the Appellant was at his dentist’s office
on August 4th from 8:00 a.m. until 4:30 p.m. He testified that his dentist had performed three root
canals and that the dentist had administered pain medication during the procedure. In addition, he
related that he had taken “migraine medication” for a migraine headache that morning and had also
taken prescribed “depression medication.” Without distinguishing their medical purposes, he
described the medication which he took that day as Amitrptyline, Hydrocodone, Railpex
(phonetically), Ibuprofen 800, and another medication he could not pronounce. The Appellant was
sitting in the lobby of the dentist’s office at 4:30 p.m. because he was feeling “groggy” and the
dentist had told him to “just sit down for a minute.” At 4:30 p.m., the police appeared at the
dentist’s office, and he was promptly arrested. The Appellant was transported to the homicide office
at 201 Poplar for questioning. The statement indicates that the Appellant’s statement to Sergeant
Sims began at 5:15 p.m. and was concluded at 6:05 p.m.

        With regard to the waiver of his right not to incriminate himself and his right to counsel, the
Appellant testified that he was unable to make an intelligent decision because he was in extreme
pain, he was crying, he was not “clear-headed,” and he was “half-way under.” The proof also
indicated that the twenty-two-year-old Appellant, who completed the eleventh grade, had no prior
arrest record.

       The proof at the suppression hearing established that approximately two months prior to the
suppression hearing, Sergeant Sims was killed in a boating accident. Sergeant Ernestine Davison,


                                                  -5-
a twenty-two-year veteran of the police department’s homicide bureau, however, was present during
the taking of the Appellant’s statement. Sergeant Davison testified that she was also present when
Sergeant Sims advised the Appellant of his Fifth Amendment rights and that the Appellant initialed
his acknowledgment of those rights. Davison related that the Appellant never requested a lawyer
during her presence. She noted that the Appellant initiated the conversation and was responsive to
questions. Additionally, Davison stated that the Appellant did not appear to be under the influence
of drugs or alcohol, complain of pain, or state that he was on any type of medication.

         Moreover, at trial, Sergeant Fitzpatrick testified that he was present with Sergeant Sims at
the beginning of the interview session with the Appellant. He further stated that “we gave him his
rights” and that the Appellant indicated he understood his rights and he agreed to talk. Fitzpatrick
testified that he observed nothing unusual about the Appellant’s demeanor and stated that the
Appellant did appear to be under the influence of alcohol or narcotics. Fitzpatrick testified that his
participation in the interview ended when the Appellant asked to speak to Sergeant Sims alone.

       In denying the motion to suppress the statement, the trial court concluded:

       Based upon the testimony that I’ve heard, whether or not the statement was given
       voluntarily, knowingly, and intelligently as a result of the root canal, there hasn’t
       been any evidence that there was any medication that was so severe that he could not
       understand, speak and go forward with the statement.

We are unable to conclude that the evidence preponderates against the trial court’s finding that the
statement was given voluntarily, knowingly, and intelligently.

        In a second challenge to the trial court’s denial of the motion to suppress, the Appellant
argues that his statement was taken in violation of his Sixth Amendment rights. In his pre-trial
motion to suppress, the Appellant specifically asserted that at the time of his statement, he had been
placed under arrest for first degree murder, and, as such, his Sixth Amendment right to counsel had
attached. Thus, he argues as the result of the denial of his request for counsel, his statement was
taken in violation of his Sixth Amendment rights.

         The Appellant asserts that during a pre-statement interview period with Sergeant Sims, he
advised Sergeant Sims that he had nothing to say, that his lawyer was on the way, and that he would
wait for his lawyer before making a statement. The Appellant testified at the suppression hearing
that he told Sergeant Sims, “I said I want my lawyer.” According to the Appellant, Sergeant Sims
responded, “you don’t get a lawyer right now” and continued the questioning. The Appellant
testified that during this exchange only he and Sergeant Sims were present. Following the interview,
the Appellant gave a statement admitting to the shooting of the victim, which was then reduced to
writing and signed by the Appellant.

       No factual findings were made by the trial court regarding the Appellant’s assertions at the
suppression hearing that he had requested counsel or the request being denied by Sergeant Sims.


                                                 -6-
Although the trial court did enter findings with regard to the Appellant’s relinquishment of his rights
under the Fifth Amendment, there is a difference between the Fifth Amendment right to counsel and
the Sixth Amendment right to counsel. The right to counsel provided by Miranda under the Fifth
Amendment protects against coercion relative to self-incrimination, thus assuring voluntariness,
while the right under the Sixth Amendment guarantees the right to legal assistance at any critical
confrontation with state officials, irrespective of coercion. In the Sixth Amendment protections, if
adversarial proceedings have begun, the accused may not be subjected to further interrogation by
government authorities until counsel has been made available to him, unless the accused himself
initiates further communication. See Michigan v. Jackson, 475 U.S. 625, 636, 106 S. Ct. 1404, 1411
(1986). Thus, the initial determination is whether adversarial proceedings have been initiated
invoking the Sixth Amendment right to counsel.

        The Sixth Amendment guarantees the accused, after the initiation of formal charges, the right
to rely on counsel as a medium between himself and the State. Maine v. Moulton, 474 U.S. 159,
176, 106 S. Ct. 477, 487 (1985). Unlike the Fifth Amendment, under the Sixth Amendment, the
accused need not make an unequivocal request for counsel to invoke the right. See Jackson, 475
U.S. at 633, 106 S. Ct. at 1409. A presumption exists that the accused requests the services of
counsel at every critical state of the prosecution. Id.

        When a defendant challenges the admissibility of a confession based upon the State’s
infringement of his Sixth Amendment right, the State bears the burden of showing that the appellant
made a knowing and voluntary waiver of his right to counsel; see Brewer v. Williams, 430 U.S. 387,
404, 97 S. Ct. 1232, 1242 (1977), and any doubts must be resolved in favor of protecting the
constitutional claim. Jackson, 475 U.S. at 633, 106 S. Ct. at 1409. In this regard, although not
determinative as to whether a knowing waiver was provided, a specific request for counsel is
considered “an extremely important fact in considering the validity of a subsequent waiver in
response to police-initiated interrogation.” See Id. at n.6.

         Resolution of the issue of whether the Appellant invoked his right to counsel is factually
driven. At the suppression hearing, the trial court made no findings with regard to the Appellant’s
Sixth Amendment rights. This court does not possess fact-finding authority. Our jurisdiction is
appellate only. T.C.A. § 16-5-108 (2003). Thus, in this case in order to resolve the issue, we would
be forced to act as the fact-finder, assess the credibility of the witnesses, and weigh the evidence,
which clearly we are not permitted to do. This court reviews the application of the law to the facts
de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). If the findings are incomplete and/or the
record is insufficient, de novo review cannot be performed if the issue presented is factually
controlled. See Ornelas v. United States, 517 U.S. 690, 700, 116 S. Ct. 1657, 1664 (1996) (Scalia,
J. dissenting). De novo review is permitted to prevent a miscarriage of justice resulting from the
legal determination of a single judge, not to reconstruct the factual determinations of the trial court.
Thus, if the trial court fails to perform its fact-finding obligations, as required by Tennessee Rule of
Criminal Procedure 12(e), an appellate court is prevented from completing any meaningful review
of the law in the absence of any facts. As such, it is necessary that this case be remanded to the trial
court for a determination of whether the Appellant’s Sixth Amendment right to counsel was violated.


                                                  -7-
         Upon remand, if the trial court finds that the Appellant’s August 4th statement was lawfully
obtained, the court shall recite its findings and enter an order accordingly and reinstate the judgment
of conviction. Should the trial court find that the statement was illegally obtained, the State argues
on appeal that its admission at trial during the State’s proof constituted harmless error. This
assertion is based upon the fact that the Appellant’s statement to Sergeant Sims and his testimony
at trial were essentially the same, i.e., that the homicide was accidental. Accordingly, the State
argues under these facts, suppression of the statement and the granting of a new trial are unnecessary.

        In view of the U.S. Supreme Court’s decision in Harrison v. United States, 392 U.S. 219, 88
S. Ct. 2008 (1968), we disagree with the State’s argument of “harmless-error review.” See also State
v. Valentine, 911 S.W.2d 328 (Tenn. 1995) (denying plain error analysis under a Harrison review).
In Harrison, the Supreme Court concluded that a determination is first required to resolve the
question of whether the State’s use of an illegally obtained statement induced the defendant to take
the stand in order to overcome the impact of the statement. This determination has been described
as a two-part inquiry.

       First, the [reviewing] court must consider whether the defendant testified “in order
       to overcome the impact of [statements] illegally obtained and hence improperly
       introduced[.] Harrison, 392 U.S. at 223, 88 S. Ct. 2008. Second even if the court
       concludes that the defendant would have taken the stand, it must determine whether
       the defendant would have repeated the damaging testimonial admissions “if the
       prosecutor had not already spread the petitioner’s confessions before the jury.” Id.
       at 225-26, 88 S. Ct. 2008.

Wisconsin v. Anson, 698 N.W.2d 776, 784 (Wis. 2005).

         Because the error is constitutional in nature, the State bears the burden of proving beyond a
reasonable doubt that the Appellant was not impelled to testify due to the introduction of his
illegally-obtained statement. Harrison, 392 U.S. at 225, 88 S. Ct. at 2011. Thus, in this case, should
the trial court conclude, following a Harrison hearing, that although the statement was illegally
obtained, its admission was harmless beyond a reasonable doubt, the trial court shall enter its order
accordingly and reinstate the judgment of conviction. Should the court find that the statement was
unlawful and its admission was not harmless beyond a reasonable doubt, the trial court shall suppress
the statement and grant a new trial. If the State, the Appellant, or both, disagree with the finding of
the trial court on this issue, either or both may appeal.




                                          CONCLUSION




                                                 -8-
        We conclude that the evidence is legally sufficient to support the Appellant’s conviction for
first degree murder. Moreover, we conclude that the proof does not preponderate against the trial
court’s finding that the Appellant’s statement was not involuntary. However, because the trial court
failed to make any findings with regard to factual disputes involving the Appellant’s Sixth
Amendment right to counsel, remand for a hearing on this issue is required. Accordingly, the
judgment of conviction is vacated, and the case is remanded for a suppression hearing consistent
with the instructions set forth in this opinion.


                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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