        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 12, 2015


          STATE OF TENNESSEE v. JEFFREY OWEN SMITHSON

                  Appeal from the Circuit Court for Coffee County
                       No. 38951    Vanessa Jackson, Judge




              No. M2015-00863-CCA-R3-CD – Filed February 12, 2016
                        _____________________________

Jeffrey Owen Smithson (“the Defendant”) appeals from his convictions for first degree
felony murder, theft over $1,000, first degree premeditated murder, and especially
aggravated robbery. The Defendant contends that (1) the evidence is insufficient to
support his convictions; (2) the trial court erred in denying his motion for mistrial based
upon a witness‟s testimony that the Defendant had been recently released from prison;
and (3) the trial court erred in denying the Defendant‟s motion to suppress his statement
to police as not voluntarily given. Upon review, we affirm the judgments of the trial
court.

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

ROBERT L. HOLLOWAY, JR., J. delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

John Nicoll, District Public Defender; and Margaret C. Lamb, Assistant District Public
Defender, Tullahoma, Tennessee, for the appellant, Jeffrey Owen Smithson.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Craig Northcott, District Attorney General; and Marla R. Holloway,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                        I. Factual and Procedural Background

       This appeal involves the murder of the Defendant‟s aunt, eighty-one-year-old
Virginia White, in her home in Coffee County on August 16, 2011. The Defendant had
lived with the victim at the time of the offense. However, when officers discovered the
victim‟s body on August 17, the Defendant and the victim‟s car were missing. The next
day, police found the Defendant with the victim‟s car in Cannon County, at which time
the Defendant was taken into custody. The Defendant gave a statement to police in
which he admitted to killing the victim.

        In October 2011, the Coffee County Grand Jury indicted the Defendant for first-
degree felony murder, theft of property over $1,000, first-degree premeditated murder,
and especially aggravated robbery in connection with the victim‟s death. The State then
filed a notice of intent to seek life without parole.

                                   Motion to Suppress

       Prior to trial, the Defendant filed a motion to suppress his statement. At a hearing
on the motion, Investigator Ray “Butch” Stewart, Jr. of the Manchester Police
Department testified that, on August 18, 2011, he responded to a wooded area in Cannon
County after receiving an alert that the victim‟s vehicle had been located there.
Investigator Stewart recalled that, as he and several other officers approached the
victim‟s car, he saw movement inside the vehicle and then a hand reaching toward the
car‟s rearview mirror. Investigator Stewart pulled out his weapon and yelled, “Let me
see your hands.” The occupant of the car immediately complied and stuck his hands out
of the car window. Investigator Stewart ordered the occupant, whom he recognized as
the Defendant, to turn around and walk backwards towards him. The Defendant followed
Investigator Stewart‟s verbal commands and was able to walk backwards toward the
sound of his voice without stumbling or falling.

       Investigator Stewart testified that he conducted a pat down of the Defendant at the
back of the victim‟s car. Although in a report Investigator Stewart later described the
Defendant as looking “sick,” he explained that the Defendant looked “worn out” and had
lost a lot of weight since the last time that he had seen the Defendant. However, the
Defendant was not trembling or vomiting and did not appear to be in pain at the time of
his arrest. As the Defendant was being handcuffed, Chief Mark Yother asked the
Defendant if he knew why officers were there, and the Defendant “shook his head yes.”
The Defendant also recognized Investigator Stewart and asked if Investigator Stewart
remembered him. Investigator Stewart testified that Chief Yother then read the
                                             -2-
Defendant his Miranda rights, and the Defendant indicated that he understood those
rights. Although Investigator Stewart remained with the victim‟s car when the Defendant
was transported to the police department, Investigator Stewart testified that he engaged in
small talk with the Defendant later that day at the station and the Defendant did not
appear to be under the influence of drugs or alcohol.

       Chief Mark Yother of the Manchester Police Department testified that, around
3:00 p.m. on August 18, 2011, he accompanied Investigator Stewart to the location of the
victim‟s car in a wooded area in Cannon County. He recalled that Investigator Stewart
saw movement inside the car as they approached and Investigator Stewart ordered the
occupant of the car, who was later identified as the Defendant, to “get his hands up and . .
. out the window.” Chief Yother testified that the Defendant had no problems
understanding and complying with Investigator Stewart‟s directions. Chief Yother
agreed that, in his thirty years in law enforcement, he had had the opportunity to deal
with individuals who were intoxicated due to drugs and alcohol. However, he stated that
the Defendant did not appear to be intoxicated when taken into custody.

       Chief Yother testified that he advised the Defendant of his Miranda rights and the
Defendant said that he “understood his rights and knew what he was doing.” Chief
Yother then walked the Defendant back to the roadway and let the Defendant smoke a
cigarette. Chief Yother testified that the Defendant had no trouble walking out of the
woods and the Defendant did not appear to be injured in any way. Officers placed the
Defendant in the back of a patrol car, and Chief Yother rode to the police department in
the backseat with the Defendant. Chief Yother stated that, during the ride, the Defendant
assisted the officers with directions in getting back to the main highway. As the
Defendant gave the officers directions, he explained that he had grown up in the area.
Chief Yother then asked the Defendant to tell him “what happened at [the victim‟s]
house.” The Defendant said that, after lunch on Tuesday, August 16, he was in a
bedroom at the victim‟s house when the victim came into the room “fussing about him
using drugs and about him being on drugs.” The Defendant stated that the victim slapped
him during this confrontation and, in response, he “knocked the hell out of [the victim].”
The Defendant admitted that he hit the victim more than one time. The Defendant also
“remembered getting the pantyhose out of a drawer in the bedroom” but did not
remember strangling the victim with the pantyhose. The Defendant stated that he took
morphine but he had not had any on the day of the offense and he was “dope sick” at the
time of the offense. The Defendant told Chief Yother that, after he killed the victim, he
went into the bathroom and cried for a “long time.” He stated that it was dark outside
when he left the bathroom. According to Chief Yother, the Defendant also admitted to
stealing the victim‟s jewelry, some coins, and her car. Then, the day after the murder, the
Defendant and a friend went to McMinnville to get some parts for a vehicle that they had
been working on. On the morning of August 18, the Defendant obtained and “shot up”
                                           -3-
morphine. Chief Yother testified, however, that the Defendant did not seem confused,
intoxicated, or high on drugs at the time of his arrest and statement. Chief Yother denied
that he had threatened the Defendant, used physical force, or promised the Defendant
anything in connection with his statement. He recalled that he patted down the
Defendant once they arrived at the police department and found some dollar and half
dollar coins that the Defendant admitted belonged to the victim.

        Investigator Billy Butler with the Manchester Police Department testified that he
accompanied Investigator Stewart and Chief Yother to Cannon County and assisted in
taking the Defendant into custody. Investigator Butler stated that the Defendant did not
appear to be under the influence of drugs or alcohol at that time. He recalled that the
Defendant complied with Investigator Stewart‟s commands and that the Defendant
seemed to understand his Miranda rights as read by Chief Yother. Investigator Butler
testified that he did not participate in the conversation between the Defendant and Chief
Yother during the ride to the police department. However, Investigator Butler stated that
he did not see Chief Yother assert physical force against the Defendant or hear any
threats or promises to the Defendant.

       Investigator Butler testified that, once at the police department, he, Chief Yother,
and Special Agent Kendall Barham of the Tennessee Bureau of Investigation (TBI) met
with the Defendant in the chief‟s office. They removed the Defendant‟s handcuffs and
gave the Defendant a bottle of water. The Defendant did not appear ill nor did he seem to
be under the influence of drugs or alcohol. Investigator Butler described the Defendant
as “very cooperative” and “a little remorseful.” Chief Yother explained to the Defendant
that they wanted to go back over the Defendant‟s statement and reduce it to writing.
Investigator Butler provided the Defendant with a Miranda rights waiver form, and the
Defendant initialed each of the rights listed on the form, indicating that he understood
each of the rights as Investigator Butler explained them. After signing the waiver, the
Defendant repeated his statement, one sentence at a time, so that Investigator Butler
could reduce the statement to writing. The Defendant then reviewed the two-page written
statement and signed it. Investigator Butler testified that the Defendant did not appear ill,
confused, or intoxicated during this time. Moreover, he did not see any needle marks on
the Defendant‟s arms.

      At the conclusion of the hearing, the trial court stated that the evidence was “pretty
overwhelming” that the Defendant‟s statement was voluntary. The trial court found that
the agents of the State “fully complied with Miranda requirements” and that the
Defendant “made a knowing and voluntary waiver of his rights.” The court found that
the Defendant was “by all proof not impaired” at the time he gave his statement to police.
The Defendant followed the officers‟ directions, demonstrating coordination by walking
backwards in a wooded area towards Investigator Stewart‟s voice. The Defendant also
                                            -4-
gave a detailed, “cogent narrative” of the events surrounding the murder. The
Defendant‟s emotions of having remorse were appropriate for the situation, and the
Defendant stated that he understood his Miranda rights and knew why officers were
arresting him. Regarding Investigator Stewart‟s mentioning in a report that the
Defendant appeared “sick”, the trial court accredited Investigator Stewart‟s explanation
that he had not seen the Defendant in years and that the Defendant had lost weight, giving
the appearance that the Defendant had an illness. The trial court concluded that there was
no evidence that the Defendant‟s statement was involuntary or that the Defendant did not
know what he was doing when he made the statement and, accordingly, denied the
Defendant‟s motion to suppress.

                                              Trial

       At the Defendant‟s subsequent trial, Investigator Stewart, Chief Yother, and
Investigator Butler testified consistent with their testimony at the hearing on the motion
to suppress. Investigator Stewart additionally testified that he secured a video from Elk
River Public Utility District during the investigation based upon information from the
Defendant that he had accompanied the victim there on the day of the offense. The video
showed the victim at the utility company at 3:34 p.m. on August 16, 2011, wearing the
same clothes that she had on when Investigator Stewart discovered the victim‟s body.

       Edward “Kent” Stewart testified that the Defendant was his first cousin, and the
victim was his mother. Kent1 explained that, before her death, he and the victim were
“very close” and they spoke on the phone nearly every day. He usually called the victim
on his way to work between 3:00 and 4:00 p.m. Kent testified that the last time he spoke
to the victim was on August 16, 2011. He called the victim around 4:00 p.m., and they
talked for about eight minutes. During their last phone call, the victim “seemed fine.”
Kent testified that, several days before the murder, he learned that the Defendant was
staying with the victim. He asked the victim about the Defendant, and she said that the
Defendant was outside smoking.

       Later that night, while he was at work, Kent received a phone call from his brother
Timothy Stewart, who was upset because he could not reach the victim by phone. Kent
explained that, on a previous occasion a month before, Timothy had been unable to get in
touch with the victim when she had gone out to eat with friends and forgotten her cell
phone. Kent told his brother, “Don‟t get excited because you know what happened last
time. She‟s probably just out with somebody[.]” Kent suggested that Timothy should
ask the victim‟s friend, Mary Piscola, to check on the victim.

       1
        Because several witnesses share a surname, we will refer to those witnesses by their given
name. We intend no disrespect.
                                              -5-
       After he was notified that Ms. Piscola and police officers had discovered the
victim‟s body, Kent left work and went to the victim‟s residence. He stated that, when he
arrived, the scene was taped off and he was not allowed into the home. Investigator
Stewart brought out the victim‟s purse, and Kent and Timothy looked through it. They
found the victim‟s cell phone, checkbook, and a wallet containing her credit cards.
However, there was no cash in the victim‟s purse, and Kent testified that was unusual as
the victim always kept twenty to thirty dollars in cash in her wallet.

        Kent testified that, in August 2011, his mother owned a 1989 Mercury Grand
Marquis, and the parties stipulated that the victim‟s car was worth at least $500 on
August 16, 2011. Kent explained that the victim was “very particular” about whom she
let drive her car, and she only let her sons drive it. Kent was then asked to identify a box
of jewelry and seven or eight pocket knives that belonged to the victim. Kent stated that,
although the victim had moved about three weeks before her murder, she would not have
left these items in the trunk of her car after the move. Kent identified a baggie containing
rings that was found in the center console area of the victim‟s car as belonging to the
victim. He testified that the value of the jewelry stolen from the victim was more than
$500. He was shown a silver box containing a syringe and paraphernalia, and Kent
testified that he did not recognize those items as belonging to his mother. Kent stated
that the victim did not store personal belongings in her car. He explained that, during a
move, the victim would typically place valuable items in the backseat of her car and put
her clothes in the trunk.

        Kent testified that when he was allowed back inside the victim‟s residence after
her death, he noticed that there were still several boxes scattered about the residence and
that the middle bedroom and hallway contained boxes that were not yet unpacked. Kent
testified that the victim stayed in a back bedroom and that this bedroom contained a
vanity where the victim kept a lot of her jewelry. Kent noticed that there were empty
drawers in the vanity where the victim kept a lot of her jewelry. He agreed, however, that
there were still a number of valuables in the victim‟s home. Kent recalled that, as he
went through a dresser drawer in his mother‟s bedroom, he found cigarette ashes in the
drawer. Kent thought that the cigarette ashes were “real odd” because the victim did not
smoke and would not allow anyone else to smoke in her home.

       During Kent‟s testimony, the parties entered a stipulation based upon phone
records that the Defendant‟s wife called the victim‟s home on August 16, 2011, at 7:16
p.m. and that the call lasted eight minutes. The parties also stipulated that there were no
other incoming or outgoing calls to or from the victim‟s home after the call from the
Defendant‟s wife.

                                           -6-
       Timothy Stewart, the victim‟s son, testified that he had spoken to his mother on
the phone every day before her murder. Timothy explained that, on July 22, 2011, he had
not been able to reach the victim on the phone and “panicked.” He cancelled everything
he had planned that day and drove to Manchester to check on the victim. When he got to
her residence, Timothy found that the victim, who was in the process of moving, had left
her cell phone in her car. Timothy testified that the victim was not completely unpacked
when she died but that the victim would not have left valuable family heirlooms in the
trunk of her car after a move.

       Timothy recalled that, on the morning of Tuesday August 16, the victim called and
asked him if he would buy a bus ticket to Florida for the Defendant.2 The victim told
Timothy that she did not want the Defendant at her house any longer and that the only
way to get the Defendant out of her house was to buy him a bus ticket. Timothy
explained that the victim did not want to hurt the Defendant‟s feelings so she whispered
while on the phone talking about wanting the Defendant to go to Florida. Timothy
agreed to buy the ticket and told the victim to check with the Defendant to make sure that
the Defendant was ready to go. Timothy offered to come to Manchester and “get [the
Defendant] on a bus that day,” but the victim thought that would be “rushing it too soon.”
Timothy testified that the victim was supposed to call him back that afternoon but failed
to do so. Timothy called the victim several times the following day, August 17, but could
not reach her. He then called one of the victim‟s friends, Mary Piscola, and asked that
she check on the victim. Ms. Piscola called Timothy back and reported that the lights
were off in the victim‟s apartment, but the television was on. She explained that all of
the doors were locked from the inside. Timothy asked Ms. Piscola to call 911. Ms.
Piscola later called back, “hysterical.” A police officer then got on the phone and
informed Timothy that the victim was deceased.

        Timothy testified that, after receiving this news, he and Kent went to the victim‟s
residence in Manchester. At the residence, they discovered that the victim‟s 1989
Mercury Grand Marquis was gone. Timothy estimated that the car was worth between
$3,000 and $5,000. Officers gave Timothy and Kent the victim‟s purse, and they noticed
that it contained no cash. Timothy testified that this was unusual because the victim
usually kept between twenty and thirty dollars in cash in her wallet. He then identified a
baggie of rings, as well as several necklaces, knives, watches, and stick pins, as
belonging to the victim. Timothy was next shown a bag of coins that had been found
under the driver‟s seat in the victim‟s car, and he identified the coins as coming from the
victim‟s coin collection. He explained that, before her death, the victim kept her coin
collection in a drawer and placed clothing on top of it. Timothy estimated that the coins
and jewelry found in the victim‟s car were worth several thousand dollars. Timothy

      2
          Timothy explained that the Defendant‟s wife lived in Florida.
                                                  -7-
recalled that he later went into the victim‟s residence and went through her possessions.
He discovered some jewelry—mostly costume pieces—inside the apartment. However,
the victim‟s “nicer jewelry” was never found.

       According to Timothy, at the time of the victim‟s murder, the Defendant did not
own a vehicle. Timothy recalled that, in February 2011, the Defendant had asked the
victim if he could borrow her car to pick up his wife from the airport. The victim told
Timothy that she did not want the Defendant driving her car. Thereafter, Timothy
informed the Defendant‟s wife that the victim was not going to drive to Chattanooga to
pick her up and the Defendant was not going to borrow the victim‟s car.

        Mary Piscola, a friend of the victim, testified that she received a call from Timothy
around 7:00 or 7:30 p.m. on August 17, 2011. Timothy asked Ms. Piscola if she had
spoken to the victim that day. Ms. Piscola explained to Timothy that she had last spoken
to the victim during the day on August 16 and, during that conversation, the victim had
told Ms. Piscola that the Defendant was helping the victim hang pictures. Timothy stated
that he had been trying to reach the victim all day and was worried. After speaking with
Timothy, Ms. Piscola tried to call the victim but did not get an answer. Ms. Piscola then
went to the victim‟s residence, which was about five minutes away. She knocked on the
front door several times, but the victim did not answer the door. Ms. Piscola looked in a
window and saw that the lights inside the residence were out but that a television was
turned on. Ms. Piscola testified that this was unusual because the victim usually had
lights on inside the house due to her age. Ms. Piscola called Timothy back and said that
there was “[s]omething . . . very, very wrong here” because the victim did not normally
leave her home at night. Timothy asked Ms. Piscola to call 911, and police officers
arrived on the scene about ten minutes later. The owner of the apartment complex gave
the officers a key to the victim‟s residence, and Ms. Piscola entered the apartment with
the officers. When one officer opened the door to the garage, Ms. Piscola saw that the
victim‟s car was missing. Another officer then went to a bedroom in the hallway where
the door to the bedroom was locked. When the officer forced open the door, he said that
they needed to leave the house because “this is a homicide.”

       Officer Justin Smith with the Manchester Police Department testified that he was
on duty on August 17, 2011, when he responded to a call for a welfare check on the
victim at Ingram Place Apartments. When he arrived, Officer Smith spoke with Ms.
Piscola who stated that she was good friends with the victim and that she had not heard
from the victim that day, which was unusual because they spoke daily. Officer Smith
went to the front and back doors and found that they were secured. When the owner of
the apartment complex arrived with a key, Officer Smith and three other officers entered
the victim‟s residence. Officer Smith saw no signs of a struggle in the living room,
kitchen, garage, or hallway. He discovered, however, that the door to the last bedroom
                                            -8-
on the right-hand side of the hallway was locked. Officer Smith used a wire coat hanger
to pick the lock. When he turned on the bedroom light, Officer Smith discovered the
victim‟s body lying in the floor. Officer Smith testified that the victim was on her back
and that it was obvious that she was deceased. Officer Smith recalled that the victim had
blood around her face and on her hands. After finding the victim, Officer Smith secured
the scene and called his supervisor.

       Special Agent Kendall Barham testified that Investigator Stewart requested that he
respond to the victim‟s residence after the discovery of the victim‟s body. When he
arrived, Agent Barham assisted in documenting the crime scene. In the bedroom in
which the victim was found, Agent Barham saw “signs of a struggle[.]” He documented
that one of the drawers to a nightstand in the bedroom had been left open and that there
were reddish-brown stains on the carpeting. Agent Barham recalled that the victim had
pantyhose around her neck, a laceration to the head, and a bruise on her right eye, among
other injuries. Regarding the laceration to the victim‟s head, Agent Barham explained
that he looked through the residence for a weapon that might have been used to cause the
laceration but was unable to locate such an item.

        Agent Barham testified that he also attended the Defendant‟s interview at the
police department. The Defendant told officers that he had been physically sick on the
day of the murder because he had not had morphine in two or three days. According to
the Defendant, the victim confronted him about being a drug addict, “scolding” him and
saying that he “needed to clean up[.]” The Defendant stated that he reached into one of
the drawers of the chest of drawers in the bedroom and took out a pair of pantyhose. He
then strangled the victim with the pantyhose. Further, the Defendant stated that, after
killing the victim, he went into the bathroom until it was dark and then took some of the
victim‟s jewelry and her car.

       Agent Barham took the victim‟s vehicle to the TBI crime lab and requested that
the car be processed. He and Investigator Stewart later photographed and inventoried
bags of evidence the TBI obtained from inside the victim‟s car. On cross-examination,
Agent Barham stated that he found other pantyhose in the chest of drawers near the
victim‟s feet. He further stated that there were two hammers in the trunk of the victim‟s
car which field tested negative for the presence of blood.

        Investigator Billy Cook, the director of the Drug Task Force in Coffee County and
a criminal investigator with the district attorney‟s office, testified that he retrieved the
evidence from the TBI lab in Cookeville and the medical examiner‟s office. He also
obtained DNA evidence from the Defendant. Investigator Cook was then asked a series
of questions about drugs, slang used to describe drugs, and drug paraphernalia. He also
identified a drug kit used to ingest drugs.
                                           -9-
       Dr. Laura Boos, a forensic scientist assigned to the serology/DNA unit at the TBI
crime lab, testified as an expert in DNA analysis. Dr. Boos stated that she was asked to
examine the victim‟s vehicle, document its contents, and test both for the presence of
blood. Regarding the contents of the vehicle, Dr. Boos testified that she found jewelry in
a small bag in the center console area of the car. She also found a box in the trunk that
contained some jewelry. Underneath the driver‟s seat, Dr. Boos found a plastic bag
containing a variety of coins. Beneath the front passenger seat, she discovered a silver
case containing what appeared to be drug paraphernalia such as needles and spoons. She
explained that her examination revealed that the interior of the vehicle tested negative for
the presence of blood. Two items found inside the vehicle, however, tested positive for
the presence of blood—a shirt from the backseat and a pair of pajama pants from a box in
the trunk. Dr. Boos tested these items and found that they did, in fact, contain human
blood. After DNA testing, the blood stain on the shirt was matched to the DNA standard
of the victim. The blood stain on the pajama pants matched the Defendant‟s DNA.

        Regina Keele testified that she was the store manager for Oak Market on
Woodbury Highway. Ms. Keele was contacted by Investigator Stewart, who asked her to
review footage from the market‟s surveillance cameras for August 16, 2011, for someone
matching the Defendant‟s description. Ms. Keele testified that the cameras captured the
Defendant entering the market at 9:13 p.m. The Defendant purchased some cigarettes
and some prepaid minutes for a phone. Ms. Keele stated that it appeared from the video
that the Defendant paid with some paper money and a handful of change.

        Special Agent Howard Patterson, with the technical services unit of the TBI,
testified as an expert in cell phone analysis. Agent Patterson stated that he analyzed the
Defendant‟s cell phone, which investigators found in the victim‟s car, and reviewed text
messages that were placed and reviewed by the Defendant‟s phone from August 15-18,
2011. One text message identified by Agent Patterson was sent to “Maggie” from the
Defendant‟s phone on August 16, 2011 at 9:06 a.m. The message read, “Supposed to
pick up eight of the 60 mg. morphs today, so going to get high as hell if I get them.” A
second text message was sent to “Maggie” from the Defendant‟s phone at 10:17 a.m.
which read, “Hey, I‟m ready to do some real crazy sh**, so I know how you feel. I have
burnt every bridge behind me and can‟t change it now.” At 10:21 a.m., a third text
message was sent to “Maggie” from the Defendant‟s phone that stated, “Only thing I can
say and be honest about it”; the message was followed by another text to “Maggie” at
10:25 a.m. that read, “Well, you‟re the only one I can and will be honest with, but don‟t
want to worry you. Just because I think stuff doesn‟t mean I will do it.” Later that same
day, at 3:03 p.m., a text message was sent to “Maggie” from the Defendant‟s cell phone
that said, “Hey, babe, how you doing? I am bummed out because money for morphs
didn‟t come through for me.”
                                           - 10 -
      At 3:35 p.m., a text was sent from the Defendant‟s phone to “Shann” that read, “I
am at home now.” Agent Patterson then read through an exchange of text messages
between “Shann” and the Defendant‟s phone that occurred between 3:36 p.m. and 4:00
p.m. The messages read:

      Defendant:    I am at my aunt‟s. Can you do anything if I can get out
                    there[?]

      Shann:        Yes, I am here now. Come on.

      Defendant:    I will try.

      Shann:        I need to know if you‟re on your way soon. I got to do this
                    soon or it will be too late. I just want one point though.”

      Defendant:    Yes, I am coming. Can I pull up to trailer or do it at mailbox.

      Defendant:    Can‟t leave yet but will be soon.

Agent Patterson then read a text received by the Defendant‟s phone that stated the
balance on his cell phone had reached zero. Then, at 9:17 p.m., the Defendant received a
message, stating that $15.00 had been posted to his cell phone account and that the
balance was $15.00.

       Dr. Adele Lewis, an expert in forensic pathology, testified that she performed the
victim‟s autopsy on August 18, 2011. The autopsy revealed that the victim had suffered
blunt force trauma to her head, torso, and hands. Dr. Lewis described the wounds to the
victim‟s hands as defensive injuries. She stated that the victim had lacerations to her
head that were consistent with the victim “being struck with an object” from behind. The
blunt force injuries to the victim‟s head resulted in injuries to her brain and bleeding on
the brain. Dr. Lewis opined, however, that the wounds to the victim‟s head “would most
likely not have been immediately fatal.” Dr. Lewis testified that the victim also had
another laceration that was roughly circular in shape on the right side of the head and a
cut behind her right ear. Dr. Lewis agreed that this laceration was consistent with being
caused by a hammer. She identified “at least” six different blows to the victim‟s head
that were not consistent with the victim falling down. She stated that the pantyhose had
been tightly wrapped around the victim‟s neck, causing fractures in the bones of the voice
box and pinpoint hemorrhages in the victim‟s eyelids. Moreover, the victim was still
alive at the time she was strangled. Dr. Lewis concluded that the cause of death was
“blunt force injuries to the head and strangulation.”
                                          - 11 -
        At the close of the State‟s case-in-chief, the Defendant called Shannon Young
Maason. Ms. Maason testified that she was “shooting morphine” in August 2011 and that
she knew the Defendant through their mutual drug use. She stated that the Defendant
provided her with syringes, and she gave the Defendant pills. Ms. Maason testified that
no money was ever exchanged between the Defendant and herself for the pills. Ms.
Maason acknowledged that, on August 16, 2011, she exchanged several text messages
with the Defendant regarding “getting morphine and doing the exchange.” Ms. Maason
testified that the Defendant came to her house in Cannon County sometime later, and she
gave him drugs. Ms. Maason could not recall what time the exchange took place but
stated that the Defendant appeared to be “on foot.” She denied that money was
exchanged and said that she never traded with the Defendant for drugs after that date. On
cross-examination, Ms. Maason stated that she was “Shann,” who was referred to in the
text messages read by Agent Patterson.

       Ricky Duke testified that, in the summer of 2011, the Defendant had stayed with
him for about ten days. During that time, the Defendant did some mechanical work on
Mr. Duke‟s farm. Although Mr. Duke did not know the victim, he identified her car and
stated that he had seen the Defendant driving the victim‟s car on two occasions that
summer. The first time the Defendant drove to Mr. Duke‟s residence in the car, there
was a woman in the car with the Defendant. The following day, the Defendant arrived at
Mr. Duke‟s residence in the victim‟s car by himself. Mr. Duke recalled that the
Defendant got to his house around 6:00 or 6:30 a.m. and they worked on a four-wheeler
that day. At one point, Mr. Duke and the Defendant went to McMinnville in Mr. Duke‟s
car to get a part for a car. When they returned, the Defendant said he would see Mr.
Duke the following day and left. The next morning, Mr. Duke learned through a news
report that police were looking for the Defendant.

       Based upon this proof, the jury found the Defendant guilty as charged in the
indictment. After a sentencing hearing, the jury sentenced the Defendant to life without
parole for first-degree felony murder and first-degree premeditated murder,3 finding
beyond a reasonable doubt the aggravating factors that the murder was especially
heinous, atrocious, or cruel and that the victim of the murder was seventy years of age or
older. See Tenn. Code Ann. § 39-13-204(i)(5), (14). The trial court sentenced the
Defendant, as a Range III career offender, to twelve years for theft over $1,000 and, as a
Range I standard offender, to twenty-five years for especially aggravated robbery. The
court ordered all sentences to run concurrently. The Defendant subsequently filed a


       3
          The trial court merged the guilty verdict for first-degree premeditated murder into the
conviction for first-degree felony murder.
                                             - 12 -
timely motion for new trial, which was denied by the trial court. This timely appeal
followed.

                                        II. Analysis

                              A. Sufficiency of the Evidence

        The applicable standard of review for a sufficiency of the evidence challenge is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original);
see also Tenn. R. App. P. 13(e). A guilty verdict “removes the presumption of innocence
and replaces it with a presumption of guilt, and the Appellant has the burden of
illustrating why the evidence is insufficient to support the jury‟s verdict.” State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Our standard of review “is the same whether the conviction is based upon direct or
circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)) (internal quotation marks omitted).

       In a jury trial, the weight and credibility given to the testimony of witnesses, as
well as the reconciliation of conflicts in that testimony, are questions of fact best
determined by the jury, since they saw and heard the witnesses, and by the trial judge,
who concurred in and approved the verdict. Bland, 958 S.W.2d at 659. This court will
not reweigh the evidence. Id. On review, the “State must be afforded the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

                  1. First Degree Felony Murder and Theft over $1,000

        The Defendant contends that the evidence presented at trial is insufficient to
support his conviction for first degree felony murder. The Defendant contends that the
killing and the predicate felony were not closely connected in time, place, causation, and
continuity of action. See State v. Pierce, 23 S.W.3d 289, 295 (Tenn. 2000). The
Defendant asserts that the victim‟s murder occurred first and then he spent a long time in
the bathroom crying such that there was “a break in the chain of events between the
killing of the victim and the leaving of the defendant and the taking of the car, jewelry,
and coins.”

      As charged in this case, felony murder is defined as “[a] killing of another
committed in the perpetration of or attempt to perpetrate any . . . theft[.]” Tenn. Code
Ann. § 39-13-202(a)(2) (2010). A theft of property occurs when someone, with the intent
                                           - 13 -
to deprive the owner of property, knowingly obtains or exercises control over the
property without the owner‟s effective consent. Tenn. Code Ann. § 39-14-103(a) (Supp.
2011).

        In this case, there is no dispute that both the theft and the killing occurred in the
same place, i.e., the victim‟s apartment. Moreover, the evidence showed that, after the
killing, the Defendant took the victim‟s jewelry and coin collection from inside the
apartment and cash out of the victim‟s wallet. He then fled the scene, taking the victim‟s
car, and the proof established that the value of the items taken by the Defendant was over
$1,000. The State offered into evidence the Defendant‟s text messages, which showed
that at 3:00 p.m. on the day of the murder, the Defendant complained to a friend that the
“money for morphs didn‟t come through for [him].” Then, over the next hour, the
Defendant sent Ms. Maason a series of text messages, in which the Defendant stated that
he was at the victim‟s apartment but that he wanted to go see Ms. Maason in Cannon
County to complete a drug deal. Additionally, Ms. Maason testified that, sometime later
that evening, the Defendant showed up at her house and she gave him some pills. Under
these circumstances, the jury could reasonably infer that the killing and theft were part of
a continuous course of action and not isolated events. The Defendant is not entitled to
relief.

                           2. First Degree Premeditated Murder

       Next, the Defendant contends that the evidence was insufficient to support his
conviction for first degree premeditated murder. He asserts that the victim‟s act of
slapping him while he was withdrawing from drugs and his immediate response of
strangling the victim “indicate there was a period of excitement and passion . . . not at all
indicative of the „exercise of reflection and judgment‟” and that the evidence established
only that he was guilty of second degree murder.

        Premeditated first degree murder is “[a] premeditated and intentional killing of
another[.]” Tenn. Code Ann. § 39-13-202(a)(1) (2010). 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.” Tenn. Code Ann. §
39-13-202(d) (2010). Additionally, “[t]he 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 as to be capable of
premeditation.” Id. Premeditation “may be established by proof of the circumstances
surrounding the killing.” State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Moreover,
there are several factors which tend to support the existence of premeditation, including
the use of a deadly weapon upon an unarmed victim, the fact that the killing was
                                           - 14 -
particularly cruel, declarations of an intent to kill by the defendant, evidence of
procurement of a weapon, the making of preparations before the killing for the purpose of
concealing the crime, and calmness immediately after the killing. Id. The element of
premeditation is a question of fact to be determined by the jury. State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997).

        The evidence at trial showed that the Defendant repeatedly battered the victim—
an unarmed, 81-year-old woman—in the head with an object and used pantyhose that he
obtained from a dresser drawer to strangle her to death. The subsequent autopsy revealed
that the victim‟s cause of death was both blunt force injuries to the head and
strangulation. Dr. Lewis testified that the Defendant hit the victim at least six different
times in the head and that he wrapped the pantyhose so tightly around the victim‟s neck
that bones in her throat were fractured. After the assault, the Defendant did not attempt
to call for aid for the victim. Rather, the Defendant collected cash, jewelry, and coins
from the victim‟s house and stole her car. He then obtained pills from Ms. Maason in
Cannon County and purchased cigarettes and additional minutes for his phone at a
market. Additionally, on the morning of the murder, the Defendant sent a text message to
“Maggie” which read, “Hey, I‟m ready to do some real crazy sh**, so I know how you
feel. I have burnt every bridge behind me and can‟t change it now.” Based upon this
evidence, we conclude that the jury could reasonably find that the Defendant‟s killing of
the victim was a premeditated and deliberate act and that the Defendant was sufficiently
free from excitement and passion when he decided to kill the victim.

                            3. Especially Aggravated Robbery

       The Defendant also contends that the evidence at trial was insufficient to sustain
his conviction for especially aggravated robbery. Specifically, he argues that he did not
“hurt or kill the victim to steal from her but as a result of their heated exchange regarding
his drug use” and that the theft occurred after the argument and subsequent killing.

       Especially aggravated robbery is defined as a robbery that is “(1) [a]ccomplished
with a deadly weapon; and (2) [w]here the victim suffers serious bodily injury.” Tenn.
Code Ann. § 39-13-403(a) (2010). “Robbery is the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Tenn.
Code Ann. § 39-13-401(a) (2010). A “deadly weapon” includes “[a]nything that in the
manner of its use or intended use is capable of causing death or serious bodily injury.”
Tenn. Code Ann. § 39-11-106(a)(5) (Supp. 2011). “Serious bodily injury” is a bodily
injury that involves a substantial risk of death, protracted unconsciousness, extreme
physical pain, protracted or obvious disfigurement, protracted loss or substantial
impairment of a function of a bodily member, organ or mental faculty, or a broken bone

                                           - 15 -
of a child who is eight years of age or under. Tenn. Code Ann. § 39-11-106(a)(34)
(Supp. 2011).

       Once again, we conclude that the evidence is sufficient to support the Defendant‟s
conviction. The Defendant used an object consistent with a hammer to cause severe
lacerations and trauma to the victim‟s head, and he used pantyhose to strangle the victim.
Both items, in the manner in which they were used, were capable of causing death or
serious bodily injury, and Dr. Lewis testified that the victim died as a result of blunt force
trauma to the head and strangulation. Furthermore, after killing the victim, the Defendant
collected cash, coins, and jewelry from her home and took the victim‟s car. Based upon
the jury‟s verdict, it is clear that the jury rejected the Defendant‟s version of events and
instead accepted the State‟s contention that the Defendant assaulted and killed the victim
for the purpose of stealing her personal possessions. This court will not reweigh the
evidence. Bland, 958 S.W.2d at 659. The Defendant is not entitled to relief.

                                  B. Motion for Mistrial

       The Defendant asserts that the trial court erred by denying his motion for mistrial
after Officer Smith testified that Ms. Piscola told him the Defendant “had recently been
released from prison.” The Defendant argues that Officer Smith‟s testimony was in
direct violation of the trial court‟s pretrial ruling that the State may not introduce
evidence of the Defendant‟s prior convictions. The State responds that the trial court
properly exercised its discretion when it chose to give a curative instruction and that the
Defendant has failed to demonstrate on appeal how a mistrial was a “manifest necessity”
under the circumstances. We agree with the State.

        The decision of whether to grant a mistrial is within the sound discretion of the
trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996).
Normally, a mistrial should be declared only in the event that a manifest necessity
requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
“In other words, a mistrial is an appropriate remedy when a trial cannot continue, or a
miscarriage of justice would result if it did.” State v. Land, 34 S.W.3d 516, 527 (Tenn.
Crim. App. 2000). The burden to show the necessity for a mistrial falls upon the party
seeking the mistrial. Id. This court will not disturb the trial court‟s decision unless there
is an abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). In
evaluating whether the trial court abused its discretion, we may consider: “(1) whether
the State elicited the testimony, (2) whether the trial court gave a curative instruction, and
(3) the relative strength or weakness of the State‟s proof.” State v. Welcome, 280 S.W.3d
215, 222 (Tenn. Crim. App. 2007).


                                            - 16 -
        Before trial, the Defendant filed a motion in limine, requesting that the State be
directed not to mention the Defendant‟s prior convictions or prior bad acts during voir
dire, opening statements, or through its questioning of witnesses. Following a hearing on
the motion, the trial court granted the motion after the State agreed that it would advise
its witnesses not to speak of the Defendant‟s criminal history or prior bad acts.

        However, in response to an open-ended question regarding what led him to the
victim‟s apartment, Officer Smith testified that, while he and Ms. Piscola were waiting
for the owner of the victim‟s apartment to arrive with a key to the residence, Ms. Piscola
told him that the Defendant had been staying at the residence and that the Defendant had
“recently been released from prison.” The Defendant objected, and the trial court
conducted a hearing outside the presence of the jury during which the Defendant argued
that Officer Smith‟s testimony was hearsay and in violation of the court‟s ruling on his
motion in limine. Additionally, the Defendant argued that Officer Smith‟s statement was
not true because the Defendant had been released from prison in 2002—nine years before
the victim‟s murder. The State requested that the trial court strike the officer‟s comment
and instruct the jury not to consider it. The defense then requested that the trial court
provide an additional instruction that the statement was not accurate, a request to which
the State did not object. The trial court stated that it would so instruct the jury but noted
that it was time for the jury to take a lunch break. The court recessed for lunch for about
an hour.

       Following the lunch recess, the Defendant requested a mistrial, arguing that the
statement was hearsay, in violation of the court‟s order on the motion in limine, and was
highly prejudicial to the Defendant. The State responded that a mistrial should only be
granted when there was no feasible alternative to halting the proceedings, that the
comment was inadvertent and not true, and that the trial court could tell the jury that the
parties stipulated it was not true. The trial court agreed with the State and denied the
Defendant‟s motion for mistrial. When the jury returned to the courtroom, the trial court
provided the following instruction:

             Right before we took our lunch recess, the defense had objected to a
       statement . . . made to [Officer Smith] by Ms. Piscola concerning the
       [D]efendant being recently in prison.

              I am going to instruct you that that statement is false, is a false
       statement. Both the State of Tennessee, the attorneys for the State and the
       attorneys for the defense stipulate that it is a false statement.

               So it is one of those—and I have ruled that it is inadmissible because
       it is not relevant in this case, so I want you to wipe your minds clean, erase
                                           - 17 -
       the slate as if you never heard that statement, and do not let it affect in any
       way your decision in this case. It is stipulated to be false and I have
       instructed it‟s hearsay, for one thing, but it is a false statement. Okay.

        Upon review, we conclude that the trial court did not abuse its discretion when it
denied the Defendant‟s motion for mistrial. Because Officer Smith‟s comment was not
responsive to the State‟s question, we cannot say that the State elicited the testimony.
Moreover, the trial court gave a curative instruction, telling the jury that Ms. Piscola‟s
comment that the Defendant had been in prison recently was false and that the parties
both agreed that the statement was false. The court instructed jurors not to consider the
statement or let it have any effect on their decision in the case, and the jury is presumed
to have followed those instructions. Finally, the proof of the Defendant‟s guilt was
strong, and the Defendant has pointed to nothing in the record indicating that a mistrial,
rather than the curative remedies fashioned by the trial court, was a “manifest necessity.”
This issue is without merit.

                            C. Motion to Suppress Statement

       Finally, the Defendant contends that the trial court erred in denying the motion to
suppress his statement to police. The Defendant argues that, because he had “shot up
morphine earlier that day,” the voluntariness of his statement was “in question” and
“should have been more thoroughly explored by the investigators at the time of the arrest
and the interview[.]” The State responds that the record supports the trial court‟s ruling
that the Defendant “was by all proof not impaired” at the time he spoke with the police
and the Defendant is not entitled to relief. We agree with the State.

       When reviewing a motion to suppress, this court is bound by the trial court‟s
findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and
resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. Id. We review the trial court‟s conclusions of
law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005). In evaluating the
correctness of a trial court‟s ruling on a pretrial motion to suppress, this court may
consider the proof adduced both at the suppression hearing and at trial. State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998).

       The Fifth Amendment to the United States Constitution provides in pertinent part
that “no person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. Similarly, Article I, Section 9 of the Tennessee
Constitution states that “in all criminal prosecutions, the accused shall not be compelled
                                           - 18 -
to give evidence against himself.” Tenn. Const. art. I, § 9. The test of voluntariness for
confessions under the Tennessee Constitution is broader and more protective of
individual rights than the test of voluntariness under the Fifth Amendment. State v.
Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

       The voluntariness of a confession is a question of fact. State v. Sanders, 452
S.W.3d 300, 306 (Tenn. 2014) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000); State v. Smith, 933 S.W.2d 450, 455
(Tenn. 1996); Self v. State, 65 Tenn. 244, 253 (1873)). The State has the burden of
proving the voluntariness of a confession by a preponderance of the evidence. Id. (citing
State v. Stamper, 863 S.W.2d 404, 405 (Tenn. 1993)).

        A court determining voluntariness must examine the totality of the circumstances
surrounding the giving of a confession, “both the characteristics of the accused and the
details of the interrogation.” State v. Climer, 400 S.W.3d 537, 568 (Tenn. 2013) (quoting
Dickerson v. United States, 530 U.S. 428, 434 (2000)). Circumstances relevant to this
determination include:

       [T]he age of the accused; his lack of education or his intelligence level; the
       extent of his previous experience with the police; the repeated and
       prolonged nature of the questioning; the length of the detention of the
       accused before he gave the statement in question; the lack of any advice to
       the accused of his constitutional rights; whether there was an unnecessary
       delay in bringing him before a magistrate before he gave the confession;
       whether the accused was injured[,] intoxicated[,] or drugged, or in ill health
       when he gave the statement; whether the accused was deprived of food,
       sleep [,] or medical attention; whether the accused was physically abused;
       and whether the suspect was threatened with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (quoting People v. Cipriano, 429
N.W.2d 781 (Mich. 1988)) (emphasis omitted).

       In evaluating whether a statement was given voluntarily, “the essential inquiry . . .
is whether a suspect‟s will was overborne so as to render the confession a product of
coercion.” Climer, 400 S.W.3d at 568 (citing Dickerson, 530 U.S. 428 at 433-35; Smith,
933 S.W.2d at 455). A suspect‟s subjective perception alone is insufficient to support a
conclusion of involuntariness of a confession. Smith, 933 S.W.2d at 455 (citing State v.
Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). Rather, “coercive police activity is a
necessary predicate to finding that a confession is not voluntary[.]” Brimmer, 876
S.W.2d at 79.

                                           - 19 -
        In denying the Defendant‟s motion to suppress, the trial court found that the
Defendant was “by all proof not impaired” at the time he gave his statement to police.
The testimony from the suppression hearing supports the trial court‟s conclusion.
Investigator Stewart, Chief Yother, and Investigator Butler all testified that the Defendant
was coherent and appeared sober at the time of his arrest and when the Defendant gave
his statement. The Defendant was able to walk backwards towards Investigator Stewart‟s
voice without stumbling and engage with the officers in appropriate conversation, and he
provided the officers directions back to the main road. After he was advised of his
Miranda rights, the Defendant stated that he understood his rights and knew why officers
were arresting him. The Defendant also gave a detailed, “cogent narrative” of the events
surrounding the murder, and he appropriately expressed remorse. These facts directly
contradict the Defendant‟s claim that he was too sick or too intoxicated to make a
voluntary statement to police. We conclude that the facts support the trial court‟s
conclusion that the Defendant‟s statement was voluntary. The Defendant is not entitled
to relief on this issue.


                                     III. Conclusion


       For the aforementioned reasons, the judgments of the trial court are affirmed.



                                                    _________________________________
                                                    ROBERT L. HOLLOWAY, JR., JUDGE




                                           - 20 -
