         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 21, 2008 Session

             STATE OF TENNESSEE v. JIMMY STUART MYNATT

                   Direct Appeal from the Criminal Court for Knox County
                          No. 84540    Mary Beth Leibowitz, Judge



                    No. E2007-00482-CCA-R3-CD - Filed February 5, 2009


The defendant, Jimmy Stuart Mynatt, appeals his convictions of first degree felony murder, second
degree murder, and especially aggravated robbery. He was sentenced to life plus twenty-five years.
On appeal, he contends that: the evidence was insufficient to support his convictions; the trial court
should have granted his motion to suppress statements made to the police; and the trial court erred
in instructing the jury. After careful review, we affirm the judgments from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
THOMAS T. WOODALL , JJ., joined.

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Jimmy Stuart Mynatt.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Leslie Nassios, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

         The defendant was convicted of the first degree felony murder of Fred Thomas, which
occurred during the commission of a robbery. The defendant does not dispute that he fired the shot
that killed the victim, but he does argue that the shooting was not a murder. On appeal, he contends
that he shot the victim in self-defense.

        Prior to trial, a hearing occurred on the defendant’s motion to suppress his statements to the
police. Patricia Tipton, a detective with the Knoxville Police Department, testified that she
investigated the murder of the victim. She said that she spoke with the victim’s daughter when she
arrived at the crime scene, the victim’s home. The detective testified that the daughter indicated that
the defendant may have wanted to kill the victim. She said that her investigation revealed that the
victim’s daughter had dated the defendant for several years and that the defendant had lived with the
victim at one time.

        The detective testified that the victim was killed in his home by the defendant. She said that
the defendant was arrested on the day after the shooting and that he waived his rights and agreed to
discuss the incident with her. According to the detective, the defendant discussed the events leading
up to the shooting in a calm manner. She testified that the defendant may have used drugs within
the twenty-four-hour period prior to her interview, but she did not think that he was under the
influence or affected by his drug use during their conversation. She said she would have stopped
the interview if she thought he was under the influence. The interview was videotaped and audio
taped and, at one point, the defendant asked that the audio tape be stopped so he could discuss a
plea. The detective turned off the audio recording but not the video recording.

         The defendant admitted that he and two associates discussed going to the victim’s house to
rob him and acknowledged that they knew they might have to shoot the victim because of their
knowledge that he kept guns in his home. The defendant did not admit that he went to the victim’s
home on the day of the shooting. He admitted that he was involved in planning the robbery but said
that his co-defendants actually carried out the robbery. He further told the detective that he and his
co-defendants opened the victim’s safe and divided the contents. The defendant also admitted that
he and a co-defendant had been to the victim’s home earlier in the week where he stole the victim’s
daughter’s purse containing crack and powder cocaine. He contended that the robbery scheme was
planned after they used the drugs they had stolen from the victim’s daughter. The defendant also
acknowledged that he and his co-defendants burned the victim’s truck.

        The defendant testified that he had used crack and powder cocaine for five or six days before
he was interviewed by the detective. He said that, when he was using cocaine, he thought only about
getting high and that he used Valium and Hydrocodone pills in addition to the cocaine. He said he
took the pills to block the memory of the incident. He did not recall signing the waiver form but
acknowledged that it was his signature on the form. The defendant said he had only slept for a few
hours before his interview with the detective. He admitted that he recalled the details surrounding
the incident, including burning the victim’s truck.

       The court viewed the videotape of the interview with the defendant and determined that the
defendant’s statements were voluntary. Following the hearing, the trial court denied the motion to
suppress the statements by written order.

        During trial, the victim’s neighbor testified that she was outside with her dogs on the
morning of March 2, 2006. She said that she heard a sound like someone was beating on the
victim’s house. Next, she saw the victim come outside and say, “Come here, boy. Come here, boy.
Don’t make me put this bullet in you.” She said that she saw a young man on the victim’s front
porch and that the young man also saw her. He stepped down from the porch when he saw the
neighbor and said, “I was looking for Jenna or Jennie.” She went inside her house after hearing
about the gun.



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         Annie Marie Werner testified that she was a friend of the victim’s granddaughter. She said
that she knew the victim because she had lived with him. She testified that the victim was a former
Marine with numerous health problems, including stomach hernias and an artificial leg. She said
that the victim stored his medication and money in a safe in his bedroom. She testified that she knew
the defendant because he had dated the victim’s daughter. She said that she was at the victim’s
house on the day the defendant stole the purse belonging to the victim’s daughter.

        Ms. Werner testified that she went to the victim’s house to check on him. She said that,
when she arrived, the victim’s cousin was sitting outside the victim’s house waiting on him. The
cousin said he thought the victim was running errands and he was waiting for him to get home. They
decided to go into the victim’s house. When she tried to use her key to gain entry, she discovered
the door was unlocked. They called for the victim but got no answer. They discovered him lying
on his bedroom floor with blood all around him. She said that the victim did not have a gun and that
his body was cold to the touch.

        Ivan Lynn Baird, a co-defendant, testified that he and the defendant used drugs, including
crack cocaine and pills. He said that he was “doing a lot of drugs” with the defendant and other
people during the week of February 27 through March 2, 2006. He said that he drove the defendant
to the victim’s home to get more drugs. He said that he stayed in the car while the defendant went
to get the drugs. He testified that when the defendant approached the house, he heard a man say
something to the effect of “don’t let me fill you full of holes.” He saw the defendant and victim
exchange words but did not know what they said. He said he fled when he heard what he thought
were two gunshots a few moments later.

         Soon after Baird returned to his house, the defendant arrived in a white Toyota truck. The
defendant had a safe with him which contained pill bottles, money, and a knife. They set aside one
pill bottle to sell for cash. They then divided the money among the four people present. The co-
defendant testified that the defendant said something to the effect of “I shot him” or “I had to shoot
him.” He said that the defendant and Tom Whittenberg decided to dispose of the Toyota truck. He
said they took the truck to a side road, and Whittenberg and the defendant set fire to the truck. They
left the truck to burn and went to a motel for the night. Baird said that the defendant traded drugs
and, possibly, guns from the victim’s house for a car and cash. They later used the cash to purchase
crack which they smoked in the motel.

        The doctor who performed the victim’s autopsy testified that the victim suffered a single
gunshot wound to his head, severe skull fractures, lacerations, and contusions of his brain. She said
that the victim also demonstrated signs of several natural diseases. She testified the victim’s blood
alcohol level was .01, and his blood tested positive for a significant level of Oxycodone. She opined
that the gun shot was fired at close range – between twelve and twenty-four inches. The location of
the bullet in the victim’s head indicated that the victim was possibly seated or trying to duck the
bullet when he was shot. She did not discover any defensive wounds on the victim. She concluded
that the gun shot wound to the head caused the victim’s death.

       Detective Tipton testified at trial that she investigated the victim’s death. She said that the
victim was lying on his bedroom floor and was surrounded by blood. She observed an indentation

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on a foot chest in the victim’s bedroom that looked like something heavy had been sitting on it.
They discovered two spent shell casings, one on top of a pair of pants on the floor and one in the
hallway. She also found a live cartridge under the victim’s bed and an empty holster. They made
a video tape recording of the crime scene.

        The detective said that the defendant became a suspect following crime scene interviews with
the victim’s family. She learned that the defendant had been to the victim’s home earlier in the week
to visit the victim’s daughter and that the defendant had previously resided with the victim.
Following the defendant’s arrest, they discovered a black canister containing Ambien pills on his
person. She learned that the victim had a prescription for Ambien and that he kept them stored in
such a container in his bedroom.

        The detective testified that the defendant was read his rights and that he executed a waiver
of rights form prior to their interview. She believed that the defendant was alert and responsive
during their interview. She testified that their entire interview was video recorded and a portion of
it was also audio recorded. The detective discovered that the defendant was very familiar with the
victim’s home, his property, and the medications he kept at home because of the time he had lived
with him. She also found that the defendant knew the victim’s routines very well, including that he
often took long weekends to hunt. He told the detective that he had been to the victim’s home earlier
in the week to see the victim’s daughter and that he had stolen her purse because it was full of drugs.
Approximately halfway through the interview, the detective informed the defendant that the victim
was dead. He said that the defendant did not react to the statement. The defendant asked that the
audio recording be turned off so he could discuss a deal. The detective only turned off the audio
recording and told the defendant that she could not make him promises regarding a plea deal.

        The defendant told the detective that his co-defendants went to the victim’s home to get the
drugs. He said that Whittenberg went into the house while Baird stayed outside. He told the
detective that Baird became frightened and left so Whittenberg took the victim’s truck and returned
with the safe. He admitted that he purchased acetone and used it to burn the victim’s vehicle. The
defendant did not admit that he was at the victim’s home during the robbery and shooting.

        Following the detective’s interview with the defendant, his mother contacted the detective.
She met with his mother and obtained a pair of his pants, which were later submitted for forensic
testing. The parties stipulated that the pants were stained with the same blood type as the victim’s.

        Jana Shipley testified that she met the defendant about a week prior to the shooting. She said
that she met Whittenberg, Baird, and the defendant at a crack house. She testified that he had a drug
problem and frequently used crack cocaine. Shipley testified that the defendant and Baird left
together on the day of the shooting and returned to the house separately. She had not seen the
defendant with a gun before he left, but he had several guns and a safe when he returned. She went
along with them when they left the truck in a remote area. She said that the defendant later told her
that they had to “shoot the man.” She also heard Whittenberg say that “the first person you kill is
always the hardest.”



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        The defendant testified that he met the victim through his ex-girlfriend, the victim’s daughter.
The defendant testified that he lived with the victim at one time. He said that he knew the victim
kept guns in his home, specifically a .9 millimeter handgun. He testified that the victim and his
family sold drugs for income. He said that he stole a purse belonging to the victim’s daughter after
she refused to lend him cocaine. He said that he took approximately an ounce of powder cocaine,
approximately one-half ounce of crack cocaine, and between $600 and $700 in cash.

        He testified that he was addicted to crack cocaine and acknowledged that he was a “crack
head.” He said that Whittenberg was a friend with a drug problem. The defendant said he was
introduced to Baird and Shipley during the week of the shooting. He said he learned the victim was
going hunting the week that he stole the purse. He intended to steal drugs from the victim’s empty
house when their drug supply began to run low. The defendant said that Baird did not know where
they were going and drove where he was instructed. He said that he did not have a weapon when
he arrived at the victim’s home. He testified that he would not have gone to the victim’s home if he
believed the victim was there.

        The defendant said he planned to steal the victim’s safe. He said that he pounded on the
victim’s back door and did not get an answer. He then knocked on the front door and, again, got no
answer. He then saw the victim come around the house with a gun drawn. The victim instructed
him to “come here or he would shoot me.” The defendant complied and went into the house as
instructed. He said that they went into the bedroom where the defendant yelled and cursed at him
for stealing the purse. The defendant testified that he was afraid because the victim was waving the
gun in his face. He recalled that he grabbed the gun from the victim, but the victim grabbed another
gun. He said that he told the victim to stop, then fired one shot which missed the victim. He said
his second shot hit the victim and caused him to crumple onto the bed.

        The defendant testified that he ran from the house, but Baird was gone. The defendant again
went into the house and took four guns, the safe, and the keys to the victim’s truck. He left in the
victim’s truck and returned to Baird’s house. He said that he eventually told his friends that “it was
either him or me, and he was going to shoot me.” They divided the contents of the safe and left to
destroy the truck.

         He testified that he had been awake for five or six days straight when he gave his statement
to the detective. He did not recall giving the statement but had seen the video recording. He
admitted that he lied about Whittenberg’s role in the robbery and shooting and said that only part
of his statement to the detective was the truth. He acknowledged that he would lie to get himself out
of trouble.

       The defendant was convicted of felony murder, second degree murder, and especially
aggravated robbery and was sentenced to life plus twenty-five years. His convictions for felony
murder and second degree murder were merged.

                                               Analysis



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       The defendant raises three issues on appeal. He contends that: the evidence was insufficient
to support his convictions; the trial court improperly instructed the jury; and the trial court erred in
denying his motion to suppress his statements.

        First, we consider whether the evidence was sufficient to support the defendant’s convictions.
When an accused challenges the sufficiency of the evidence, this court must review the record to
determine if the evidence adduced during the trial was sufficient “to support the finding by the trier
of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to
findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct
and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
State the strongest legitimate view of the evidence contained in the record, as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated that “[a] guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        The defendant contends that there was insufficient evidence at trial to support his
convictions. Here, the defendant’s especially aggravated robbery conviction was the underlying
felony to his felony murder conviction. Felony murder is defined in Tennessee Code Annotated
section 39-13-202(a)(2) as “[a] killing of another committed in the perpetration of or attempt to
perpetrate any . . . robbery, burglary, theft. . . .” There is no culpable mental state required except
the intent to commit the enumerated offense. See Tenn. Code Ann. § 39-13-202(b).

       Especially aggravated robbery is defined as a robbery accomplished with a deadly weapon
where the victim suffers serious bodily injury. Especially aggravated robbery is a Class A felony.
Tenn. Code Ann. § 39-13-403.

         The defendant argues that the evidence was insufficient to support his conviction for first
degree felony murder. Specifically, he contends that he should not have been convicted of felony
murder because he did not intend to commit the underlying felony of especially aggravated robbery
at the time he shot and killed the victim. He contends that he went to the victim’s home because he

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believed the victim was not at home. However, the defendant’s intention for going to the victim’s
home was to steal drugs from the victim’s safe. This admission demonstrates that the defendant had
the intent to commit the felony of robbery at the time he shot and killed the victim.

        The defendant also argues that his convictions were based largely on the testimony of his co-
defendant and that the co-defendant’s statements should not have been given much weight because
he received a favorable plea agreement for his cooperation. Further, he argues that both his drug use
and his co-defendant’s drug use should be considered in weighing their statements to police.
Basically, the defendant argues that the court should have given little weight to his statement to
police following his arrest or to the testimony of his co-defendant. However, it is well-settled that
questions about the credibility of witnesses, the weight and value of the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact. State v. Evans, 108 S.W.3d 231, 236
(Tenn. 2003). The defendant has not met his burden of demonstrating that the evidence is
insufficient to support the verdict. The evidence presented at trial was sufficient to support the
underlying convictions.

         Next, the defendant argues that the trial court should have granted his motion to suppress
statements he made to police following his arrest. Specifically, he argues that his statement was
heavily influenced by his drug use and a lack of sleep so as to make it an involuntary act. “[A] trial
court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Questions surrounding the credibility of
witnesses and the “resolution of conflicts in the evidence are matters entrusted to the trial judge as
the trier of fact.” Id. at 23. With deference to the trial court’s findings of fact, an appellate court’s
review of a trial court’s application of law to the facts is conducted under a de novo standard of
review. State v. Damron, 151 S.W.3d 510, 515 (Tenn. 2004).

        Here, the defendant was in custody at the time he made his statements to the police. He was
read his rights and executed a waiver of his rights. The testimony adduced at trial reflects that the
police had reason to believe that the defendant had used drugs as recently as within twenty-four
hours of his interview. However, the detective testified that the defendant did not hesitate to discuss
the incident with her and that he was responsive and articulate during their discussion. She testified
that he would correct her if she made a misstatement or if she misunderstood him. She further stated
that she would have stopped the interview if she believed he had been under the influence while they
were talking.

        The trial court made written findings noting that the defendant’s demeanor did not indicate
that he was unable to voluntarily waive his rights or make a statement. The proof reveals that the
defendant understood his right to counsel as well as his right to remain silent and that he voluntarily
waived those rights. A trial judge’s factual determination on the voluntariness of a defendant’s
confession is conclusive on appeal if there is any material evidence to support it. State v. Johnson,
661 S.W.2d 854, 860 (Tenn. 1983). The defendant has not offered any evidence to support his
argument other than his own statements. Therefore, we affirm the judgments from the trial court.

       Next, the defendant argues that the trial court erred in instructing the jury. Specifically, he
argues that the trial court should have supplemented the jury instructions after receiving a jury

                                                  -7-
question during deliberation regarding self-defense. The standard of review for questions concerning
the propriety of jury instructions is de novo with no presumption of correctness. State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001).

       A trial judge is vested with the authority to give supplemental instructions when the jury
poses a question that indicates the jurors are confused regarding a question of law. State v.
Dulsworth, 781 S.W.2d 277, 288 (Tenn. Crim. App. 1989).

       A question from a deliberating jury often represents a pivotal moment in a criminal
       trial. Particularly in a close case [], a trial judge has a ‘duty of special care’ when
       responding to a request for ‘further light on a vital issue’ from the foreperson of a
       confused jury . . . ‘When a jury makes explicit its difficulties a trial judge should
       clear them away with concrete accuracy.’

U.S. v. Duncan, 850 F.2d 1104, 115 (6th Cir. 1988) (citations omitted).

        Self-defense requires a reasonable belief that “force is immediately necessary to protect
against the other’s use or attempted use of unlawful force” and that there was an “imminent danger
of death or serious bodily injury” to the defendant. Tenn. Code Ann. § 39-11-611(a). The State
bears the burden of proving that the defendant did not act in self-defense when the defendant relies
upon a theory of self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001). Whether an individual
acted in self-defense is a factual determination to be made by the jury as sole trier of fact. State v.
Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). If the jury rejects the claim of self-defense, “in
order to prevail, the [appellant] must show that the evidence relative to justification, such as self-
defense, raises, as a matter of law, a reasonable doubt as to his conduct being criminal.” State v.
Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994).

        The defendant argues that the State’s closing argument misled the jury as to the timing of
when the defendant raised the claim of self-defense. The State argues that the defendant did not
object to these statements when they were made during closing argument. The State argued in its
closing argument that the defendant waited to raise the defense of self-defense and pointed out that
the defendant never told police that he shot the victim in self-defense.

        During deliberations, the jury submitted a question asking when the defendant should have
been legally obligated to inform the court he would argue self-defense. The trial court responded
“Please refer to the self-defense instruction.” The first portion of the self-defense instruction stated
that the defendant included a plea of self-defense with his plea of not guilty. The State argues this
indicated that the defendant raised his claim of self-defense at the time he pled not guilty. The State
further argues that the jury simply needed to reread the instruction to discover the answer to their
question.

       The defendant relies on State v. Lucius Macineo Moss, No. 03C01-9501-CR-00002, 1996
Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. May 2, 1996, at Knoxville), to support his
argument. The State argues that there are two important differences between the facts of Moss and
the underlying case. First, the record in Moss was not clear as to the instructions given to the jury

                                                  -8-
regarding the self-defense claim, and, second, the jury in Moss submitted their question twice
requesting clarification. The State argues that the defendant is not entitled to a new trial because the
apparent jury confusion in Moss is not present here. We agree. In Moss, the jury asked the court
during deliberations for clarification as to when the right to claim self-defense went away due to the
defendant’s actions. Here, the jury was inquiring as to when the defendant needed to claim that he
acted in self-defense. The court answered by suggesting that they look at the instructions that
indicated the defendant had claimed self-defense since he entered his plea of not guilty. The
defendant has failed to show that the jury’s inquiry required a supplemental jury instruction and,
therefore, is not entitled to relief on this issue.

                                             Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgments from the trial
court.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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