        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 3, 2014 Session

                   STATE OF TENNESSEE v. TERRY NORRIS

              Direct Appeal from the Criminal Court for Shelby County
                     No. 97-08293   James C. Beasley, Jr., Judge




             No. W2000-00707-CCA-R3-CD - Filed November 18, 2014


In this procedurally complex case, a Shelby County jury convicted the Defendant, Terry
Norris, of second degree murder in 1999, and the trial court sentenced him to twenty-one
years of incarceration. After several proceedings and filings, discussed in detail below, the
U.S. Sixth Circuit granted the Defendant habeas corpus relief unless the State allowed the
Defendant to reopen his original direct appeal and raise an issue regarding whether his
confession should have been suppressed pursuant to County of Riverside v. McLaughlin, 500
U.S. 44 (1991). The State allowed the Defendant to reopen his appeal. On appeal, the
Defendant contends that the trial court erred when it denied his motion to suppress his
confession to police because he gave his confession after being held for more than forty-eight
hours without a probable cause hearing. After a thorough review of the record and the
applicable authorities, we conclude that we must address the issue before us for plain error.
After conducting our plain error review, we conclude that the Defendant is not entitled to
relief.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which R OGER A. P AGE and
R OBERT L. H OLLOWAY, J R., JJ., joined.

Amy Rao Mohan, Nashville, Tennessee, and Kellen S. Dwyer, Washington, D.C. (on
appeal); Michael Johnson and Garland Erguden, Memphis, Tennessee (at trial), for the
appellant, Terry Norris.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                       OPINION
                            I. Facts and Procedural History

                                         A. Trial

       In July 1997, a Shelby County grand jury indicted the Defendant for one count of
second degree murder. In our opinion denying the Defendant’s first appeal, we summarized
the facts presented as follows:

              On March 10, 1997, nineteen-year-old victim Keith Milem was found
      shot to death outside the home where he lived with his uncle. On the evening
      of March 11, 1997, the Defendant was taken into custody by police and
      questioned about the crime. On March 13, 1997, the Defendant confessed to
      shooting the victim. The Defendant informed police of the location of the
      murder weapon, a nine-millimeter semiautomatic pistol, and police recovered
      the gun and submitted it for testing. Results of tests performed on the gun
      indicated that the fatal shots had indeed been fired from the Defendant’s gun.

             At trial, Lakendra Lavonne Mull testified that she and the Defendant
      were roommates at the time of the crime, and she reported that at that time, the
      Defendant was dating her cousin, Lateeska Newberry. Mull explained that the
      victim was also her distant cousin, and she stated that Newberry and the victim
      had known one another since attending elementary school together. Mull
      characterized the victim and Newberry as her “best friends.”

              Mull testified that on March 10, 1997, the victim, Newberry, and a third
      friend named Tim visited her apartment during the afternoon. Mull stated that
      the Defendant was present at their apartment when the victim initially arrived,
      and she reported that the Defendant spoke to the victim briefly upon the
      victim’s arrival. Approximately two hours after the victim arrived at the
      apartment, the Defendant left and later returned with his brother. At the time
      the Defendant returned, the victim, Newberry, Tim and Mull were engaged in
      conversation, and the victim and Tim were drinking alcoholic beverages. Mull
      testified that the Defendant and his brother stayed only ten minutes upon their
      return to the apartment before departing a second time. Mull testified that the
      Defendant subsequently telephoned her to tell her that he had left his gun at the
      apartment, and he soon returned to pick up the gun. Mull explained that her
      young daughter lived with them, and the Defendant generally did not leave the



                                             -2-
gun in the apartment with Mull’s daughter. After picking up the gun, the
Defendant left for a final time.

        Mull recalled that approximately three hours after the Defendant picked
up his gun, she drove the victim home. Mull testified that the victim was “kind
of staggering because he had been drinking.” However, she maintained that
the victim “probably was more sleepy than full of alcohol” because he had not
drunk “all that much” while at her apartment. Mull recalled that when she left
her apartment at approximately 9:55 p.m., she saw the Defendant parked
across the street from their apartments in his “burgundy or maroon” 1993
Grand Am. She stated that when she pulled out of the apartment complex, she
saw the Defendant begin to follow her car without his lights on, and she
testified that the Defendant followed her car to the victim’s home, a drive
which Mull testified took three to four minutes. Mull reported that after she
dropped the victim off in front of his home and turned her car around, the
Defendant flashed his “high beams” at her car. Mull stated that she last saw
the victim standing at the door to his home as she drove away.

       Mull reported that the Defendant did not return home on the night of the
murder, but she stated that the Defendant called her once that night. She
recalled that at approximately 6:00 a.m. the following morning, the Defendant
returned to their apartment to pick up clothes.

        Mull testified that the Defendant normally carries a gun. Mull further
testified that approximately a week prior to the homicide, she saw the
Defendant put mercury covered with candle wax on the tips of bullets. When
she asked him what he was doing, the Defendant explained that the mercury
“makes the bullet explode when it enters something.”

        On cross-examination, Mull acknowledged that she told police she
believed the Defendant thought that his girlfriend, Lateeska Newberry, was in
her car on the night of the murder. She explained to police that she thought the
Defendant was jealous after seeing the victim and Newberry together at her
apartment earlier in the evening. She stated that she had known the Defendant
to be jealous “[o]ver [Newberry].” However, she stated that while the victim
was at her apartment on the day of the murder, the victim and Newberry were
not affectionate and were “sitting across the room from each other.”

       Charles Edward Milem, the victim’s uncle, testified that the victim was
living with him at the time of his death. Milem testified that he was in his

                                      -3-
bedroom when the victim was shot. Milem recalled that from his bedroom
window, he saw the victim get out of Mull’s car and walk to the front porch
of their home. As Mull’s car pulled away, Milem saw another car immediately
pull up on “the wrong side of the street.” Milem next heard the victim ring the
doorbell, and he then heard voices calling the victim. Milem testified, “One
voice said, hey. My nephew repeated, who [sic] there, who [sic] there. And
another voice immediately said, come here.” Following this, Milem heard
three gunshots, which he claimed came from the car that had pulled up after
the victim was dropped off. At this point, he could no longer see the victim
standing in the street. Milem rushed to the door, saw the victim lying in the
street, and saw a car pull away. Milem stated that the car from which the shots
were fired “looked white up under the street lights” and “sound[ed] like a
Cutlass.” When Milem approached the victim, he noticed that the victim’s
hands were still in his pockets.

        Byron Braxton of the Memphis Police Department testified that he was
called to the crime scene on March 10, 1997. He recalled that when he arrived
at the scene, paramedics were already there. Braxton testified that he saw the
victim lying face-down in the middle of the street, and when the paramedics
rolled him over, Braxton saw that the victim’s hands were still in his pockets.
He stated, “[T]he shooter wasn’t there to our knowledge. The consensus of the
witnesses were that they saw a white box-type Chevy headed toward [a nearby
street]. It was occupied by two to three male blacks. But they really couldn’t
give a description on the individual.” Officers recovered three nine-millimeter
shell casings from the scene. They also found a bullet lodged in the door of
a house near the home in which the victim lived.

       The State introduced the Defendant’s March 13, 1997 statement
through the testimony of Memphis Police Sergeant Dwight Woods. Woods
participated in taking the Defendant’s statement, which includ[ed] the
following:

       Q.     Terry, do you know Keith Milem?
       A.     Yes.

       Q.     Are you aware that Keith Milem was shot and killed on
              Monday, March 10, 1997 at approximately 10:00 PM in
              front of 610 Loraine Drive?
       A.     Yes.



                                      -4-
Q.   Did you shoot Keith Milem?
A.   Yes.

Q.   What did you shoot Keith Milem with?
A.   A Smith and Wesson 9mm Automatic.

Q.   How many times did you shoot Keith Milem?
A.   I don’t know.

Q.   Why did you shoot Keith Milem?
A.   Because he attacked me and hit me in the face and
     grabbed my arm.

Q.   Terry, tell me in your own words exactly what occurred
     before, during and after the shooting?
A.   Well from a couple of days before the shooting I heard
     my roommate Kim and my girlfriend Ranata talking
     about their cousin Keith or “Black” which is what they
     called him and I was suspicious about him the whole
     time and the day of the shooting he came to my home at
     1104 Craft Road #1 (Southern Hills Apartments). I came
     home at about 9:00 that evening and saw him and my
     girlfriend talking. He was on the couch and she was on
     the love seat directly in front of him talking. So, I left[,]
     . . . thinking that they may be having a relationship, I was
     mad.

     I left my apartment and when I returned I saw my
     roommates [sic] car leaving the apartments and I thought
     my girlfriend was in the car also so I followed them to
     talk to my girlfriend but when they got to Keith’s house
     Ranata was not in the car so I stopped to talk to Keith. I
     called Keith to the car and asked him what was up and he
     asked what was I talking about and I asked was him and
     Ranata in a relationship and he told me that it wasn’t my
     business so I told him that it was my business and it
     seems as if he saw my gun on the seat and looking at the
     gun, he hit me on the left side of my face and like dove
     into the car. I grabbed my gun, he grabbed my arm and
     I snatched away from him and pointed my gun at him and

                              -5-
     pulled the trigger. When I saw him fall, I took off. After
     I left I went to the Kings Gate Apartments and got into a
     fight with a young man and then I went to Orange
     Mound where I hid my gun in [an] abandoned apartment
     building on Arbra.

Q.   Terry, when you were following Kim and Keith, did you
     have your lights on or off?
A.   I had my lights on but I turned them off when we got to
     the corner of Tulane and Shelby Drive to see who was in
     the car but I could not.

Q.   Terry, what direction did you leave after you shot Keith?
A.   East on Loraine towards Tulane, I turned left and went
     north on Tulane to Shelby Drive. Turned right on Shelby
     Drive and went east.

Q.   Terry, describe your car that you drive?
A.   I drive a burgundy Pontiac Grand AM, 1993, 2-door SE.

Q.   Terry, does your car have fog lights on it?
A.   Yes sir, it has white fog lights.

Q.   Terry, do you know if Keith was drinking or drunk?
A.   Yes. He was drinking a gallon of wine with a friend in
     my home when I left. When I left and came back, he was
     still drinking some of the wine a while later.

Q.   Terry, were you drinking or using any type [of] drugs?
A.   No sir.

Q.   Terry, did you recently put the mercury out of a
     thermometer into the end of the bullets that were in your
     gun and cover the ends with candle wax?
A.   Yes sir[,] . . . I did that but not recently. It was when I
     first moved in to [sic] the apartment.

Q.   Terry, when you first encountered Keith, was it your
     intention to shoot him?
A.   No.

                             -6-
       Q.      Terry, is there anything else you can add to this statement
               that would aid in this investigation?
       A.      Yes sir, I’m sorry for what happened. I wish I could take
               it back.

       Q.      Did you give this statement of your own free will without
               any promises, threats or coercion?
       A.      Yes.

       Q.      Were you advised of your rights before you gave this
               statement?
       A.      Yes.

        The Defendant testified on his own behalf at trial. He claimed that on
one of the occasions while he was away from his apartment on the afternoon
prior to the murder, he received a page from his girlfriend, who was at his
apartment with Mull and the victim. The Defendant stated that as he drove
back to his apartment in response to the page, he passed Mull’s car on the road.
He testified that he believed his girlfriend was in the car with Mull, and he
therefore “blinked” his lights at Mull’s car. The Defendant maintained that
when Mull didn’t stop, he blew his horn and flashed his lights a second time.
He then followed her. The Defendant maintained that he turned off his lights
in order to see who was in Mull’s car. He explained, “I couldn’t see because
her car . . . had been in an accident. It was real . . . crushed up on one side, and
I couldn’t see in it.” The Defendant stated that he followed Mull’s car,
continuing to try to get her attention, but eventually lost the car after he turned
around.

        The Defendant testified that after losing sight of Mull’s car, he saw the
victim standing in the yard of his uncle’s home. The Defendant recalled that
he “called [the victim] over” to his car. When the victim approached,
according to the Defendant, the two men engaged in an argument about the
Defendant’s girlfriend. The Defendant described the victim as angry and
stated that the victim’s speech was slurred. The Defendant maintained that
during the argument, the victim hit him, and he tried to “fend [the victim] off.”
The Defendant claimed that the victim then “dove in[to]” his car, while still
hitting the Defendant, and attempted to grab the Defendant’s gun, which was
in plain view. According to the Defendant, he tried to push the victim out of



                                        -7-
the car, and as he pushed the victim away, he raised his gun and shot the
victim.

        The Defendant admitted that at the time he shot the victim, he was
“enraged.” The Defendant also admitted that on the night of the murder, he
was “suspic[ious]” that the victim and Newberry, his girlfriend, were starting
a relationship. He testified that on the day of the shooting, he and Newberry
were in “a fight” and were not really speaking. The Defendant recalled that
he was “upset at [his] girlfriend.”

        The Defendant testified that on the day of the shooting, he retrieved his
gun from the apartment that he shared with Mull because of Mull’s “under-age
daughter and just for safety reasons.” He admitted to putting mercury on the
tips of bullets, stating that “if [the mercury] got into a person . . . it would
make the wound more severe.” However, the Defendant maintained that he
altered his bullets solely “for protection.”

       A videotaped deposition of Dr. O.C. Smith, an assistant medical
examiner for Shelby County and Deputy Chief Medical Examiner for western
Tennessee, was admitted into evidence. In his deposition, Smith stated that he
performed the autopsy on the victim in this case. He stated that the victim died
of multiple gunshot wounds. Smith specified that three bullets entered the
Defendant’s body, two of which exited the victim’s body. Smith stated that
one of the bullets which entered the victim’s body severed the victim’s spinal
cord, rendering him incapacitated with “no voluntary control over his
extremities.”

        Dr. Smith retrieved a “plastic property material” from the interior of one
of the victim’s bullet wounds that he concluded was “consistent with candle-
wax.” Smith explained that “some people will [put candle wax on the tip of
a bullet] to cause a bullet to behave more like a full-metal jacket.” He stated
that a “full-metal jacket” is a bullet “that does not deform or fragment, and
therefore . . . does not cause increase[d] suffering.” He further explained that
“[t]here’s a concept out in the community, especially in the media industry,
that if a hollow-point bullet is filled with metallic liquid mercury and that
liquid mercury would be held in place by some devise [sic], that if that bullet
contacts the body at high speed it will cause an almost explosive effect on the
tissue.”




                                       -8-
               Smith also noted a “pre-death” injury to the victim’s “ring finger on his
       left hand that is a[n] evulsive type or a tearing type of laceration that peeled the
       skin down towards the finger-tip.” He explained that “something snagged the
       skin with sufficient force to peel the skin down.” Smith further noted “what
       is known in layman’s terms . . . as powder burns, or a stipple type pattern on
       the inside of [the victim’s] left wrist.” Smith stated that “stipple will mark the
       skin out to about twenty-four inches, for most handguns.” Finally, Smith
       noted an injury on the back of the victim’s head comprised of “a large area of
       bruising[,] . . . some skin scraping and . . . some skin tearing.” He explained,
       “It’s an injury due to contact with a broad, blunt object. Certainly a fall to the
       ground can cause something like that.”

State v. Terry Norris, No. W2000-00707-CCA-R3-CD, 2002 WL 1042184, at *1-6 (Tenn.
Crim. App., at Jackson, May 21, 2002), perm. app. denied (Tenn. Nov. 4, 2002).

        Following a trial, the jury convicted the Defendant of second degree murder, and the
trial court sentenced him to twenty-one years in the Tennessee Department of Correction.
Id. at *1.

        The Defendant appealed his conviction to this Court. Id. He contended that: (1) his
counsel were ineffective for failing to move for suppression of the Defendant’s confession
based upon a violation of his Fourth Amendment rights; and (2) his counsel were ineffective
for arguing a defense theory to the jury that was inconsistent with both the Defendant’s
wishes and testimony. Id. We concluded that the Defendant’s confession was not obtained
in violation of his Fourth Amendment rights and, thus, that his counsel were not ineffective
for failing to file a motion to suppress his statement based on the delay between the time of
his arrest and the judicial determination of probable cause. Id. We further concluded that
any error by defense counsel concerning the choice of defense strategy did not result in
prejudice to the Defendant. Id. We therefore affirmed the judgment of the trial court. Id.

      The Defendant appealed this Court’s holding to the Tennessee Supreme Court. Id.
The Tennessee Supreme Court denied his request for permission to appeal. Id.

                          B. Petition for Post-Conviction Relief

       The Defendant filed a pro se petition for post-conviction relief, followed by an
amended petition after the appointment of counsel and a supplement to the amended petition.
The Defendant alleged that appellate counsel was ineffective for not correctly stating his
issue pursuant to State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996). In Huddleston, our
Supreme Court held that a judicial determination of probable cause must occur within

                                               -9-
forty-eight hours of a warrantless arrest to protect a defendant’s Fourth Amendment rights.
924 S.W.2d at 672 (adopting McLaughlin, 500 U.S. 44). A confession obtained in violation
of this forty-eight-hour time line is subject to being excluded under a “fruit of the poisonous
tree” analysis. Id. at 674.

       This Court summarized the facts presented at the petition for post-conviction relief
hearing as follows:

                                    [Defendant’s] Proof

               At the [Defendant’s] evidentiary hearing, Lieutenant A.J. Christian of
       the Brighton Police Department testified that in 1997 he was a detective with
       the Memphis Police Department’s Homicide Bureau involved in the
       [Defendant’s] case. Christian said that the [Defendant’s] arrest report showed
       that he was in police custody at the homicide office on March 11, 1997, at 7:30
       p.m. He could not recall the exact time that the [Defendant] was taken into
       custody and explained that the arrest ticket would have the actual time and that
       the arrest narrative report “was just a supplement documenting the course of
       action that was taken after he was taken into custody.”

               Marcia Daniel, the [Defendant’s] mother, testified that on March 11,
       1997, police officers “called between 4:30 [p.m.] and five looking for [the
       Defendant].” Daniel located the [Defendant] and said he arrived home
       “between five and 5:15 [p.m.].” The police, who had arrived at the residence
       “maybe three to five minutes” before the [Defendant], left with him
       “approximately about 5:45” p.m. Daniel testified that she told trial counsel,
       but not appellate counsel, of these events. Daniel acknowledged that the
       [Defendant] called her on March 13, 1997, and that, although she could not
       recall the time of the phone call, he told her he had agreed to talk to the police
       but wanted to talk with her first.

               Trial counsel testified that during his representation of the [Defendant],
       he believed he had “open-file discovery” from the State. Asked if he was
       aware that the [Defendant] was in police custody at 7:30 p.m. on March 11,
       1997, trial counsel stated “that either [he] was aware or [he] should have been
       aware. [He], frankly, [did not] remember if anything was on the arrest ticket
       or not.” Trial counsel said that at the time he argued the [Defendant’s] motion
       to suppress his statement to police, he was aware of the “[t]he 48 hour rule”
       announced in Huddleston but acknowledged he “failed to raise that issue.”
       Trial counsel also acknowledged that he did not object to the definition of

                                             -10-
“knowingly” in the jury instructions. On cross-examination, trial counsel
testified that prior to the [Defendant] giving his statement on March 13, 1997,
he was presented with “an advice of rights form” at 4:05 p.m. and signed it at
4:12 p.m.


       The [Defendant] testified that he told appellate counsel that he was
arrested at his mother’s house on March 11, 1997, “[b]efore 7 p.m.” and that
more than forty-eight hours passed before he gave his statement to police on
March 13, 1997. He acknowledged that the advice of rights form showed that
he was given the form at 4:05 p.m. and that he signed it at 4:12 p.m. on March
13, but said he did not put the time on it and could not recall exactly what time
he signed it, only remembering “[it] was after the evening meal in the jail.”
The [Defendant] also acknowledged signing his police statement at 8:20 p.m.
and said that he actually gave the statement verbally before this time.

       On cross-examination, the [Defendant] acknowledged that he was not
in custody at 4:05 p.m. on March 11, 1997. He testified that the police initially
came to his mother’s house that day at 6:05 p.m., but left because he was not
at home, and then returned “[s]omewhere around” 7:00 p.m. to question him.
He acknowledged that he agreed to talk to the police on March 13, 1997, in
exchange for being allowed to talk to his mother, stating that he was able to
reach her at 6:50 p.m.

                                 State’s Proof

        Appellate counsel testified that he represented the [Defendant] on his
motion for a new trial and on appeal. Discussing the [Defendant’s]
Huddleston claim, which he raised in the [Defendant’s] motion for a new trial
and on appeal, appellate counsel said he focused on the fact that the
[Defendant’s] confession “was clearly illegal” because “from the record [the
police] didn’t have probable cause to arrest [the Defendant] in the first place.”
Asked if he thought the amount of time the [Defendant] was in custody prior
to giving his confession was a valid issue to pursue, appellate counsel
answered that he “apparently” did not because he did not raise it on appeal.
As for the jury instructions defining “knowingly,” appellate counsel stated that
“there’s no question that there was an error in the jury instructions, but [he did
not] think there was any question that it was harmless error” and, therefore, did
not raise it in the motion for a new trial or on appeal.



                                       -11-
Terry Jamar Norris v. State, No. W2005-01502-CCA-R3-PC, 2006 WL 2069432, at *5-6
(Tenn. Crim. App., at Jackson, July 6, 2006), Tenn. R. App. P. 11 application denied (Tenn.
Dec. 18, 2006).

      Addressing the issues, this Court affirmed the post-conviction court’s dismissal of the
Defendant’s petition for post-conviction relief. Concerning the Huddleston issue, we stated:

               The [Defendant] argues that “appellate counsel was ineffective for
       failing to show at [his] motion for new trial hearing that [his confession] was
       given more than 48 hours after his arrest in violation of State v. Huddleston.”
       However, in the [Defendant’s] direct appeal, this Court determined there was
       no Huddleston violation.

Id. at *8. The Court went on to quote from our decision in the Defendant’s direct appeal.
Id. at *8-9. The Court then noted that the post-conviction court, in its order dismissing the
petition for post-conviction relief, found the Defendant’s Huddleston argument to be without
merit. Id. at *9. We quoted the post-conviction court’s findings:

               Although the Huddleston issue was addressed on direct appeal, the
       Court will quickly address the issue in regard to the ineffective assistance of
       counsel claim against Appellate Counsel. [The Defendant] asserts that his
       statement should be excluded as “fruit of the poisonous tree” because it was
       given after forty-eight (48) hours of detention with no probable cause
       determination. However, the testimony does not support the claim. The
       [Defendant] signed an Advice of Rights form at 4:12 P.M. on March 13, 1997.
       The testimony of [the Defendant’s] mother indicated the police left her home
       around 5:45 P.M. on March 11, 1997. The [Defendant] admitted that he was
       not in custody at 4:05 P.M. on March 11, 1997; and also admitted he agreed
       to talk with police around 4:05 P.M. on March 13, 1997. The [Defendant]
       stated that he agreed to speak with police in order to get a phone call to his
       mother. His testimony further indicated that he then tried to contact his mother
       but was unable to reach her until about 6:50 P.M. on March 13, 1997. The
       Police stuck to their word and waited until the [Defendant] was able to speak
       to his mother before taking his statement. The [Defendant] cannot claim the
       time period was over forty-eight (48) hours when it was due to his desire to
       speak with his mother before making his statement.

Id. Our Court went on to hold:




                                             -12-
               We agree with the post-conviction court that this issue is without merit.
       Although the [Defendant] contends that his direct appeal would have turned
       out differently had appellate counsel showed that he was in custody more than
       forty-eight hours at the time he gave his statement to police, he has failed to
       meet his burden of showing that he actually was in custody more than
       forty-eight hours prior to giving his confession at 7:20 p.m. on March 13,
       1997. On direct appeal, this court found the [Defendant] was arrested at 8:45
       p.m. on March 11, 1997. At the post-conviction hearing, there was only
       conflicting testimony offered as to when the [Defendant] was taken into
       custody, but no records were entered into evidence to show that this court
       erred when, on direct appeal, it concluded that the [Defendant] was arrested
       on March 11, 1997, at 8:45 p.m. Accordingly, the record supports the
       determination of the post-conviction court that this claim is without merit.

Id.

                               C. Habeas Corpus Petitions

       On February 23, 2007, the Defendant filed a pro se petition for a writ of habeas corpus
in the Circuit Court of Lauderdale County, alleging that his conviction was void because at
the time he was sentenced, Tennessee Code Annotated section 40-35-209(e) did not provide
for 100% sentencing as a violent offender. On February 26, 2007, the habeas corpus court
summarily dismissed the petition, finding that there was nothing on the face of the judgment
to show that the Defendant’s conviction was void or that his sentence had expired. The
habeas corpus court noted that Tennessee Code Annotated section 40-35-501, in effect at the
time of the Defendant’s sentencing, mandated a 100% release eligibility date for a conviction
for second degree murder. The Defendant then filed an appeal to this Court, and we affirmed
the habeas corpus court’s judgment. Terry Jamar Norris v. Tony Parker, Warden, No.
W2007-00594-CCA-R3-HC, 2007 WL 4245730, at *1 (Tenn. Crim. App., at Jackson, Dec.
3, 2007).

       On December 10, 2007, the Defendant filed a pro se habeas corpus petition under 28
U.S.C. § 2254 in the United States District Court for the Western District of Tennessee.
Terry Jamar Norris v. Jerry Lester, Warden, 545 F. App’x 320, 323 (6th Cir. 2013). As
relevant to the appeal before us, the Defendant contended that his appellate counsel was
ineffective because he failed to effectively argue that his confession should be suppressed
because he gave it after being held for more than forty-eight hours without a probable-cause
determination, in violation of the forty-eight-hour rule in McLaughlin. Id. The district court
found that all of these claims lacked merit and denied a certificate of appealability (COA).
Regarding the Defendant’s McLaughlin claim, the district court said “Norris . . . cannot

                                             -13-
overcome his failure to demonstrate that he was actually in custody more than forty-eight
hours before giving his confession.”

      The United States Court of Appeals for the Sixth Circuit granted the Defendant’s
COA on two issues, only one of which is relevant here: whether the Defendant’s appellate
counsel was ineffective for inadequately presenting a challenge to the Defendant’s
confession based on McLaughlin. Id.

      The Sixth Circuit held:

              [The Defendant] contends that (1) his appellate counsel was deficient
      for failing to argue on direct appeal that [the Defendant’s] right to a prompt
      probable-cause determination was violated under McLaughlin; and (2) that
      there is a reasonable probability that [the Defendant] would have prevailed on
      direct appeal had the McLaughlin issue been raised.

              In McLaughlin, the Supreme Court explained the circumstances in
      which a proper warrantless arrest can lead to a Fourth Amendment violation
      if a probable-cause determination is not held promptly. 500 U.S. at 47, 111
      S.Ct. 1661. The Court created a burden-shifting standard that sought to
      balance the constitutional right to a prompt probable-cause determination with
      the “reasonable postponement” and “inevitable” delays that could result from
      “paperwork and logistical problems,” especially in jurisdictions where
      probable-cause determinations are combined with other pretrial procedures.
      See id. at 55, 111 S.Ct. 1661. If a probable-cause determination occurred
      within 48 hours of arrest, the burden is on the arrestee to demonstrate that the
      probable-cause determination was “delayed unreasonably.” Id. at 56-57, 111
      S.Ct. 1661. Delays “for the purpose of gathering additional evidence to justify
      the arrest,” as well as delays “for delay’s sake” were given as examples of
      unreasonable delay. Id. at 56, 111 S.Ct. 1661. However, where more than 48
      hours elapsed between arrest and probable-cause determination, the burden of
      proof lies with the prosecutor, who must demonstrate “the existence of a bona
      fide emergency or other extraordinary circumstance” beyond the ordinary
      logistics involved in combined proceedings. Id. at 57, 111 S.Ct. 1661.

             In State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), the Tennessee
      Supreme Court held that “the exclusionary rule should apply when a police
      officer fails to bring an arrestee before a magistrate [for a probable cause
      determination] within the time allowed by McLaughlin.” Huddleston, 924
      S.W.2d at 673. The Huddleston court held that the “fruit of the poisonous

                                            -14-
tree” analysis should determine whether to suppress statements made during
a detention that violates McLaughlin. Id. at 674 (citations omitted). Where the
state courts refer to a “Huddleston violation,” they are referring by implication
to a McLaughlin violation.

       [The Defendant’s] appellate counsel alerted the court to the existence
of McLaughlin on direct appeal, but did not present a McLaughlin challenge
to [the Defendant’s] confession. Without citing McLaughlin, the opening
appellate brief argued that [the Defendant’s] confession must be suppressed
under Huddleston (which merely applies McLaughlin) and focused primarily
on subjective intent as one would for a McLaughlin claim. In his reply brief,
appellate counsel discussed McLaughlin and the 48-hour presumption directly,
but then stated that [the Defendant] complained of a Brown violation.
Certainly appellate counsel did not argue that [the Defendant] had been held
for over 48 hours without a probable cause determination, nor did he dissect
the record to demonstrate this, as would have been necessary to any
McLaughlin challenge.

        On direct appeal, the TCCA sua sponte dismissed the possibility of a
McLaughlin claim on the grounds that [the Defendant] was held less than 48
hours, State v. Norris, 2002 WL 1042184 at *9, a conclusion based on an
arrest time of 8:45 p.m. on March 11, when Norris was booked into jail, see
id. at *7. At [the Defendant’s] post-conviction appeal, the TCCA stood by that
arrest time because it concluded that, even after a post-conviction evidentiary
hearing, “there was only conflicting testimony offered as to when the petitioner
was taken into custody.” See Norris v. State, 2006 WL 2069432 at *9. Thus,
the TCCA resolved this ineffective-assistance claim entirely on the merits of
the underlying alleged McLaughlin violation, specifically on the 48-hour
calculation.

        Treating the 8:45 p.m. booking time as the arrest time was contrary to
clearly established federal law. Even if there is no formal arrest, a person is
considered seized for Fourth Amendment purposes when, under the
circumstances, a reasonable person would not believe himself free to leave.
See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d
565 (1988). It is undisputed that [the Defendant] was transported in handcuffs
from his mother’s home to the police station. Officer Christian testified that,
at the time [the Defendant] was put into the squad car, he was “taken into
custody” and confirmed that [the Defendant] was not free to leave. Officer
McCommon testified that he and Officer Christian went “[t]o pick [the

                                      -15-
Defendant] up at his home and bring him in for a statement.” Under these
circumstances, a reasonable person would not feel free to “decline the officers’
request[].” See Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115
L.Ed.2d 389 (1991). Accordingly,[the Defendant] was arrested when “taken
into custody” by Officers Christian and McCommon.

        However, the TCCA’s conclusion does not rely solely on the 8:45 p.m.
arrest time, but also notes that testimony conflicted as to when [the Defendant]
was taken into custody. Even resolving all testimony conflicts in favor of the
government, it was an unreasonable determination of fact to find that [the
Defendant] was in custody for less than 48 hours at the time he began to
confess. Even if we discount entirely the testimonies of [the Defendant] and
Daniels favoring an earlier time of arrest, it is undisputed that [the Defendant]
was already at the police station at 7:30 p.m. on March 11 and had begun
talking with Sergeant Christian. To find that [the Defendant] was in custody
for less than 48 hours before confessing would require one to believe that [the
Defendant] was free to go at 7:20 p.m. on March 11, and that police took less
than ten minutes to tell him he was being taken into custody, handcuff him,
place him in the back of the cruiser, drive him five-and-a-quarter miles, bring
him into the police station, and begin their interview. This is simply
implausible. Notwithstanding the conflicts in testimony, the state court’s
determination that [the Defendant] was in custody for less than 48 hours prior
to confessing was an unreasonable determination of fact.

        Although [the Defendant’s] attorney was deficient in failing to focus on
the precise length of [the Defendant’s] detention and such an argument had a
reasonable probability of persuading the state court that [the Defendant] had
been in custody for over 48 hours prior to giving his statement on March 13,
that fact alone is not enough to prove prejudice. Even if the state court had
concluded that there were more than 48 hours of detention prior to confession,
under Huddleston, Tennessee courts must find that the confession was “fruit
of the poisonous tree” in order to suppress it. 924 S.W.2d at 674-75. The
court would have had to consider four factors: “(1) the presence or absence of
Miranda warnings; (2) the temporal proximity of the arrest and the confession;
(3) the presence of intervening circumstances; and finally, of particular
significance, (4) the purpose and flagrancy of the official misconduct.” See id.
Quoting McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661, the Huddleston court
held that “delay ‘for the purpose of gathering additional evidence to justify the
arrest’” supports a finding of purposeful police misconduct. Id. at 676.



                                      -16-
      There is evidence in the record suggesting that officers kept [the Defendant]
      detained to gather additional evidence. Captain Logan testified:

             [Logan:] Based on [the statements of Lakendra Mull and
             Charles Milem] we decided that [the Defendant] was a good
             suspect for this homicide.

             [The Defendant’s Attorney:] . . . but did you have probable
             cause to charge him?

             [Logan:] Well, after picking him up and getting him in the office
             and talking to him, he admitted to it.

                    ....

             [The Defendant’s Attorney:] You had strong suspicions, and you
             held him to do further investigation; is that correct?

             [Logan:] Yes, we did.

              Furthermore, the record contains no alternative explanation for [the
      Defendant’s] prolonged detention. See McLaughlin, 500 U.S. at 57, 111 S.Ct.
      1661 (listing examples of appropriate reasons for delay: “transporting arrested
      persons from one facility to another, handling late-night bookings . . .,
      obtaining the presence of an arresting officer who may be busy processing
      other suspects or securing the premises of an arrest”). Since purpose is the
      most important of the four factors and the burden of proof would have been on
      the government instead of [the Defendant], there is a reasonable probability
      that the confession would have been suppressed if [the Defendant’s] appellate
      counsel had raised the McLaughlin issue in a reasonably competent manner
      and persuaded the court on direct appeal that [the Defendant’s] pre-confession
      detention was longer than 48 hours.

             ....

             Accordingly, we grant the petition for writ of habeas corpus pursuant
      to 28 U.S.C. § 2254(d), unless the [the State] reopens [the Defendant’s] appeal
      within 180 days to allow him to raise the McLaughlin issue on direct appeal.

Norris, 545 F. App’x at 326-69.

                                           -17-
       After the Sixth Circuit’s judgment, the State reopened the Defendant’s appeal to allow
him to raise the McLaughlin issue. That is the issue currently before this Court.

                                              II. Analysis

        On appeal, the Defendant contends that the violation of his McLaughlin rights requires
that his confession be suppressed. He asserts that the Memphis Police violated the
Defendant’s right to a prompt probable cause hearing as required by McLaughlin. He notes
that the police arrested him without a warrant and confined him to jail for three nights before
taking him to a magistrate for a probable cause determination. Further, as the Sixth Circuit
noted, the record contains no alternative explanation for the Defendant’s prolonged detention
besides the police’s desire to gather additional evidence.

       The State responds by first contending that our review of this issue is limited to plain
error because the Defendant did not raise this issue during his suppression hearing and only
did so during his motion for new trial by indirectly addressing it as an ineffective assistance
of counsel claim. The State asserts that the Defendant cannot show that the trial court
committed plain error when it admitted the confession.

                                             A. Plain Error

       As the State points out, this Court has stated: “[A] party is bound by the grounds
asserted when making an objection. The party cannot assert a new or different theory to
support the objection in the motion for a new trial or in the appellate court.” 1 State v.
Adkisson, 899 S.W.2d 626, 634-635 (Tenn. Crim. App. 1994); see State v. Aucoin, 756
S.W.2d 705, 715 (Tenn. Crim. App. 1988) (holding that an appellant cannot object on one
ground and assert a new basis on appeal); see also State v. David Dwayne Smith, No. E2007-
00084-CCA-R3-CD, 2009 WL 230696, at *21 (Tenn. Crim. App., at Knoxville, Feb. 2,

       1
           In Adkisson, this Court stated:

               When, as here, a party abandons the ground asserted when the objection was made
       and asserts completely different grounds in the motion for a new trial and in this Court, the
       party waives the issue. State v. Matthews, 805 S.W.2d at 781; State v. Aucoin, 756 S.W.2d
       at 715; State v. Dobbins, 754 S.W.2d at 641; State v. Davis, 751 S.W.2d at 171; State v.
       Brock, 678 S.W.2d at 490. This theory finds its origin in three well-established rules. First,
       as a general rule, a party will not be permitted to assert an issue for the first time in the
       appellate court. Second, an appellate court will limit its decision to the ground asserted
       when the trial court made its ruling. Third, an appellate court will not permit a party to take
       advantage of its adversary when it is too late to remedy the basis of the objection.

Adkisson, 899 S.W.2d at 635.

                                                    -18-
2009), Tenn. R. App. P. 11 application denied (Tenn. Aug. 17, 2009). When that happens,
the party waives the issue. See Adkisson, 899 S.W.2d at 635; State v. Matthews, 805 S.W.2d
776, 781 (Tenn. Crim. App. 1990); Aucoin, 756 S.W.2d at 715; State v. Dobbins, 754 S.W.2d
637, 641 (Tenn. Crim. App. 1988); State v. Brock, 678 S.W.2d 486, 490 (Tenn. Crim. App.
1984). We may still review the issue for plain error. Adkisson, 899 S.W.2d at 634-635.

        In Adkisson, as in this case, the action challenged on appeal was the admission of
evidence. To challenge such a ruling on appeal, the appellant is required by rule not only to
enter a contemporaneous objection, but also to state the “specific ground of objection if the
specific ground was not apparent from the context.” See Tenn. R. Evid. 103(a)(1). The
Defendant in this case did not allege a McLaughlin or Huddleston issue in his motion to
suppress or at the motion to suppress hearing. Instead he raised two issues in his motion to
suppress: (1) that the police were aware that he was an epileptic and willfully withheld his
medication until he gave a statement to the police; and (2) that he refused to sign a waiver
of rights thereby exercising his right to remain silent and further that he asked to speak with
an attorney. Because the Defendant did not object in his motion to suppress on the grounds
of Huddleston or McLaughlin, he has waived this issue, and our review is limited to plain
error review. See Adkisson, 899 S.W.2d at 634.

        We may review issues normally considered waived pursuant to the plain error
doctrine. Tenn. R. App. P. 36(b). The doctrine of plain error only applies when all five of
the following factors have been established:

       (1) the record clearly establishes what occurred in the trial court;

       (2) the error breached a clear and unequivocal rule of law;

       (3) the error adversely affected a substantial right of the complaining party;

       (4) the error was not waived for tactical reasons; and

       (5) substantial justice is at stake; that is, the error was so significant that it
       “probably changed the outcome of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274,
282-83 (Tenn. 2000)). “An error would have to [be] especially egregious in nature, striking
at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.”
State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

                          B. Clear and Unequivocal Rule of Law

                                               -19-
        The Defendant asserts that his confession was given after he was illegally detained
for more than forty-eight hours. He notes, among other things, that Captain Logan admitted
that the Defendant “refused to talk” when he was arrested and that he held him for “further
investigation.” He points to Captain Logan’s response that he held the Defendant for further
investigation and interrogation because “we had that right.” The Defendant avers that this
reflects a misunderstanding of McLaughlin, which allows for a reasonable postponement of
a probable cause determination while police cope with everyday problems of processing
suspects but does not give police the “right” to arrest suspects without a warrant and
interrogate them for forty-eight hours before beginning the process of taking the suspect
before a magistrate.

        The State counters that the Defendant cannot prove that there has been a violation of
a clear and unequivocal rule of law because, first, the Sixth Circuit improperly found that the
Defendant was detained for more than forty-eight hours. The State asserts that, “Though
there is some ambiguity in the trial-court record, the record fairly indicates that the
confession occurred within 48 hours of the [D]efendant’s arrest.” The State points out that
both Sergeant McCommon and the Defendant testified that the Defendant made an oral
confession to police before he spoke with his mother on the telephone. The State next asserts
that the Defendant’s argument that the police held him for an improper purpose fails because
(1) he has not shown a Huddleston violation and (2) he has not shown that consideration of
the error is necessary to do substantial justice because the record shows that the police
continued to investigate the crime while the Defendant was detained but not that they
detained him so that they could get further evidence to justify the Defendant’s arrest.

        We begin with the proposition that “[b]oth the state and federal constitutions protect
against unreasonable searches and seizures; the general rule is that a warrantless search or
seizure is presumed unreasonable and any evidence discovered is subject to suppression.”
State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Our Supreme Court has recognized three
categories of police interactions with private citizens: “(1) a full-scale arrest, which requires
probable cause; (2) a brief investigatory detention, requiring reasonable suspicion of
wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification.”
Id. (citing State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)).

       The law requires that, when a person is arrested without a warrant, he or she must be
brought “before a magistrate to ‘seek a prompt judicial determination of probable cause.’”
Bishop, 431 S.W.3d 22, 42 (Tenn. 2014) (quoting Gerstein v. Pugh, 420 U.S. 103, 125
(1975) (holding that “the Fourth Amendment requires a timely judicial determination of
probable cause as a prerequisite to detention”)); see also State v. Huddleston, 924 S.W.2d
666, 672 n.2 (Tenn. 1996). Tennessee Rule of Criminal Procedure 5(a)(1) provides that
“[a]ny person arrested - except upon a capias pursuant to an indictment or presentment - shall

                                              -20-
be taken without unnecessary delay before the nearest appropriate magistrate.” The
Tennessee Supreme Court has recently stated that “a delay of less than forty-eight hours is
presumptively reasonable” and that when the delay exceeds forty-eight hours, the State must
show that “‘a bona fide emergency or other extraordinary circumstance’ caused the delay.”
Bishop, 431 S.W.3d at 42 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991)). Nonetheless, even a delay of less than forty-eight hours may be unreasonable “if
the delay is ‘for the purpose of gathering additional evidence to justify the arrest’ or if the
delay is ‘motivated by ill will against the arrested individual, or delay for delay’s sake.’” Id.
(quoting McLaughlin, 500 U.S. at 56). “Courts cannot ignore the often unavoidable delays
in transporting arrested persons from one facility to another, handling late-night bookings
where no magistrate is readily available, obtaining the presence of an arresting officer who
may be busy processing other suspects or securing the premises of an arrest, and other
practical realities.” McLaughlin, 500 U.S. at 56-57.

        The remedy for failing to bring an arrestee before a magistrate without unnecessary
delay is exclusion of “any evidence obtained by virtue of a suspect’s unlawful detention,”
unless an exception to the exclusionary rule applies. Id. (citing Huddleston, 924 S.W.2d at
673-75). However, “when a suspect is arrested based on probable cause, the ensuing
detention is typically not illegal until it ‘ripens’ into a Gerstein violation.” Id. (citing
Huddleston, 924 S.W.2d at 675). “Obviously, if [an arrestee’s] statement was given prior to
the time the detention ripened into a constitutional violation, it is not the product of the
illegality and should not be suppressed.” Huddleston, 924 S.W.2d at 675.

        The first question we must address is whether the police had probable cause to arrest
the Defendant at the time of his arrest. “Probable cause . . . exists if, at the time of the arrest,
the facts and circumstances within the knowledge of the officers, and of which they had
reasonably trustworthy information, are ‘sufficient to warrant a prudent [person] in believing
that the [defendant] had committed or was committing an offense.’” Echols, 382 SW.3d 266,
277-78 (Tenn. 2012) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)); see Beck
v. Ohio, 379 U.S. 89, 91(1964). “‘Probable cause must be more than a mere suspicion.’”
Echols, 382 S.W.3d at 278 (quoting State v. Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005)).
However, probable cause “‘deal[s] with probabilities[,] . . . not technical[ities,] . . . the
factual and practical considerations of everyday life on which reasonable and prudent
[persons] . . . act.’” Id. (quoting State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)); see
Brinegar v. United States, 338 U.S. 160, 175 (1949). Moreover, a determination of probable
cause encompasses the accumulation of information known to law enforcement collectively
if a sufficient nexus of communication exists between the arresting officer and a fellow
officer with pertinent knowledge. Echols, 382 S.W.3d at 278 (citation omitted).




                                               -21-
       When determining whether the police possessed probable cause, “the courts should
consider the collective knowledge that law enforcement possessed at the time of the arrest,
provided that a sufficient nexus of communication existed between the arresting officer and
any other officer or officers who possessed relevant information.” Bishop, 431 S.W.3d at 36.
Such a nexus exists when the officers are relaying information or when one officer directs
another officer to act. Id. It matters not whether the arresting officers themselves believed
that probable cause existed. Id. (citing Huddleston, 924 S.W.2d 666, 676 (“[An officer’s]
subjective belief that he did not have enough evidence to obtain a warrant is irrelevant to
whether or not probable cause actually existed.”)). When determining the existence of
probable cause, the courts should also consider the entire record, including the proof adduced
at both the suppression hearing and the trial. Id. at 36-37 (citing State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998)).

       In this case, the Defendant never specifically asserted to the trial court that the police
did not have probable cause to arrest him. Accordingly, much of the evidence needed to
determine whether the police had probable cause to arrest the Defendant must be pieced
together from the record. During the motion to suppress hearing, the trial, and during the
motion for new trial hearing, evidence was presented about what police knew at the time of
the Defendant’s arrest. The police knew that the murder in this case occurred on March 10,
1997. Police began an investigation of the homicide, and the Defendant was identified as a
“suspect.” Sergeant A.J. Christian testified during the motion to suppress hearing that the
police had spoken with witnesses “[t]hat actually saw the shooting.” Charles Milem, the
victim’s uncle, gave police officers a statement the night of the shooting. He and other
witnesses at the scene told officers that they had seen a “white box-type Chevy headed” away
from the scene. One of the State’s key witnesses, Lakendra Mull, whose testimony is
summarized above, testified at trial that she found out about the shooting when she returned
home after dropping the victim off the night he was shot. She said that she spoke with police
and gave them a statement the day after this incident. This statement implicated the
Defendant as a suspect in this shooting. It appears from the record that the police had spoken
with Ms. Mull before they arrested the Defendant at some point in the “evening” shortly
before 8:45 p.m. Ms. Mull’s statement provided the police with the Defendant’s motive for
the shooting and his opportunity. Her statement also indicated that the Defendant carried and
possessed a weapon. This statement gave the officers sufficient probable cause for the
Defendant’s arrest.

        The Defendant points out that, at one point during Captain Logan’s testimony, he
stated that he did not have “enough to charge” the Defendant at the time of his arrest. Later
during that same testimony, however, Captain Logan was asked whether he was testifying
that the police did not have probable cause to charge the Defendant upon his initial arrest,
and the Captain answered in the negative. Regardless, “[i]t matters not whether the arresting

                                              -22-
officers themselves believed that probable cause existed.” Bishop, 431 S.W.3d at 36. We
conclude that the record evinces that the police did, in fact, have probable cause to arrest the
Defendant after receiving Lakendra Mull’s staement on the evening of March 11, 1997.

        “[W]hen a suspect is arrested based on probable cause, the ensuing detention is
typically not illegal until it ‘ripens’ into a Gerstein violation.” McLaughlin, 500 U.S. at 56-
57. (citing Huddleston, 924 S.W.2d at 675). “Obviously, if [an arrestee’s] statement was
given prior to the time the detention ripened into a constitutional violation, it is not the
product of the illegality and should not be suppressed.” Huddleston, 924 S.W.2d at 675. The
question we must now address is whether the record proves that the Defendant was in
custody for more than forty-eight hours before he gave his statement, so as to prove that the
his detention breached a clear and unequivocal rule of law.

        At the hearing on the motion to suppress the Defendant’s statement, the evidence
revealed that the Defendant was taken into police custody for questioning without a warrant
on the evening of March 11, 1997. Officers transported the Defendant to the Memphis
Police Department Homicide Office for a formal interview. There, he was advised of his
rights. According to officers, the Defendant refused to sign a waiver of rights form, but
agreed to talk to the officers. At the time, the Defendant denied any involvement in the death
of the victim. At 8:20 p.m. on March 11, 1997, the Defendant was allowed to telephone his
mother. Officers then booked the Defendant into jail. The Defendant’s “arrest ticket”
indicated that the Defendant was arrested at 8:45 p.m. on March 11, 1997.2

       The evidence of the times of the Defendant’s arrest and his first statement are
ambiguous at best. The Defendant’s mother indicated the police left her home around 5:45
p.m. on March 11, 1997. The Defendant admitted that he was not in custody at 4:05 p.m. on
March 11, 1997, and also that he agreed to talk with police around 4:05 p.m. on March 13,
1997. An officer who participated in questioning the Defendant testified that on March 13,
1997, the Defendant signed a waiver of rights form at 4:05 p.m. The Defendant then told
officers that he did not wish to make a statement until he spoke to his mother. Both Sergeant
McCommon and the Defendant testified that the Defendant orally confessed to this killing
before he spoke with his mother but after he signed the waiver of rights form. The Defendant
then spoke with his mother at 6:52 p.m. This means that his first confession occurred
between 4:05 p.m. and 6:52 p.m. on March 18, 1997. At 7:20 p.m., the Defendant made
another statement to the officers, in which he confessed to shooting the victim. At 8:20 p.m.,
the Defendant signed the typewritten statement that he made to police. The officers then



         2
          Although Sergeant A. J. Christian discussed an “arrest ticket” during his testimony at the hearing on the motion
to suppress, we find nothing in the record concerning the admission into evidence of such an item or a copy thereof.

                                                          -23-
allowed the Defendant to make another phone call at 8:23 p.m. According to one officer,
during the Defendant’s interview on March 13, the officers fed him a meal.

       While not totally clear, it appears that the Defendant made his first confession before
being in custody for more than forty-eight hours. It also appears that part of the delay in the
forty-eight hour time frame was caused by the Defendant’s desire to speak with his mother.
Because of the ambiguity and because some of the delay is attributable to the Defendant, we
conclude that the Defendant’s detention did not breach a clear and unequivocal rule of law.
The Defendant is not entitled to plain error review on this basis.

                                   C. Substantial Justice

       Because we have concluded that the Defendant’s detention did not breach a clear and
unequivocal rule of law, we need not go further in our analysis. The Tennessee Supreme
Court, however, recently addressed an issue similar to the one currently before us in State v.
Bishop, 431 S.W.3d 22 (Tenn. 2014). In that case, the Court concluded:

       Mr. Bishop was arrested with probable cause. He subsequently confessed
       three times to shooting Maurice Taylor. On one of those occasions he was
       testifying under oath before a jury. Under these circumstances, it is difficult
       to perceive how substantial justice requires the reversal of his conviction for
       first-degree felony murder in perpetration of an attempted aggravated robbery.


Id. at *45.

        We reach a similar conclusion in this case. There were witnesses to the events before
and during the shooting that showed that the Defendant was jealous of the victim’s
relationship with the Defendant’s girlfriend. The Defendant followed the victim to the
victim’s home on the night of the shooting, believing that the Defendant’s girlfriend was in
the car with the victim and the Defendant’s roommate. Shell casings were found at the scene
of the crime near the body. The Defendant told officers where they could find the gun that
he had used in the murder. Police retrieved the weapon and submitted the 9mm pistol found,
seven live cartridges, one bullet, one bullet core fragment, and three fired cartridge casings
to the Tennessee Bureau of Investigation Crime Laboratory. Testing showed that all three
of the fired cartridge cases had been fired through the submitted pistol. The bullet fragment
had also been fired through the barrel of the pistol. The Defendant confessed to police that
he had committed this murder, and he testified at trial that he had shot the victim but
attempted to explain that he had done so in self-defense. Under these circumstances, it is



                                             -24-
difficult to perceive how substantial justice requires the reversal of his conviction for second
degree murder.

       Accordingly, we affirm the judgment of the trial court.




                                                     ___________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




                                              -25-
