         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                         DECEMB ER SESSION, 1998            April 23, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                )    C.C.A. NO. 02C01-9710-CR-00394
                                   )
           Appellee,               )
                                   )    SHELBY COUNTY
V.                                 )
                                   )
                                   )    HON. W. FRED AXLEY, JUDGE
BERNARD T. ANDERSON,               )
                                   )
           Appe llant.             )    (FIRST D EGRE E MU RDER )



FOR THE APPELLANT:                      FOR THE APPELLEE:

LEE WILSON                              JOHN KNOX WALKUP
200 Jefferson Avenue, Ste. 800          Attorney General & Reporter
Memphis, TN 38103
                                        DOUGLAS D. HIMES
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenu e North
                                        Nashville, TN 37243

                                        JOH N W. P IERO TTI
                                        District Attorn ey Ge neral

                                        EDG AR PE TER SON , IV
                                        Assistant District Attorney General
                                        Criminal Justice Center, Suite 301
                                        201 Poplar Avenue
                                        Memphis, TN 38103




OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                   OPINION
      The Defe ndan t, Bern ard T . Ande rson, a ppea ls as of r ight from his conviction

for first degree murder in the Shelby County Criminal Court.                Following the

sentencing phase of the trial, the jury sentenced the Defendant to life imprisonment

without the poss ibility of parole. Defendant asserts the followin g issue s on a ppea l:

      I.    Whether the trial court erred by d enying D efenda nt’s motio n to
      suppress and allowing Defendant’s statements to the police to be
      admitted into evidence;

       II.   Whether the trial court properly admitted Defe ndan t’s prior
       conviction for theft;

       III.  Whether the trial court properly admitted certain photographs
       which Defendant alleges were more prejudicial than probative;

       IV.   Whether the evidence was su fficient to convict Defendant of first
       degree murde r;

       V.    Whether the evidence was sufficient to impose life imprisonment
       without the possibility of parole based upon the aggravating
       circumstance that the murder was committed during the commission of
       a robbery; and

       VI.   Whether the trial court erred in admitting evidence of “other
       crimes” through Defendant’s statements to the police.

Based upon the erro neous ad mission of D efendant’s state ment of Jan uary 11, 1995,

to the p olice, w e reve rse the Defe ndan t’s con viction a nd rem and fo r a new trial.



       A pretrial hearing was held on September 14, 1995, to determine whether

three (3) statements, taken on October 10, 1994, January 9, 1995, and January 11,

1995, should b e supp ressed pursua nt to Defendant’s pretrial motion . Otis Stew art,

the chief in vestiga ting offic er in the Homicide Division, was assigned to the murder

of Gregory Harris. Information given to the police pointed to the Defendant as

having a prior altercation with the victim. On October 10, 1994, Defendant appeared



                                            -2-
at the police station to provide a witness statem ent. Defendant was accompanied

by an atto rney, F orrest Dura nd, wh o had not as yet bee n retain ed to represent

Defen dant. Defendant was not given his Miranda rights prior to giving his statement

as Stewart explained that he was not a suspect at that time. Defendant gave a nine

(9) page statement in which he denied any involvement or knowledge regarding the

murder of the victim. Defendant instead related that the last time he had spoken

with the victim was on September 24, 1994, three (3) days prior to his murder on

September 27, 1994. Durand was prese nt durin g the e ntire tim e in which Defendant

gave his statement, and Defendant and Durand left after the Defendant completed

his statem ent.



      Stewart received further information that Defendant was involved in the

murder of the victim and asked him to com e in for questioning in January 1995. On

January 9, 1995, Defendant and Durand again appeared at the police station for an

interview. Defendant was advised of his constitutional rights and then initialed a

written waiver of his rights at 3:30 p.m. After conferring with Durand, Defendant

gave an oral sta temen t. At 5:20 p.m ., the Defe ndant w as aga in advised of his rights

and then s igned a written waiver of his rights. Stewart recalled that Dura nd wa s “in

and out” during the course of the interview.



      In this five (5) page statem ent given to police o n January 9, 1995, Defendant

admitted that he was involved in the murder of the victim. On September 27, 1994,

Defendant beeped the victim, knowing that Robma W illiamson intended to kill the

victim. Defen dant w as living with Williamson and Williamson’s family at the time.

Defendant arranged for the victim to give them a ride. After being picked up by the

victim outside o f William son’s ho me, the three (3) drove to a rural area of Shelby

                                           -3-
Coun ty where Williamson shot the victim tw ice. At th e con clusio n of his statem ent,

Defenda nt was taken into police custody.



       On January 11, 1995, Stewart got Defendant out of h is jail cell a t 1:30 p .m. in

order to clarify some things regarding his prior statement. Stewart recalled that

Defendant was allowed to telephone his father, Darrell Anderson, at 1:35 p.m.

Defendant was again advised of his rights and signed a written waiver. Stewart

stated that D efend ant did not ask for his attorney, nor did Stewart attempt to contact

Durand. In this final and third statement to the police, Defendant stated that he

actually sh ot the victim based upon th e victim’s d isrespec t toward h im.



       Defendant also testified at the hea ring. He recalled that on October 10, 1994,

Durand accompanied him to the police sta tion an d the p olice a dvised him o f his

rights. On January 9, 1995, Durand again accompanied Defendant to the police

station. During the course of the intervie w with the police, Du rand left for a period

of twenty-five (25) minutes. Although the police did call Durand as requested by

Defendant during Durand’s absence, he claimed the police continued to question

him. Both Defendant and Durand were given the opportunity to read the statement

prior to Defendant signing it. Defendant stated this statement was given freely and

voluntarily.



       On January 11 , 1995, Stewa rt retrieved Defendant from his jail cell in order

to “clear u p” his p reviou s state men t. Defe ndan t testified that he requested the

presence of his attorney on three (3) occasions, but that Stewart refused each

request. Defendant also did not recall being advised of his rights, although he did

sign a “telephone waiver” (form which docu ments D efendant’s req uest for a

                                           -4-
telephone call), prior to his statement even though he did not ca ll his father until the

statement had been completed. Defendant stated that he gave this third statement

because he “was sca red of what m y charge pa rtner might do to [him] or what the

officers probably would want to do to [him].” Defendant did read the statement

before h e signed it.



      Forrest Duran d testified that on October 10, 1994, he was only assisting

Defendant at Defendant’s brother’s request. Defendant was only interviewed as a

witness that day, but Durand was certain that he was not present when the

statement was typed up. On January 9, 1995, Durand represented Defendant,

although he had not as yet been paid a retainer fee. After being present during a

portion of the interview, Durand left with the impression that the police were through

and were drawing up charges. Durand returned to his of fice, bu t at app roxim ately

4:15 p.m. he received notice that Defendant was giving a statement. Durand

recalled that he was “s tunne d and shoc ked” w hen h e rece ived the message.

Durand return ed im med iately to the police station, although he believed that some

statem ents were given be fore his return. Durand was present at the conclusion of

the statem ent, followin g which he and Defen dant sign ed the sta temen t. Durand was

not notified or even aware of the third stateme nt given by the D efendant on January

11, 1995.

      In its ruling on the m otion to suppress, the trial court found that on January 9,

1995, Defendant came to the police station with his attorney at approximately 3:00

p.m. Specifically, the trial court made the following findings:

      After discussion w ith the police and [D efendant], [Defe ndant’s attorney]
      left the police department. Anderson was advised of his rights at 3:30
      that afternoon and initialed an acknowledgment form which described
      those rights. Anderson requested a second conference w ith Mr.
      Durand before answering any questions or making a statem ent.

                                           -5-
      Mr. Durand was called and returned to the police department. At 5:10
      p.m. Anderson was again advised of his rights and signed the advice
      of rights and waiver of rights forms used by the Memphis Police
      Depa rtment. At 5:23 p.m. Anderson was told that he was un der arres t,
      that he might be charged with first degree murder, and, after he
      acknowledged understanding the rights which w ere aga in explaine d to
      him, Anderson began to give his second statement. Anderson admitted
      calling Gregory Harris with full knowledge that he was to be murdered
      and accused Robma Williamson of shooting the victim. The statement
      ended with the following:

      Q: Is your attorney, F orest Du rrand, pre sent du ring this state ment?
      A: Yes sir.
      Q: Is this statem ent given freely and truthfully, withou t any threa ts or
      promises?
      A: Yes sir.
      Q: I will ask you to read over this five page statem ent, an d if you fin d it
      to be true and correct given by you, I will ask you to initial the bottom
      right hand corner of the first four pages and sign your name, date and
      time on the lines provided below. Do you understand?
      A: Yes sir.

      (Emph asis added ).



The trial court further noted that the Defendant initialed each page of the statement

and signed it at 6:16 p.m. on January 9, 1995. Defendant’s attorney also signed the

statement as a witness.



      At trial, the S tate be gan its eviden ce with the testimony of Robert Harris.

Harris, the victim’s father, testified that in September 1994, the victim was living at

home with his parents and working for Federal Express. On September 27, 1994,

the victim left his home to go to work and Harris never saw the victim alive again.

Police officers came to their home early in the morning hours of September 28,

1994, to notify th e fam ily of the vic tim’s d eath. H arris went to the morgue and

identified his son. Harris recovered his son’s personal property from the police,

including lighters, a sm all knife, a comb, a compact, a tube of chap-stick, a be eper,

two (2) ring s, and on e (1) pen ny.

                                           -6-
      Patric ia Harris, the victim’s mother, testified that her son and the Defendant

had known each other since elementary sch ool. On S eptem ber 24, 1 994, prio r to

leaving for work, Mrs. Harris gave the victim approximately $10.00 when he asked

her if she had any m oney. Because she had a headache, she laid down in her

bedroom. When she arose, her son and Erby Pritchard were there. Around 5:45

p.m., the victim came into her bedroom and asked what they were going to eat for

dinner. After replying that she did not feel well because of her headache, she told

him sh e would not be co oking. T his was th e last time she saw the victim a live.



      On September 28, 1994, at approximately 2:00 a.m., a police officer arrived

at her home and they advised her of the victim’s death. The Defendant telephoned

her home and asked what he could do for their family d ue to the v ictim’s dea th. Mrs.

Harris estimated that the Defendant called two (2) or three (3) times that day. She

explained on cross-examination that the Defendant had been barred from their home

and she could not say that the victim and the Defendant were friends at the time of

the victim’s death.



      Dr. Thom as Fran cisco is the medic al exam iner for Shelby C ounty, and he

performed the autopsy of the victim on September 29, 1994. His examin ation

revealed that there were two (2) gunshot wounds to the head that were “near-

gunshot wounds,” meaning that the powder was deposited on the skin itself. As the

range of fire was found to be “loose contact,” he stated that the muzzle was not tight

against the head but was close enough that the soot and powder and stipling were

deposited on the skin adjacent to the area. Dr. Francisco described that with loose

contact gunshots, the muzzle of the gun was probably touching the body upon firing.

Dr. Francisco described the damage to the victim’s brain as the skull being fractured,

                                          -7-
with a tearing of the brain stem itself, resulting in almos t instantan eous d eath. Bo th

wounds were fatal, allowing less than a minute for the victim to die as a result of the

gunsh ots.



      Erby Pritchard testified that he was friends with the victim. On September 27,

1994, the victim came to Pritchard’s home, driving his turquoise Mazda Protégé, and

they rode around the neighborhood for a while. After going to the victim’s home, the

two (2) left ag ain in the victim’s Protégé and drove over to the Fellow Homes area

in search of marijuana. Pritchard purchased a “dime sack” of marijuana for $10.00

and they rolled up a joint and then shared it. The victim stopped by Captain D’s and

purchased a fish sandwich, the n told Pritchard that he had to go take care of some

business and wo uld drop him off. Prior to leaving his home, the victim had received

a page from “Bernard.” W hen Pritchard asked if he could go along with the victim,

the victim indicated that he had some business with “Nard” that he was going to take

care of by him self. Later th at evenin g, Pritcha rd stated that he called the victim ’s

home and paged him to find out if he had returned and never received a response.



      Robe rta Wilkins lives at 1774 West Raines and was seventy-five (75) years

old at the time of the trial. She lived by herself in her home which is near the

intersection of Raines and Sewanee. On September 27, 1994, she called her son

and asked for him to c ome a nd take her to the grocery store. An hour later, she

heard a “rumbling” noise outside. Mrs. Wilkins got up and looked out her front door,

towards the corner of Raines and Sewanee.              She estimated the time to be

appro ximate ly 7:30 or 8 :00 p.m . She could see the top of a little car and saw one

(1) person moving around the car who looked to be a black male. Mrs. Wilkins saw

the figure walk across the road, come back to the car and get in and then drive up

                                           -8-
Sewanee Road. When her son arrived, they drove to Kroger and she told him what

had happened. On their way home, they stopped at the intersection of Raines and

Sewanee. Her son got out of the car because he had observed what first appeared

to be a “paper or box” on the side of the road. The police drove through the area

and her son asked them to stop because he thought he had found a body. Mrs.

Wilkins did not look in the area of where the body was found.



       W illie Wilkins, Mrs. Wilkins’ son, testified that on September 27, 1994, he took

his mother to the grocery store. On their way home, they stopped at the intersection

of Raines and Sewanee because he saw “something like some eyes shining.” When

Mr. Wilk ins go t a little closer, he observed a pack of dogs and then saw a body lying

there. Wilkins sat in his car until a police officer d rove b y and th en ad vised h im that

there wa s a bod y lying in the g rass.



       Bobby Jones, an officer with the Memphis Police Department, was on duty

on September 27, 1994. He was called to the intersection of Raines and Sewanee

at approxim ately 11:3 0 p.m. When he arrived, he saw a body lying on the north side

of the road. Jones could not at first identify if the body was that of a m ale or fe male

as there was a jacket around the head and the victim’s shirt was partially pulled up

to the rib cage. T here we re no sign s of life and th e body w as actua lly stiff. Jones

secured the scene w hile waiting for officers to arrive an d assist h im. He recalled that

the victim had two (2) rings on his left hand.



       C.B. Hatch el, ass igned to the c rimina l crime scen e bure au of th e Mem phis

Police Department, recounted his investigation of the scene on September 27 and

28, 1994 at the intersection at Raines and Sewanee. He observed the victim’s body

                                            -9-
in a grassy area to the northwest. He took photographs and drew sketches of the

body. A comb, some chap-stick, one (1) penny and a beeper were found scattered

about in the g rass n ear the victim’s shoulder. A powdered compact was found in the

victim’s right rear pocket. From the photographs he took, Hatche l identified a picture

of the victim in which his pants pockets are turned inside out. The photographs also

demonstrated that the victim’s coat was pulled up over his head.



      Sergeant Otis Stew art of the M emph is Police D epartm ent works in the

Homicide Bureau and was working there on September 28, 1994, when he was

assigned to this case. After talking with E rby Pritcha rd, Stewa rt began to investiga te

the Defendant as a possible witness. The police contacted the Defendant and asked

him to come in as a possible witness. The Defendant came to the police station on

October 10, 19 94, ac com panie d by an attorne y, Forre st Dur and.        D efend ant’s

Octob er 10, 19 49 statem ent was read to the jury.



      While continuing their investigation, the departm ent rece ived mo re informatio n

linking the Defen dant an d Rob ma W illiamson to the victim ’s death. The Defendant

was again requested to come to the police station on January 9, 1995, and he ag ain

showed up with his attorney Forrest Durand.          Because Defendant was now a

potential suspe ct, he was advised of his rights prior to his interview. Defendant read

and executed the waiver of rights form in his attorney’s presence. Sergean t Stewart

described that Attorney Du rand was “there partially through most of the oral

interview.” He read this second statement to the jury. Sergeant Stewart recalled

that Forrest Durand came back into the interview room just as Defendant was

readin g over his statem ent and preparin g to sign it. Durand witnessed the signing

of the statement, then the Defendant was arrested.

                                           -10-
      On January 11, 1995, the Defendant was a gain advised of his Miran da rights

and brought in for questioning.      Prior to the questioning, Defendant signed a

“telephone waiver” and called his fa ther, Darrell Anderson, at 1:35 p.m. At 1:40

p.m., the Defendant signed an “Advice of Rights” form which acknowledged that he

had been advised and had waive d his rights.            Sergeant Stewart noted that

Defen dant’s lawye r was n ot pres ent an d that D efend ant did not req uest h is

attorney’s presence at any time during the questioning. As described above, the

conten ts of such statem ent was read into e vidence for the jury.



      This wa s the clos e of the S tate’s cas e-in-chief.



      The Defe ndan t testified on his own b ehalf.          D efend ant de scribe d his

relation ship with the victim as “best friends,” seeing each other nearly every day of

the week.    Defendant denied killing the victim, stating that Robma Williamson

actua lly killed him. Defendant also denied any knowledge of luring the victim to the

car so that Robma Williamson could commit murder.               He indicated that any

statem ents which indica ted he did ha ve kno wledg e of W illiamso n’s intent had been

added into his statements without his knowledge.             He had been in jail for

appro ximate ly sixty-four (64) hours when the police came in to retrieve him for

questioning on January 11, 1995. Sergeant Stewart took him from his cell without

telling him anything and accompanied him to a conference room where another man

was waiting. Once inside the conference room, Stewart advised him that he was

there “to clear up a few matters in the statements that [he] gave in [his] previous

statem ents on the 9th of January.” Defendant again stated that he was not advised

of his rights prior to giving a statement on January 11, 1995. It was only after giving

his statement that Defendant recalled being given the “Advice of Rights” form which

                                          -11-
he signed. Prior to giving his statement, Defendant asked for his attorney on three

(3) sepa rate occa sions, bu t was de nied that rig ht each time.



       Defendant stated th at he paged the victim to ask him fo r a ride to a friend ’s

house. The victim agreed and, after g oing to D efenda nt’s friend’s h ome, Robma

W illiamson left with them . Defend ant reca lled that wh en the victim stoppe d at the

intersection of Raines and Sewanee, Williamson suddenly shot the victim in the

head. Defendant stated he had no ide a of W illiamso n’s inte ntions to kill the v ictim

and tha t William son later th reatene d to kill Defe ndant if he told anyo ne.



       On cross-e xamina tion, Defe ndant admitted to m any inc onsis tencie s within his

statements. He did admit to a prior conviction of theft on January 26, 1993 to which

he pled guilty.



                            I. S UPPRESSION OF STATEMENTS



       The party preva iling in th e trial co urt is entitled to the strongest legitimate view

of the evidence adduced at the suppression hearing as well as all reasonable and

legitimate inferences that may be drawn from that eviden ce. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). So long as the greater weight of the evidenc e supp orts

the trial court’s findings, those findings sh all be uph eld. Id. at 23. In other wo rds, a

trial court’s findings of fact in a suppression hearing will be upheld unless the

evidence prepon derates otherwis e. Id.         In evaluating the correctness of a trial

court’s ruling on a pretrial motion to suppress, the appellate court may consider the

proof adduced both at the suppression hearing and at trial. State v. Henning, 975

S.W .2d 290, 299 (Tenn. 199 8).

                                            -12-
       Following the suppression hearing, counsel for the Defendant conceded that

Defendant admitted that as to th e seco nd statem ent, it was a freely given statem ent.

The trial court then denied the rem ainder o f Defendant’s motion to suppress by

written order on November 8, 1995. The trial court found that the statement of

October 10, 1994, w as tak en wh en De fenda nt was not a s uspe ct nor w as he in

custody. The tr ial cou rt also h eld as to the January 1 1, 1995 statem ent, that “[t]here

is ample evide nce that the D efendant kn owingly, intelligently, and vo luntarily chose

not to exercise his rights on the occasion of his third statement. The police were not

obligated to con tact his attorney und er these circum stances.”



       Howeve r, the State has since conceded in both its brief and at or al argum ents

before this court that unde r the auth ority of Edwards v. Arizona, 451 U.S. 477, 484-

85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Minnick v. Mississippi, 498 U.S. 146,

111 S.Ct. 48 6, 112 L .Ed.2d 4 89 (199 0), the De fendan t was d eprived of his rig hts

while giving his third statem ent of Jan uary 11, 1 995, pu rsuant to the Fifth and

Fourteenth Amendments of the United States Constitution.



                         A. S TATEMENT OF O CTOBER 10, 1994



       The Defendant does not make an argument in his brief regarding the trial

court’s refusal to suppress the first statement of October 10, 1994. In Miranda v.

Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the United

States Supreme Court held that the Fifth and Fourteenth Amendments’ prohibition

against compelled self-incrimination requires police officers, before initiating

questioning, to advise the putative defendant of his rig ht to rem ain silen t and h is right

to counsel.    Specifically, Miranda requires police to inform the person being

                                            -13-
questioned that (a) he has the rig ht to rem ain silent; (b) any statement made may be

used as eviden ce aga inst him; (c ) he has the right to th e prese nce of a n attorney;

and (d) if he can not afford an a ttorney, on e will be ap pointed for him pr ior to

question ing, if he so d esires. 38 4 U.S. a t 444, 86 S .Ct. at 161 2.



      Howeve r, an officer’s obligation to administer Miranda warnings only attaches

“where there has b een s uch a restrictio n on a perso n’s free dom as to re nder h im ‘in

custo dy.’” Stans bury v. C alifornia , 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128

L.Ed.2d 293 (1994 ) (citing Oregon v. Mathiason, 429 U.S. 49 2, 495, 97 S.Ct. 711,

714, 50 L.Ed.2d 714 (1977)). “Custodia l interrogation” refers to “questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedo m of ac tion in any s ignificant w ay.” Miranda, 384 U.S. at 444,

86 S.Ct. at 16 12. In the case sub judice, Defe ndan t cam e to the police station of his

own free will after being requested by the police to answer some questions regarding

his persona l relationsh ip with the victim . Imme diately after g iving a state ment,

Defendant left the police station . Even if Defen dant d id con test this statem ent’s

admission into evidence, the law in T enne ssee is such that no Miranda warnin g is

required during the initial investigation by p olice where the witness is neither a prime

suspect nor in cus tody. State v. Underwood, 669 S.W.2d 700, 703-04 (Tenn. Crim.

App. 1984 ).



                          B. S TATEMENT OF J ANUARY 9, 1995



      Defendant argues his second statement of January 9, 1995, to the police was

erron eous ly admitte d into evidence by the trial court and should have been

suppressed. Defendant contends that counsel was not present d uring the entire

                                           -14-
course of questioning and, therefore, any statement taken was in clear violation of

Miranda v. Arizona, 384 U.S. at 436, 86 S.Ct. at 1602, and Edwards v. Arizona, 451

U.S. at 477, 101 S.Ct. at 1880. It is significant that following the hearing on the

motion to suppress, counsel for Defendant did not argue that the second statement

shou ld be suppre ssed as D efendant ha d “already said that was a freely given

statement on the record.” Therefore, the trial cou rt did no t mak e a sp ecific

conclusion on this second statem ent, althou gh it did m ake factu al findings. In

addition to arguing the issue has been waived by the Defendant, the State argues

that such statem ent wa s given freely an d volun tarily by the De fenda nt, in full

unders tanding of his rights.



      The voluntariness test under the Tennessee Constitution is more prote ctive

of individual rights th an the tes t under th e United States C onstitution . State v.

Stephenson, 878 S.W .2d 530 , 544 (T enn. 19 94). To effectively waive his rights,

defendant must have personal aw areness o f both the nature of the right and the

cons eque nces of aba ndon ing his rights. See Stephenson, 878 S.W.2d at 544-45.

Additio nally, his statements cannot be the result of intimidation, coercion or

decep tion. Id.



      First, we note that the Defendant has waived this issue by submitting to the

trial court that s uch state ment w as volun tary following the hea ring on the motion to

suppress. See Tenn. R. App. P. 36(a). Defendant himself stated that his statement

was freely and voluntarily given a nd was m ade in the pres ence of his attorn ey.

Testimony from his attorney demonstrated that he was present when the statement

was taken and signed the statement as a witness. In any event, pursuant to the

evidence presented documenting that Defendant was both presented with and

                                          -15-
waived his Miranda rights, we cannot conclude that the second statement given by

the Defendant should have been suppressed. The greater weight of the evidence

suppo rts the trial cour t’s findings th at Defe ndant w as read and then signed an

acknowledgment of rights form prior to giving his statement.            Furthermore,

Defendan t’s attorney was called when Defendant requested prior to the taking of that

same statement. Both the evidence at the hearing on the motion to suppress and

at trial demonstrate that the preponderance of the evidence does not fall in the

Defen dant’s favo r for supp ression. T his issue is without m erit.



                         C. S TATEMENT OF J ANUARY 11, 1995



      Finally, Defendant contends that his third statement made to the police on

January 11, 1995, was taken and admitted into evidence in violation of Edwards v.

Arizona, 451 U.S. at 477, 101 S.Ct. at 1880, and Minnick v. Mississippi, 498 U.S. at

146, 111 S.Ct. at 486. In Minnick v. Mississippi, our Suprem e Court held th at a fair

reading of Edwards v. Arizona and su bsequ ent case s dem onstrate that “we have

interpreted the rule to bar police-initiated interrogation unless the accused has

counsel with him at the time of questioning.” Minnick, 498 U.S. at 153, 111 S.Ct. at

491. When counsel is requested, interrogation must cease, and officials may not

reinitiate interroga tion withou t counsel present, whether or not the accused has

consulted with his atto rney. Id. The State conceded both in its brief and at oral

argum ent befo re this cou rt that Minnick contro ls this case and that Defendant was

deprived of his rights under the Fifth and Fourteenth Amendments of the United

States Constitution regarding the third statement on January 11, 1995. Wh ile there

is some contradiction in the testimony of various witnesses as to whether Defendant

requested couns el on Jan uary 11, 1 995, any in consiste ncies are irrelevant.

                                          -16-
Defendant invoked his right to counsel on January 9, 1995, and the police were,

therefore, prohibited from rein itiating their inter rogation of him w ithout counsel

presen t on Janu ary 11, 19 95. Minnick, 498 U.S . at 153.



       Although reversal of this conviction is required on the suppression issue, we

will also address the other issues raised by the Defendant. The State, conceding the

trial court’s error in denying the Defe ndan t’s mo tion to s uppre ss his third statement

to the police, filed a motion to reverse th e trial court’s judgm ent an d rem and th is

case for a new trial prior to filing its brie f with this cou rt. Our cou rt, however, denied

the motion finding tha t “this and other issues raised by the [Defendant] in his brief

shou ld receive thorough consideration on appeal, as they may resurface upon

remand .”



                       II. A DMISSION OF PRIOR THEFT CONVICTION



       Defendant argues that the trial court erred in allowing the State to ques tion

him regarding his prio r theft convic tion.        W hile the Sta te agree s that the th eft

conviction was not relevant to the murd er of the victim, it c onten ds it wa s certa inly

relevant to the issue of the De fendan t’s credibility.



       Tennessee Rule o f Evide nce 6 09(a) (3) allow s the S tate to im peach an

accused if prior no tice has been given and if the probative value of the conviction

outwe ighs its unfair prejudicial effect on substantive issues. Subdivision (a)(2) of

Rule 609 further states that the crime m ust either be a felon y or must have involved

“dishon esty or false sta temen t.” It has long b een es tablished that theft crimes

involve dishone sty.     See State v. Butler, 626 S.W .2d 6, 11 (Te nn. 1981).

                                            -17-
Furtherm ore, the o ffense of th eft is “highly pro bative” of cre dibility. State v. Baker,

956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (citations omitted). The State followed

procedural rules, giving notice to the Defendant of its intent to impeach him with the

theft conviction. Any prejudicial effect was outweighed by the probative value o f this

theft conviction upon the issue of D efenda nt’s credib ility. This issu e is withou t merit.



                            III. A DMISSION OF PHOTOGRAPHS



       Defendant contends that the trial court erred in admitting certain photographs

of the victim. Specifically, Defendant objects to the admission of Exhibits 19, 20, 21,

22 and 23. In determining the admissibility of photographs, the court must first

determine that the evidence is relevant to the issues at trial and then decide whether

the probative value of the evidence is substantially outweighed by the danger of

unfair prejudice . State v. Banks, 564 S.W .2d 947 , 949-51 (Tenn . 1978); Tenn. R.

Evid. 402, 40 3. The a dmiss ibility of photographs falls within the sound discretion of

the trial court, and this court will not interfere with the trial court’s exercise of

discretion absen t a clear ab use of tha t discretion . State v. Braden, 867 S.W.2d 750,

758 (T enn. C rim. App . 1993); Banks, 564 S.W.2d at 949.



       W e first observe that the State correctly po ints out with in its brief that counsel

for the Defendant specifically agreed with the admission of Exhibits 19 and 20.

Therefore, this issue is waived as to the admission of these photographs.               See

Tenn. R. App. P. 36(a); Teag ue v. State , 772 S.W.2d 915, 926 (Tenn. Crim. App.

1988); perm. to appeal denied, id. (Tenn. 1989); State v. Killebrew, 760 S.W.2d 228,

235 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn . 1988). H oweve r, as to

Exhibits 2 1, 22 an d 23, the D efenda nt did obje ct.

                                            -18-
      Exhib it 21 depicts the crime scene, showing that the victim’s pants pock et is

turned inside out as if he had be en robb ed. This certainly wa s proba tive as to the

State ’s proof to demonstrate that the Defendant killed an d robb ed the victim. E xhibit

22 is a closeup of the crime scene itself, only showing a portion of the victim’s body.

Howeve r, the closeup photograph does depict the pants pocket of the victim being

turned inside out an d that th e victim ’s shirt and jacket had been pulled over his head

as accord ing to testim ony of the officers on the scen e. Finally, E xhibit 23 is simp ly

a photogra ph from a different a ngle of the upper p ortion of the victim’s bo dy. It

shows the victim’s e xposed midriff, with his shirt and ja cket pulle d over his head.



      Exhibits 21 and 22 are probative to the State’s case-in-chief. Both depict the

crime scene and various personal items of the victim which were identified by h is

family. Also, the scene depicts the pants pocket being turned inside out to support

the State’s theory of robbery and the shirt and jacket pulled over his head which was

testified to by the Defendant in his second statement. The trial court w as co rrect in

ruling that the probative value of these photographs outweighs any potential for

unfair prejudice. The relevancy of Exh ibit 23 is questionable, in light of the fact that

other photographs depict the same scene from a different angle. H oweve r, we note

that none of these photographs depict a gruesome scene as the wounds to the

victim are covered by his shirt and jacket, and only blood is visible. Therefore, the re

was no prejudice in the adm ission of E xhibit 23. T his issue is without m erit.




                          IV. S UFFICIENCY OF THE EVIDENCE




                                           -19-
       Defendant argues that the evidence was insufficient to support a guilty verdict

for first degree murder. At the time of this offense, first degree murder was an

“intentio nal, premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-

13-202 (Repe aled 19 95). A de liberate act is “one pe rformed with a coo l purpose .”

Tenn. Code A nn. § 3 9-13- 201(b )(1) (R epea led 19 95). A prem editate d act is “one

done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-

201(b)(2) (Re pealed 199 5).



       When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

prosecution, any rationa l trier of fac t could have found the essential elements of the

crime beyond a reason able do ubt. Jack son v. V irginia, 443 U.S. 307, 319 (19 79).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Because a verdict of guilt removes the presumption of innocence and rep laces it with

a presum ption of gu ilt, the accuse d has the bu rden in this court of illustrating why the

evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.

Tug gle, 639 S.W.2d 913, 914 (Tenn. 19 82); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).



       Questions concerning the credibility of the witnesses, the weight and valu e to

be given the evidence, as well as all factual issues raised by the evide nce, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt

reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t




                                            -20-
approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.



         The victim was shot twice in the hea d, with medical evidence demonstrating

that either sho t was fatal. In h is statem ents to the police of Janua ry 9 and Janu ary

11, 1995, the D efend ant ad mitted luring th e victim to pick h im up and th en driv ing

him to a remote a rea so that the victim could be killed. In his statem ent of Janua ry

11, 1995, the Defendant admitted to shooting and killing the victim, both with

premeditation and deliberation. The Defendant stated that he “was under a lot of

stress and [he felt] that all [he had] done for him, [the victim] should have owed

[Defen dant] some thing.” Wh en as ked if h e pag ed the victim o n September 27, 1994,

at appro ximate ly 5:15 p.m ., with the knowledge that the victim would be lured to the

Boxtown area and had the intention of killing him, the Defendant responded

affirmatively. In the light most favorable to the State, this evidence was sufficient

where by a rational trier of fact could have concluded beyond a reasonable doubt

that Defendant intentionally killed the victim with both premeditation and deliberation.



         W e note th at all evidence admitted at the trial, even if admitted errone ously,

can be considered when addressing a defendant’s challenge to the sufficiency of the

evidence to sustain the conv iction. See Lockhart v. Nelson, 488 U.S. 33, 109 S.C t.

285, 102 L.E d.2d 26 5 (1988 ); State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn.

1981).




         V. S UFFICIENCY OF EVIDENCE TO SUPPORT AGGRAVATING CIRCUMSTANCE




                                            -21-
      Defendant argues that the evidence was insufficient to support the

aggravating circumstance of murder during the perpetration of a robbery. In order

to impose a sentence o f life without parole, the jury has to find that the State proved

beyond a reasonable doubt one of the aggravating factors found in Tennessee Code

Annotated section 3 9-13-20 4(i). In the Defendant’s second statement of January 9,

1995, he admitted that the victim was robbed. The victim’s mother testified that she

had given the victim $10 .00 earlier th at day. The photographs depic ted the victim’s

personal items s trewn aro und his b ody and his pants pocke t turned ins ide out.

Based upon this evidence and Defendant’s own admission, the jury reaso nably

determined that the murder was committed while the Defendant had a substantial

role in com mitting a ro bbery. T his issue is without m erit.



                    VI. ADMISSION OF EVIDENCE OF OTHER CRIMES



      Defendant contends that the State was erroneously allowed to introduce proof

of other crimes by virtue of his statements to the police.        Rule 404(b) of the

Tennessee Rules of Evidence states that “[e]vidence of other crimes, wrongs, or

acts is not admiss ible to prove the ch aracte r of a pe rson in order to show action in

conform ity with the chara cter trait .   It may, however, be admissible for other

purpos es.” The “other crimes” to which Defendant is referring were includ ed in h is

statem ents to the police in which Defen dant indica ted the re was a warr ant for h is

arrest for cashing one of the victim’s checks and that he had been involved in a

robbery . Specifically, the statement referring to cashing the victim’s check was as

follows:

      Question:     Wh y would Mr. Du rand com e with you today?




                                           -22-
      Answer:      My brother’s request. He had found out that I had
      supp osed ly cashed one of Gregory’s checks, and they a [sic] warrant
      for my arrest for the check.

      Question:    Have you cashed a check belonging to Gregory Harris?

      Answer:      No, sir.

      Question: Is there any other reason that you b rought a n attorne y with
      you today?

      Answer:       My brother recommended me to the attorney. My brother
      contacted the attorney about the check. Then I told him about the talk
      in the street that I had killed G regory.



The other two statements to which Defendant refers include his admission that he

paged the victim to ask for a ride to so meone ’s home to p ick up mon ey from a

robbery .



      For each o bjection th e Defe ndant ra ised, the trial court complied with the

requirem ents of Rule 404(b). The court held a hearing outside the presence of the

jury in which it determined the material issues and then determined that such

evidence need not be excluded according to the provisions of Rule 404(b)(1),(2) and

(3). Rule 404(b) allows such evidence of “other crimes” to be admitted when it is

relevant to a litigated iss ue, such as identity, inte nt, or rebu ttal of accident or

mistake, and its probative value is not outweighed by the danger of unfair prejudice.

See State v. Parton, 694 S.W .2d 299 , 303 (T enn. 19 85); State v. Hooten, 735

S.W .2d 823, 824 (Tenn. Crim . App. 1987 ).



      Although any statement the Defendant made regarding a warrant for his arrest

for cash ing one of the victim’s check s was not releva nt according to R ule 404(b),

neither was it unfairly prejudicial. There was never any corroborating evidence of


                                         -23-
this warrant, and the Defendant himself immediately denied cashing the victim ’s

check. Pursuant to Rule 103(a) of the Tennessee Rules of Evidence, the admission

or exclus ion of e videnc e is no t a bas is for error unless the ruling affects a substantial

right of the accused. We find that even if the trial court did err in refusing to redact

the portion of the Defendant’s statement referring to this warrant, no substantial right

of the Defendant was affected thereby.              In light of the convincing evidence of

Defe ndan t’s guilt, an y error in the ad miss ion of this eviden ce was harmle ss. See

State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981); Tenn. R. Ap p. P.

36(b).



         The remaining portions of Defendant’s statement to which Defen dant ob jects

as admitted in error we re, in fact, ad missible as releva nt to the issue of intent. The

Defen dant state d that, “I had him [victim] come to take me to pick up some money

from a robbe ry.” W hen a sked if he be eped the victim know ing tha t he wo uld lure him

to a rem ote are a with th e inten tion of k illing him, the Defenda nt adm itted tha t this

was his intent. Clearly, this evidence went directly to the State’s theory that the

Defen dant, with premeditation and deliberation, paged the victim to pick him up and

then directed him to drive to a remote area where he shot and killed the victim. T his

issue is w ithout me rit.




                                        CONCLUSION




         Defe ndan t’s third statem ent on Ja nuary 11 , 1995, w as admitted in error at

trial. The statement of January 11, 1995 is suppressed and is inadmissible at

                                             -24-
Defenda nt’s new trial.     Defendant’s conviction is reversed, and this case is

reman ded to the trial court for a n ew trial.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




                                           -25-
