         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 17, 2002

              STATE OF TENNESSEE v. JAMES L. CARRETHERS

                    Appeal from the Criminal Court for Davidson County
                      No. 2000-A-495    J. Randall Wyatt, Jr., Judge



                    No. M2001-01503-CCA-R3-CD - Filed October 2, 2002


James L. Carrethers appeals his second-degree murder conviction. He was found guilty of that
offense by a Davidson County Jury. He is presently serving an eighteen-year sentence in the
Department of Correction for the crime. In this direct appeal, he claims that the evidence does not
sufficiently support the conviction and that the lower court erred in denying a motion to suppress his
inculpatory, pretrial statements. Because we are unconvinced of error in either respect, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and ALAN E. GLENN, JJ., joined.

Monte D. Watkins, Nashville, Tennessee, for the Appellant, James L. Carrethers.

Paul G. Summers, Attorney General & Reporter; Renee W. Tucker, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dan Hamm, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

               In the light most favorable to the state, the evidence at trial demonstrated that on the
evening of September 2, 1999, the defendant was in the vicinity of the Trimble Street residence of
the victim, Sarah Owens. Apparently, the defendant was drinking gin and using crack cocaine.

                According to a pretrial statement given by the defendant, he saw his cousin, Ronald
“Bay Bay” Woodard, and another individual, “Champ.” Mr. Woodard told the defendant that his
relationship with his live-in girlfriend, Sarah Owens, had become strained because of Mr. Woodard’s
extracurricular relationship with Lisa Sanders. Mr. Woodard told the defendant that Ms. Owens was
threatening to inform Mr. Woodard’s parole officer about his drug-dealing activity. Mr. Woodard
told Johnny “Little Johnny” Maupin to kill the victim. Apparently, Little Johnny was supposed to
shoot the victim, although the defendant was to assist him in committing the crime and would
receive drugs as compensation for his involvement.

                The defendant admitted in a pretrial statement that he and Little Johnny went to the
residence where the victim and Mr. Woodard lived. The defendant kicked the door in, and Little
Johnny shot the victim. What transpired during the course of the crime is by no means clear, but the
victim ended up lying on the lawn, where she was discovered by Mr. Woodard and Ms. Sanders,
after they heard gunshots.

                John Thomas Allen, Sr., who lived near the residence of the victim and Mr. Woodard,
knew the defendant, and shortly before hearing shots in the neighborhood, Mr. Allen asked the
defendant and a companion to leave Allen’s home. Mr. Allen went to bed, and before falling asleep,
he heard gunshots. He fell asleep, and a short time later awakened to find the defendant inside his
home. The defendant was in Mr. Allen’s bathroom washing something red that appeared to be blood
from a white t-shirt. Mr. Allen overheard the defendant ask Mr. Allen’s roommate for another shirt.
The defendant left the house but came back the next morning to retrieve the shirt he had washed in
Mr. Allen’s bathroom.

              The victim sustained gunshot wounds to the left side of the neck and the left side of
the abdominal region. Surgery to save her life was unsuccessful.

               The victim’s home was ransacked, and there was evidence that Mr. Woodard had a
large quantity of drugs stored there. However, the drugs were not taken, and the authorities
recovered the drugs during the course of gathering evidence and processing the crime scene.

              Around the break of dawn on September 3, 1999, Randall Bowen, a homeless man,
saw the defendant searching for something in the alley behind the victim’s home. The defendant told
Mr. Bowen that he was looking for a puppy and asked Bowen to help. Mr. Bowen declined and
walked up the street, but a few minutes later he returned and assisted the defendant in his search
when the defendant offered Bowen drugs to help him find a blue bandanna. They found the
bandanna in the alley half a block from the victim’s house. It was wrapped around a handgun.

                 The day after the homicide, the defendant talked to Chevelle Jones, who expressed
an interest in obtaining a weapon for protection in the wake of the victim’s shooting. The defendant
said he could get a gun for Mr. Jones. Later, the defendant came to Mr. Jones’ home with a .38
caliber handgun, which he sold to Jones for $80 in the presence of Juanita Rucker, Jones’s live-in
girlfriend.

                Shortly thereafter, Mr. Jones saw some police officers taking the defendant into
custody. He spoke with them, and thereafter he turned the gun over to them. This weapon was later
identified by a weapons expert as being the weapon which fired a projectile that was recovered from
the victim’s body.



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              A shoe print on the door of the victim’s house was compared with shoes that the
defendant was wearing at a later time, and the print was later determined to be consistent with those
shoes.

                The defendant was first questioned by Metro Police Officers on the afternoon of
September 3, 1999. He was released, but he was questioned a second time that evening. The
defendant admitted some involvement in the victim’s homicide. He claimed that he had been present
when the victim was shot, and he identified his cousin, Ronald Woodard, as the shooter. As a result
of this questioning, the defendant was placed under arrest.

                The defendant was next questioned on September 9. At that time, he said that the
shooter was Johnny Maupin, not Ronald Woodard. He admitted that he knew that Maupin was
going to harm the victim, but he did not know whether she was to be beaten or killed. The defendant
admitted that he kicked the victim’s door open and that he was to receive drugs for his assistance in
the crime. He claimed, however, that he fled after kicking the door, and he was in John Thomas
Allen’s living room by the time gunshots were fired. The defendant admitted selling the murder
weapon to Chevelle Jones, and he claimed that he got it from Ronald Woodard.

                By the time of trial, the defendant had disavowed his culpability for the crime,
notwithstanding his pretrial admissions. He maintained at trial that he was “blocks and blocks away”
at the time of the crime, and he never went to the victim’s house that evening. He claimed that at
the time of the crime, he was standing in a parking lot drinking. He admitted that he was at Mr.
Allen’s house earlier in the evening, but he denied having a bloody t-shirt there during the evening.
The defendant claimed that shortly before one o’clock in the morning, Mr. Woodard approached him
and gave him a weapon wrapped in a blue bandana, which the defendant placed in some bushes.
Within a couple of hours, Mr. Woodard approached the defendant in the presence of a police officer
and demanded to know where the gun was. After the two scuffled, the defendant was taken to the
police station and questioned. Apparently, the defendant believed that Mr. Woodard was trying to
“set him up” as the perpetrator of the crime.

                The defendant maintained in his trial testimony he was coerced into giving his pretrial
statement in which he admitted being present at the time of the crime and in which he identified
Johnny Maupin as the killer because he was told that he would be released if he would give a
statement. He claimed that he was misled into believing that he would be treated as a witness, rather
than a perpetrator. Further, he claimed that he identified Maupin as the triggerman because he had
heard that Maupin recently had been killed, and he was not enthusiastic about maintaining his earlier
identification of Mr. Woodard as the shooter. The defendant theorized that the promises made to
him by the detectives who took his statement were either edited out of the tape that was played for
the jury or never recorded.

              The defendant asserted that the true version of events was that he was not present
when the crime took place and had nothing to do with it. After the crime had transpired, Mr.
Woodard told the defendant in the presence of Lisa Sanders that Woodard and the victim had an


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altercation which culminated in Woodard accidentally shooting the victim. The defendant admitting
selling the gun to Chevelle Jones. He claimed that the shoe print on the door of the victim’s home
did not come from shoes that he owned.

               The jury rejected the defendant’s disavowal of involvement in the crime. On the
charge of premeditated murder, it returned a verdict of guilty to the lesser- included offense of
second-degree murder. The defendant was sentenced to serve an eighteen-year incarcerative term.
After the lower court denied his motion for new trial, he appealed.

                                                   I

                We first consider the defendant’s challenge to the sufficiency of the evidence. When
an accused challenges the sufficiency of the convicting evidence, this court must review the record
to determine if the evidence adduced at trial is sufficient “to support the finding by the trier of fact
of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of
guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper, 29 S.W.2d 1, 8 (Tenn. 2000).

                In determining the sufficiency of the convicting evidence, this court does not re-weigh
or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor
may this court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this
court is required to afford the state the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

                 Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact, not this court. Id. at 835. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), our supreme
court said, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.”

                 Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this court of illustrating why
the evidence is insufficient to support the verdicts returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilty due to the sufficiency
of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a
rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Id.

              A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Before an accused
may be convicted of a criminal offense based upon circumstantial evidence, the facts and the


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circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save
the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 225 Tenn. 478,
482, 470 S.W.2d 610, 612 (1971). “A web of guilt must be woven around the defendant from which
he cannot escape and from which facts and circumstances the jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 470 S.W.2d at 613.

                The crime of which the defendant is convicted is second-degree murder. As pertinent
here, that crime is “[a] knowing killing of another . . . .” Tenn. Code Ann. § 39-13-210(a)(1) (1997).
As likewise pertinent here, an individual may be held criminally responsible for the conduct of
another if, “[a]cting with the intent to promote or assist the commission of the offense, or to benefit
in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another
person to commit the offense . . . .” Tenn. Code Ann. § 39-11-402(2) (1997).

                The defendant claims that the case against him is entirely circumstantial and that there
is no evidence of his guilt of any offense greater than facilitation of second-degree murder.
Facilitation occurs when an individual, “knowing that another intends to commit a specific felony,
but without the intent required for criminal responsibility under § 39-11-402(2), . . . knowingly
furnishes substantial assistance to the commission of the felony.” Id. § 39-11-403(a) (1997). In
support of his argument, the defendant recites that he did not know the specific crime that was to be
committed, that the proof shows that the extent of his involvement was kicking in the door, and that
he did not have the intent to promote, assist or benefit from the offense.

               Upon review of the evidence in the light most favorable to the state, we cannot agree
with the defendant’s minimalist view of his culpability. At least one of the defendant’s statements
was ambiguous whether he knew ahead of time that the victim was to be killed;1 the jury had the
opportunity to evaluate those statements and accredit the one it found more truthful. The defendant
admitted that he knew Mr. Maupin had been instructed by Mr. Woodard to “get that b---- or do that
b----, or something like that.” The defendant also admitted that Mr. Maupin told him that Mr.
Woodard “wanted me to go over there and take care of this s---.” Moreover, the jury had the
opportunity to draw inferences from the evidence presented that the defendant was not completely
forthcoming about his involvement in the crime. There was evidence that the defendant’s
involvement was more extensive than portrayed in his pretrial statements and trial testimony; he was
seen washing a substance appearing to be blood from a t-shirt at a nearby home shortly after the
victim was shot. Pretrial he admitted that he kicked in the door, but at trial he denied it. He denied
that the shoe print on the door was his, but there was evidence that the print matched the soles of
shoes he was wearing when he was questioned after the crime. A homeless man testified that he and
the defendant searched for and located a weapon, and the defendant denied this took place. The
homeless man identified the weapon as being wrapped in a blue bandana, which is consistent with
other evidence about the murder weapon.



        1
          W hen asked in the September 9 interview the ide ntity of the person who shot the victim, the defendant
respo nded, “Little Johnny was sup posed to. Little Johnny was ordered to do it.”

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                This case was one in which the credibility of witnesses was crucial. If the defendant’s
credibility on the issue of the extent of his involvement in the crime is rejected, there is ample
evidence from which the jury could infer that the defendant knew that he was going with Mr. Maupin
to the victim’s home for the purpose of killing her. See Tenn. Code Ann. § 39-11-302(b) (1997) (“A
person acts knowingly with respect to a result of the person’s conduct when the person is aware that
the conduct is reasonably certain to cause the result.”). The defendant substantially assisted Mr.
Maupin by kicking open the door to the victim’s home and was further involved in the shooting as
evidenced by the bloody t-shirt. The defendant was compensated with drugs for his involvement.
In other words, there is sufficient evidence to sustain a conviction of second-degree murder via a
criminal responsibility theory.

                                                     II

               The defendant’s remaining issue concerns the trial court’s denial of his motion to
suppress his September 9 pretrial statement. He argued below that his Fifth Amendment privilege
not to incriminate himself and his Sixth Amendment right to counsel were violated. On appeal, he
pursues only the Fifth Amendment claim, and we will therefore limit our discussion to that claim.

               The defendant claims that he was promised that he would be released if he would
make a statement, and he made his inculpatory statement because he believed doing so would afford
him leniency. Further, the defendant claims that the detectives who interviewed him were
overbearing when they told him that they had his footprint from the crime scene, and no physical
evidence of this footprint was ultimately introduced at trial. He complains that his will to resist was
overborne by the behavior of state actors.

                 At a suppression hearing, the trial court is the trier of fact, and its factual findings are
binding upon this court unless the evidence contained in the record preponderates against them. State
v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000);
State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); State v. Aucoin, 756 S.W.2d 705, 710 (Tenn. Crim.
App. 1988). Under this standard, matters regarding the credibility of witnesses, the weight and value
to be afforded the evidence, and resolution of conflicts in the evidence are matters entrusted to the
trial court as the trier of fact. Odom, 928 S.W.2d at 23. On appeal, the defendant has the burden of
showing that the evidence preponderates against the trial court’s determination. State v. Buck, 670
S.W.2d 600, 610 (Tenn. 1984). However, the application of the law to the facts is subject to de novo
review on appeal. Daniel, 12 S.W.3d at 423.

                 When a defendant claims that his statement was compelled by coercive police tactics
via promises of leniency, the pertinent inquiry is not merely whether the statement was made only
as a result of such promise. State v. Kelly, 603 S.W.2d 726, 729 (Tenn. 1980). Rather, it is “whether
the accused was so gripped by the hope of leniency that he did not or could not freely and rationally
choose among the available courses of action.” Id. (quoting Hunter v. Swenson, 372 F. Supp. 287,
300-01 (W.D. Mo. 1974)); see State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996).



                                                    -6-
               The record reflects that on September 9, the defendant signed a rights waiver form,
after which the defendant gave an inculpatory statement. Detective Roy Dunaway testified that the
defendant was never promised that he would be released if he would make a statement. However,
the defendant was told that if he cooperated with the authorities, it would help him.

                  The defendant testified that Detective Dunaway told him he would release the
defendant if the defendant would give a statement. The defendant claimed that he wanted to go
home, so he made up a story to satisfy the detectives. The videotape of the statement was shown at
trial, and it clearly reflects that the defendant was not initially forthcoming about the crime, and the
detectives who questioned him had to confront him with inconsistencies in his version of events and
other evidence in order to obtain information from him. However, noticeably absent are any
promises as the defendant alleges were made.2 Furthermore, there is nothing on the tape to suggest
that the defendant’s free will to decline to make a statement was overcome by the detectives.

                The lower court found that the defendant did not carry his burden of demonstrating
that his will was overborne, that he was coerced, or that any unrealistic promises were made. Thus,
to the extent that the defendant claimed that promises were made to him which were not recorded
on tape or edited from the tape, the judge found his testimony incredible.3 On appellate review, we
cannot say that the evidence preponderates against the lower court’s determination. Thus, the lower
court properly denied the motion to suppress.

                  Therefore, we affirm the defendant’s second-degree murder conviction.


         2
           In fact, the evidence suggests the contrary. Abo ut one-half way thro ugh the one hour and twenty minute
interview , after the defendant admitted some minim al involveme nt in the crim e, De tective B rad P utnam said
         [Y]ou’ve alread y dug yo u a hole, in a way, as far as admitting to your particip ation, although it wasn’t
         that much. Kicking that door in still makes you just as guilty as the triggerman. It’s just that what
         norm ally happens is that the triggerman is going to get more jail time than the other guy, in most cases.
         ...
         [Y]ou’re still going to go dow n for murder. You might not get near as much time, but the thing is you
         still participated by going over there.
         ...
         Yo u need to go a head and tell us the truth, the whole story.

The detectives continued to tell the defendant that he had inculpated h imself and implo red him to be com pletely
forthcoming with them . The defendant continued to talk to the detectives for an extended p eriod of time after these
statements were m ade by the d etectives.

Near the end of the interview, the defendant inquired about what type of protection he will receive from other jail
inmates. We interpret these inquiries as indicating that the defendant did not have a n expectation that he was ab out to
be released at the conclusion of the interview.

         3
          The defendant does not expound in his brief on the significance he places on the lack of presentation at trial
of physical evidence of the footprint on the door. Although he is correct that the door bearing the footprint itself or a
photograph of it was no t introduced , there was testimo ny abo ut the footprint and its consisten cy with the defendant’s
shoes.

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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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