                                                                                        03/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 4, 2018

               STATE OF TENNESSEE v. JASON LEVI BUTTS

                  Appeal from the Circuit Court for Tipton County
                      No. 8700     Joe H. Walker, III, Judge
                     ___________________________________

                           No. W2017-00584-CCA-R3-CD
                       ___________________________________


The Defendant, Jason Levi Butts, fired a shot from a rifle toward a home, and the bullet
penetrated the wall and hit the sleeping victim in the hip. The trial court ruled that all
three statements which the Defendant made to law enforcement during the investigation
of the shooting were admissible. The Defendant was convicted after a bench trial of
reckless endangerment, a Class C felony, and reckless aggravated assault, a Class D
felony, and the trial court sentenced him to concurrent sentences of three and two years,
respectively. The Defendant appeals, asserting that the trial court erred in denying his
motion to suppress his statements and that the evidence is insufficient to support the
verdicts. We conclude that the trial court erred in admitting the Defendant’s initial
statement to police, which he made without being advised of his rights and after law
enforcement twice told him he could not leave the police station. However, we conclude
that the error was harmless beyond a reasonable doubt, and we affirm the convictions.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.

Bryan R. Huffman, Covington, Tennessee, for the appellant, Jason Levi Butts.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Walter Freeland, Jr.
(at motion hearings and sentencing) and Sean Hord (at trial), Assistant District Attorneys
General, for the appellee, State of Tennessee.
                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Defendant was involved in a quarrel with Mr. Myron Robinson, and on April
23, 2016, he drove with some companions to a mobile home where they expected to find
Mr. Robinson. The Defendant observed Mr. Robinson’s vehicle and shot his rifle toward
the home, where the victim, Ms. Dana Rapp, was asleep in bed next her nine-year-old
daughter. Numerous other individuals, including Mr. Robinson and several minors, were
in the home. Ms. Rapp suffered a gunshot wound to her hip. The Defendant gave police
a statement two days later at the police station, acknowledging that he was present at the
shooting but asserting that the shooter was a passenger in his vehicle. The Defendant was
arrested at his mother’s home two days after his initial statement. Law enforcement
officers contacted the Defendant’s mother by telephone for permission to search her
home, and the Defendant spoke to her within earshot of law enforcement, acknowledging
that he had shot a woman. The Defendant then gave a third statement after his arrest, in
which he admitted that he drove to the house and fired a random shot. He expressed
remorse for his actions. Prior to trial, the Defendant moved to suppress all three
statements.

                                  Motion to Suppress

       Detective Jay Rodriguez of the Tipton County Sheriff’s Office testified that he
was called to investigate the crime and that he developed the Defendant as a suspect
approximately two days after the shooting. On April 25, 2016, at around 2:30 p.m., the
Defendant drove himself to the police station for an interview. The Defendant indicated
during the interview that he believed his presence was related to a drug seizure that had
occurred at a trailer which he owned and rented to tenants. The interview was video
recorded and took place in an area of the building that required a code for either entry or
departure.

        Detective Rodriguez testified that the Defendant was not under arrest and was free
to go at any time. He was not informed of his rights pursuant to Miranda v. Arizona, 384
U.S. 436, 479 (1966). The Defendant testified that he did not believe he was under arrest
but also did not feel “free to go,” in particular because he could not access his keys. He
clarified, however, that “nobody had them. It was in an office.” The Defendant and
Detective Rodriguez agreed that there were two to three officers who were “in and out”
of the room during the interview.

      The video of the interview, which contains frequent lapses in audio, was attached
as an exhibit. The Defendant was interviewed in a small room with a circular table.
                                           -2-
While one officer was sitting closer to the door than the Defendant, the Defendant had a
direct and unobstructed route to the door. The interview began conversationally, with the
Defendant describing how he suffered from a sinus infection. The parties discussed the
seizure of drugs from the tenants at the trailer owned by the Defendant.

       Detective Rodriguez began the interview by asking the Defendant about an injury
over his eye, and the Defendant stated that he fell onto a nail while moving a box of
books. Detective Rodriguez then told the Defendant that he was not under arrest and that
he could go at any time he wanted. Demonstrating that the door to the room remained
unlocked, Detective Rodriguez stated, “There’s the door, right?” Detective Rodriguez
discussed the drug seizure at the trailer briefly, then began to ask the Defendant regarding
his whereabouts on the night of the shooting.

       The Defendant gave a statement essentially asserting that he had been ill on the
day of the shooting and had remained at home except for a trip to the doctor and the
pharmacy. He initially denied knowing anyone named Myron but then acknowledged
that he knew Mr. Robinson and that he had heard one of the tenants of his trailer
discussing Mr. Robinson earlier in the week.

        Detective Rodriguez asked the Defendant if law enforcement could examine his
telephone. The Defendant deflected the question, stating that it was in his vehicle.
Asked again a few minutes later, he stated it would be an invasion of his privacy. After
further discussion of the drug seizure at the Defendant’s trailer, Detective Rodriguez
asked if the Defendant’s telephone would confirm that he had been at his residence
during the time of the shooting. At that point, the Defendant asserted that he had
misplaced his telephone on the day of the shooting and that he only regained possession
later that weekend.

        Detective Rodriguez absented himself from the room briefly. While he was gone,
the Defendant asked Detective Brandon Shelton, “Am I free to go?” Detective Shelton
responded, “Let me ask him real quick.” After stepping out of the room, Detective
Shelton informed the Defendant, “Hey, man, we got a couple more questions.” Detective
Shelton proceeded to offer the Defendant water or a “tic tac.” The Defendant stated that
he just wanted to go home and sleep.

       When Detective Rodriguez returned to the room, he accused the Defendant of
lying. He told the Defendant, “It’s fixing to be bad on you.” The Defendant responded,
“Okay. Well, then, lawyer.” Detective Rodriguez did not ask the Defendant further
questions but told him, “Let me walk out to your car. I’m going to take your phone. I’m
seizing your phone.” The Defendant objected, and Detective Rodriguez responded that
he would get a warrant. All present left the room for three minutes.
                                           -3-
       The Defendant and officers returned to the room and the following exchange
occurred:

       Defendant: Am I under arrest?

       Detective Rodriguez: No, we’re fixing to get a sear— You can’t leave.
              We’re fixing to get a search warrant on the truck.

       Defendant: How can I not leave? I’m not under arrest?

       Detective Rodriguez: You can go walk all you want to, bubba.

       The room was again abandoned, but the audio reveals that Detective Rodriguez
was nearby describing the evidence that could support a search warrant. He noted that
the Defendant was “out there now. He’s trying to leave. He won’t let us get his phone.”
Detective Rodriguez described the Defendant as “out there somewhere with” Detective
Shelton. Detective Sherry Wassel can then be heard recounting that the Defendant was
searching for his telephone in the car with Detective Shelton watching, that she offered to
help, and that she located the telephone, which she felt the Defendant was trying to hide.

        Testifying at the motion to suppress, the Defendant stated that he went out to his
car, which was unlocked, to look for the telephone. He testified that Detective Wassel
escorted him outside and that she continually accused him of lying and urged him to tell
the truth. She asked him what happened, reminding him he was not being recorded while
they were outside. Detective Shelton likewise reminded him he was not being recorded
and urged him to tell the truth. The Defendant testified he was accompanied by officers
the entire time he was out of the building.

        When the Defendant returned to the room, he acknowledged that on the night of
the crimes, he went to confront Mr. Robinson, who had stolen six hundred dollars from
him in the past. The Defendant still denied involvement with any shooting. After further
encouragement to confess, the Defendant stated that “it was supposed to be a warning
shot, and I didn’t even fire it.” He eventually described driving from his rented trailer to
his home with two companions, retrieving a rifle and one round of ammunition, and
driving to two different houses looking for Mr. Robinson. At the second house, the
Defendant saw Mr. Robinson’s vehicle, turned around, and stopped by the driveway.
According to the Defendant’s statement, a lanky African-American man who “dresses
like a thug,” had the gun and instead of firing over the house, shot into the house. This
same man told the Defendant he had disposed of the bullet casing.



                                           -4-
      The Defendant’s statement was reduced to writing and signed by the Defendant.
Only the first page of the statement, in which the Defendant asserted he had been at his
home the entire time, is contained in the appellate record. After the Defendant gave the
statement, the following exchange took place:

       Defendant: Am I going to jail?

       Detective Wassel [incredulous]: Today? Or in general?

       Defendant: In general.

       Detective Wassel: You may…. You’re not going today.

       The Defendant asked if he could get his telephone back but was told it had not
been examined because it was out of battery. He was asked to ride with officers to his
home to retrieve the weapon while his vehicle was processed. The Defendant observed
an officer in the hallway and told Detective Wassel, “That’s a corrections officer…So
I’m probably about to get back there.”1 After giving his permission for police to process
his vehicle, the Defendant noted that he still did not have his keys. Detective Wassel
retrieved the Defendant’s keys and gave him the house key necessary for him to return
home and to retrieve the firearm in the company of police officers. She kept the
Defendant’s car key in order to process the vehicle.

       At the hearing, Detective Rodriguez testified that he did not have the keys to the
Defendant’s vehicle and denied telling the Defendant that “he could leave, but he had to
walk.” Detective Rodriguez at first acknowledged telling the Defendant that law
enforcement would need to take his vehicle because it was part of the investigation, but
he later stated, “I don’t even know if I told him I was going to seize his vehicle[;] I told
him I was going to seize his phone.” The Defendant, testifying regarding the interview,
could not recall Detective Rodriguez making any statement regarding whether he could
leave or whether he would have to walk.

      The Defendant was permitted to depart the police station later that day. He did not
seek out a lawyer between April 25th and April 27th.

      On April 27, 2016, Detective Rodriguez arrived at the Defendant’s mother’s
home, initially looking for one of the men that the Defendant had named as his
companion on the night of the shooting. When the Defendant answered the door, he was

       1
           While this statement is slightly garbled on the recording, it appears that the Defendant was
stating that he expected to be taken to jail.
                                                 -5-
arrested. He was not given warnings pursuant to Miranda. When asked if he lived at the
house, the Defendant stated it was his mother’s home. Detective Rodriguez called the
Defendant’s mother to ask consent to search the house based on an emanating odor of
marijuana. The Defendant’s mother asked to speak to the Defendant, and Detective
Rodriguez put her on speakerphone. Detective Rodriguez testified that the Defendant
told his mother that “he had messed up,” and that “he shot a woman.” According to
Detective Rodriguez, a deputy standing nearby recorded the conversation on his body
microphone, but no recording was introduced into evidence.

        Back at the police station, the Defendant was informed of his Miranda rights. He
chose to speak to police, and a second statement was reduced to writing and signed by the
Defendant. In it, the Defendant acknowledged that he was with a group of people who
were under the influence of drugs and alcohol and that they went looking for Mr.
Robinson, intending to rob him in retribution for a robbery Mr. Robinson had committed
earlier. The Defendant stated that he stopped by his home to get the rifle and that the
group drove to two houses looking for Mr. Robinson. When they saw Mr. Robinson’s
vehicle at the second house, the Defendant shot out of the truck window. He stated, “I
didn’t aim for anything in particular[;] I just shot.” He expressed remorse for having
injured the victim, wished her “a speedy and well recovery,” and offered his apology to
her.

       The Defendant confirmed that on April 27th, Detective Rodriguez was looking for
another individual at the Defendant’s mother’s home. Detective Rodriguez put the
Defendant in handcuffs and searched the house. The Defendant spoke to his mother
while three deputies were nearby. He testified that he made the second written statement
only to clarify the first statement.

       The trial court denied the motion to suppress. With respect to the April 25th
interview, the court found that “the defendant was not in custody, and in fact left after the
interview. There was no need for Miranda warnings.” The trial court then concluded
that the word “lawyer” was not an unambiguous request for an attorney. The trial court
found that the Defendant’s statement to his mother was not the result of police
interrogation. Finally, the trial court found that the Defendant was properly advised of
his rights prior to making the third statement and that it was given freely and voluntarily.

                                           Trial

       The Defendant waived his right to a trial by jury, and the case proceeded to a
bench trial. The parties stipulated that Detective Rodriguez’s testimony would be
consistent with his testimony at the hearing on the motion to suppress.

                                            -6-
        The victim testified that in the early morning hours of April 23, 2016, she was
sleeping in bed inches from her nine-year-old daughter. Her husband, her sister-in-law,
and five other guests were awake in the living room. The victim heard a loud noise and
felt that she had been shot in her hip. Her husband “snatched” their child out of the bed
in case there were subsequent shots and then applied pressure to the victim’s wound. The
victim lost consciousness but briefly woke up to find detectives “everywhere in my
home.”

       The victim testified that she suffered from post-traumatic stress disorder, and
medical records confirming this were introduced.2 The victim also suffered from
depression, anxiety, and panic attacks as a result of the shooting. She was undergoing
treatment from a specialist for pain management. At the time of trial, the victim needed a
cane to walk, and she anticipated having to have a hip replacement. She testified that she
needed help getting dressed and with other tasks. Her children were suffering
academically and psychologically as a result of the shooting.

        Detective Rodriguez described his investigation of the scene. He was able to
observe the bullet hole in the wall of the home and could see where it entered and exited
the mattress. Using a straight rod, he tracked the path of the bullet, determining that it
came from “lower ground,” possibly thirty inches off the ground. There was a bush in
the area from which Detective Rodriguez believed the bullet was fired. He testified that
officers determined that the shot came from “down the driveway,” either from the bush
“or [the perpetrators] were sitting on their knees and firing it up.” He testified that he had
three people look through the bush and found no damage from a bullet passing through.
He did not inspect the tree line and could not say whether the bullet had changed
trajectory. Detective Rodriguez testified that the victim’s house was set back from the
road by approximately the length of a football field. Detective Wassel swabbed the
Defendant’s truck to test for gunshot residue, but Detective Rodriguez was not aware that
any was found. The Defendant’s rifle was approximately four feet long.

       Detective Rodriguez reiterated that the Defendant in his first statement admitted to
attempting to rob Mr. Robinson and to providing the car and firearm but denied firing the
bullet. The Defendant gave officers consent to retrieve the gun from his home. In his
second statement, the Defendant made an admission to his mother that he had “messed
up” and “shot a woman.” He then gave a third statement acknowledging that he was
planning to rob Mr. Robinson because Mr. Robinson had previously robbed him. He


        2
          The record indicates that documents regarding hospital and doctor visits were also introduced in
this exhibit, but only one sheet of paper, documenting the victim’s post-traumatic stress disorder, is in the
appellate record.
                                                   -7-
acknowledged shooting at the house. Detective Rodriguez testified that the Defendant
had a circular cut on his eye which “looked as if a scope might have hit his eye.”

       The trial court found the Defendant guilty of reckless endangerment and reckless
aggravated assault. At sentencing, the victim testified regarding the profound impact the
shooting had on her life, and the Defendant’s mother testified that she would be able to
help the Defendant if he were to receive alternative sentencing. The trial court sentenced
the Defendant to concurrent sentences of two and three years, with 360 days to be served
in prison and the remainder through the community corrections program.


                                       ANALYSIS

                                  I. Motion to Suppress

        The Defendant asserts that the trial court erred in denying his motion to suppress
his statements. A trial court’s findings of fact in a suppression hearing are binding on the
appellate court unless the evidence preponderates against them. State v. Clark, 452
S.W.3d 268, 282 (Tenn. 2014). When the findings are not based on witness credibility,
the appellate court may review de novo. Id. Determinations regarding the credibility of
witnesses, the weight of the evidence, and the resolution of conflicts in the evidence are
entrusted to the trial court. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). The
party who prevails at the trial level is entitled to the strongest legitimate view of the
evidence and to reasonable and legitimate inferences which may be drawn from it. Id.
An appellate court may consider evidence adduced at trial in determining the correctness
of a ruling on a motion to suppress. State v. Sanders, 452 S.W.3d 300, 306 (Tenn. 2014).
The trial court’s legal conclusions are reviewed de novo. State v. Walton, 41 S.W.3d 75,
81 (Tenn. 2001). “[W]here the evidence includes a complete and accurate videotape
depiction of the police interview which is the subject of the suppression hearing, the trial
court’s findings of fact with respect to the matters depicted on the videotape are also
subject to de novo review.” State v. Dailey, 273 S.W.3d 94, 100 (Tenn. 2009).

       Under the Fifth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution, the accused may not be compelled to incriminate
himself. These protections are “concerned with the inherently coercive atmosphere that
accompanies interrogation (or its functional equivalent) by the police.” Sanders, 452
S.W.3d at 311. When a defendant is subjected to custodial interrogation, law
enforcement must inform the defendant of his constitutional rights, including that he has
the right to remain silent, that his statement may be used against him, that he has the right
to the assistance of an attorney, and that he will be appointed an attorney if he cannot
afford one. Miranda, 384 U.S. at 479. The suspect must have the opportunity to either
                                            -8-
assert these rights or to knowingly and intelligently waive them. Id. “‘But unless and
until such warnings and waiver are demonstrated by the prosecution at trial,’ statements
given during custodial interrogation are not admissible in the prosecution’s case-in-
chief.” State v. Climer, 400 S.W.3d 537, 557 (Tenn. 2013) (quoting Miranda, 384 U.S.
at 479). Even statements that are voluntarily made will be excluded if they are the result
of custodial interrogation without adequate warmings. State v. Payne, 149 S.W.3d 20, 32
(Tenn. 2004). “To constitute a ‘custodial interrogation,’ (1) the subject must be ‘in
custody’; (2) there must be an interrogation; and (3) the interrogation must be conducted
by a state agent.” State v. Smith, 933 S.W.2d 450, 453 (Tenn. 1996) (quoting Miranda,
384 U.S. at 444). “As the Miranda Court emphasized, however, these warnings are not
required in the absence of custodial interrogation.” State v. Northern, 262 S.W.3d 741,
749 (Tenn. 2008).

                                  A. Initial Statement

        The Defendant asserts that he was in custody during his initial statement to police
and that his statement should accordingly have been ruled inadmissible because he was
not informed of his rights. The State counters that the Defendant was not in custody and
that his initial confession was consequently admissible.

        A person is in custody for the purposes of analysis under Miranda when there is
“‘a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.’” State v. Anderson, 937 S.W.2d 851, 854 (Tenn. 1996) (quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983)). The test is “‘whether, under the
totality of the circumstances, a reasonable person in the suspect’s position would consider
himself or herself deprived of freedom of movement to a degree associated with a formal
arrest.’” Dailey, 273 S.W.3d at 102 (quoting Anderson, 937 S.W.2d at 855). This is an
objective test, and the subjective suspicion of law enforcement that the suspect has
committed a crime is not relevant to the inquiry. Payne, 149 S.W.3d at 32-33.

       Some factors relevant to that objective assessment include the time and
       location of the interrogation; the duration and character of the questioning;
       the officer’s tone of voice and general demeanor; the suspect’s method of
       transportation to the place of questioning; the number of police officers
       present; any limitation on movement or other form of restraint imposed on
       the suspect during the interrogation; any interactions between the officer
       and the suspect, including the words spoken by the officer to the suspect,
       and the suspect’s verbal or nonverbal responses; the extent to which the
       suspect is confronted with the law enforcement officer’s suspicions of guilt
       or evidence of guilt; and finally, the extent to which the suspect is made

                                           -9-
       aware that he or she is free to refrain from answering questions or to end
       the interview at will.

Anderson, 937 S.W.2d at 855. Any other factors bearing on the totality of the
circumstances in which the interrogation was conducted may also be relevant in
determining whether an interrogation was custodial. Id.

       We note that, despite the fact that making the factual determination relevant to
custody is “a task for which the trial court is especially suited,” this record presents us
with a paucity of factual findings to aid review. Id. The trial court made no findings
about how the Defendant arrived at the police station or how he left, under what
circumstances he went outside with Detective Wassel, or whether his possessions or
mode of transportation were confiscated. Moreover, neither the trial court nor the parties
make any reference to the Defendant’s rebuffed attempts to leave the police station, facts
which we deem particularly salient for our review.

       The record shows that the interview took place at the police station and lasted
approximately four hours. The Defendant told officers that he believed he was there
regarding drug activity at his rented trailer, and the questioning was initially
conversational. The Defendant arrived by driving himself to the station, and three police
officers came in and out of the room, assisting with the interview at various times. The
Defendant was in a room with an unlocked door that was in a section of the station
requiring a code for entry or exit. The Defendant’s key chain, which contained both his
vehicle and house key, was removed from his possession. His telephone was later seized.
The Defendant was initially told that he could leave at any time and was not confronted
with any accusations.

       However, when the Defendant became aware that his telephone could be used to
track his whereabouts, he asked Detective Shelton, “Am I free to go?” Detective Shelton
responded that he would have to ask Detective Rodriguez, and when he returned, he told
the Defendant, “Hey, man, we got a couple more questions.” He then offered the
Defendant refreshments.       The Defendant was soon thereafter confronted with
accusations, and he was told that his telephone would be seized.

       The Defendant asked if he was under arrest, and he was told, “No…. You can’t
leave. We’re fixing to get a search warrant on the truck.” When the Defendant attempted
to clarify why he was being held if he was not under arrest, Detective Rodriguez
responded, “You can go walk all you want to, bubba.” The Defendant then went to his
vehicle in the company of law enforcement officers, and Detective Rodriguez described
him as “out there now. He’s trying to leave. He won’t let us get his phone.” The
Defendant located his telephone, and he ultimately confessed to some involvement with
                                          - 10 -
the crime. His house and car keys were in the possession of police until the very end of
the interview, when Detective Wassel gave the Defendant the house key so that he could
accompany officers to retrieve the gun.

        At the beginning of the interview, the Defendant, who was in a secured location
within the building but was told he could leave at any time and was not otherwise
restrained, was not in custody. However, an interview which begins as non-custodial
may ripen into a custodial interview when circumstances lead to the conclusion that a
reasonable person in the suspect’s position would no longer consider himself or herself
free to leave but instead feel deprived of freedom of movement to the degree associated
with a formal arrest. Payne, 149 S.W.3d at 34-35 (holding that the defendant was in
custody “at the latest when the interview resumed following the first break”); see State v.
Daniel, 12 S.W.3d 420, 427 (Tenn. 2000) (“However, what begins as a consensual
police-citizen encounter may mature into a seizure of the person.”).

       In this case, after the Defendant became aware of the suspicions of law
enforcement, he asked Detective Shelton directly if he was free to go. Detective Shelton
told the Defendant that he must consult with Detective Rodriguez and then said, “Hey,
man, we got a couple more questions,” offering the Defendant refreshments. This answer
amounts to a negative. After a confrontation regarding the telephone, during which the
Defendant brought up the word, “lawyer,” the Defendant asked if he was under arrest,
and Detective Rodriguez responded, “No…. You can’t leave.” Although Detective
Rodriguez then told the Defendant that he could “walk,” the record indicates that law
enforcement in fact accompanied the Defendant when he left the building and that they
retained possession of the Defendant’s house key as well as his car key, and later, his
telephone. See Daniel, 12 S.W.3d at 427 (“Without his identification, [the defendant]
was effectively immobilized.”). The Defendant was described by law enforcement as
“trying to leave.”

       We conclude that, under the totality of the circumstances, a reasonable person in
the Defendant’s position, after having been told twice he could not leave and while
dispossessed of his house key, his car key, and his telephone, would have felt deprived of
freedom of movement to the degree associated with a formal arrest. It is probable that
law enforcement did not intend to take the Defendant into custody or to arrest him on that
day, but the determinative inquiry is whether a reasonable person in the suspect’s position
would have felt he was in custody and not whether law enforcement subjectively
intended to place him into custody. See Payne, 149 S.W.3d at 32-33. Although the trial
court relied on the fact that the Defendant was ultimately permitted to depart, we do not
think that his release from custody later in the day erases the fact that prior to his making
a statement, he was twice told by law enforcement that he could not leave the police
station. Accordingly, the Defendant was in custody at the time that he made the first
                                           - 11 -
incriminating statements, and he should have been apprised of his rights under Miranda.
See Dailey, 273 S.W.3d at 103-04 (holding that the defendant was in custody when the
interview was not prolonged and some of it was conversational, but he was told that the
police had sufficient evidence to charge him with murder and was never told he was free
to leave or refrain from answering questions); Payne, 149 S.W.3d at 34 (holding that the
defendant was in custody when he drove himself to the station, was told he could leave,
and was initially spoken with empathetically, but when the tone of the interview became
accusatory and then combative, the defendant’s access to the door was blocked, and the
defendant attempted to leave unsuccessfully three times).

        The Defendant asserts that his statement, “Well, then, lawyer,” was an
unequivocal request for counsel, and the State disagrees. A request for an attorney relates
to the invocation of the right to counsel, waiver of the right, or revocation of a waiver.
See Climer, 400 S.W.3d at 564 (noting that the prosecution had to show that the accused
affirmatively waived his rights, not merely that the invocation of the right to counsel was
insufficient). In this case, the Defendant was not informed of his rights under Miranda,
and “‘unless and until such warnings and waiver are demonstrated by the prosecution at
trial,’ statements given during custodial interrogation are not admissible in the
prosecution’s case-in-chief.” Id. at 557. Accordingly, the trial court erred in not
excluding the Defendant’s initial statements to law enforcement.

        We must now evaluate the effect of this error on the Defendant’s convictions.
“The erroneous admission of evidence obtained in violation of a defendant’s Miranda
rights is a non-structural constitutional error, and as such, is subject to … harmless error
analysis.” Id. at 569-70. The question is “‘whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’” Id. at 569
(quoting State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)). The State has the
burden of demonstrating that the error was harmless. Rodriguez, 254 S.W.3d at 371. The
fact that the trial was largely uncontested and that the State did not introduce the
testimony of any of the witnesses who were in the vehicle necessarily makes this
determination more difficult.

       In evaluating the effect of this error, we note that the Defendant does not present
an argument for excluding his final statement, which was made two days after the initial
statement and which was preceded by Miranda warnings.3 The Defendant initially

       3
         The Tennessee Supreme Court has analyzed the admissibility of a confession made after proper
warnings but following an illegally obtained confession under three separate tests. See Dailey, 273
S.W.3d at 107-12. The subsequent confession is analyzed under the nine factors in State v. Smith, 834
S.W.2d 915, 919-20 (Tenn. 1992) to determine whether the State has rebutted the presumption raised
under the Tennessee Constitution that the subsequent confession is tainted. Northern, 262 S.W.3d at 763-
66. The Tennessee Supreme Court has also applied both tests of admissibility found in Missouri v.
                                                - 12 -
acknowledged some involvement in the crime while he was interrogated in police
custody without having received Miranda warnings. However, the Defendant then
departed the police station, and he gave a subsequent confession two days later, after he
was arrested at his home. The Defendant was advised of his rights during his formal
arrest, and in his second written statement, he acknowledged that he was the shooter.

        The Defendant raises no challenge to the admissibility of his subsequent,
Mirandized statement. He simply presents no argument for the subsequent statement’s
exclusion, and we accordingly conclude that the admission of the first statement was
harmless beyond a reasonable doubt. See State v. Munn, 56 S.W.3d 486, 498 (Tenn.
2001) (concluding that admitting the defendant’s inadmissible confessions to his parents
was harmless beyond a reasonable doubt in the guilt phase when the defendant made
largely duplicative and admissible statements to the police); State v. Bates, 804 S.W.2d
868, 876 (Tenn. 1991) (holding erroneous admission of statements harmless because a
“trail” of evidence led “unerringly” to the defendant and because the defendant made a
subsequent confession which would in any event have been admissible).

                       B. Statement Made to the Defendant’s Mother

       The Defendant contends that the statement that he made to his mother should be
suppressed because it amounted to a statement made in response to custodial
interrogation and because his request for counsel made two days before was not honored.
The record is clear that at the time the Defendant made the statement, he was in custody
and had not been advised of his rights. The Defendant asserts that putting his mother on
the telephone was inherently coercive. However, the constitutional provisions at issue
“forbid official coercion, not mere ‘strategic deception.’” Sanders, 452 S.W.3d at 312
(quoting State v. Branam, 855 S.W.2d 563, 568 (Tenn. 1993)). “These constitutional
provisions are not concerned ‘with moral or psychological pressures to confess
emanating from sources other than official coercion.’” Id. (quoting United States v.
Erving L., 147 F.3d 1240, 1247 (10th Cir. 1998)).



Seibert, 542 U.S. 600, 615, 621-22 (2004): Justice Kennedy’s test regarding whether a “question first”
strategy was deliberately employed and whether curative measures were taken and the plurality’s five-
factor test used to analyze the admissibility of a subsequent confession. Dailey, 273 S.W.3d at 107-10;
Northern, 262 S.W.3d at 760-63.




                                                - 13 -
       In State v. Dotson, the defendant, after invoking his right to counsel, asked to
speak with his mother. 450 S.W.3d 1, 53 (Tenn. 2014). The defendant’s mother was
permitted to speak to him in a room by herself, and he made incriminating statements to
her. Id. The Tennessee Supreme Court held that the record was devoid of evidence that
the defendant’s mother was acting as a State agent when she spoke to him and that
accordingly the conversation did not amount to interrogation by the State. Id. at 54-55.

       The defendant in Arizona v. Mauro likewise asserted his right to remain silent
while he was in custody. Arizona v. Mauro, 481 U.S. 520, 527 (1987). Police officers
ceased questioning but at his wife’s request, allowed her to speak with him in the
presence of an officer who was recording the conversation. Id. at 527-28. The Supreme
Court concluded that allowing the defendant to speak with his wife was neither
interrogation nor “the kind of psychological ploy that properly could be treated as the
functional equivalent of interrogation.” Id. at 527. The Court noted that the government
was not “using the coercive nature of confinement to extract confessions that would not
be given in an unrestrained environment.” Id. at 530; see also State v. Kendell Edward
Johnson, No. M2011-00792-CCA-R3-CD, 2012 WL 3731699, at *14-16 (Tenn. Crim.
App. Aug. 29, 2012) (concluding that the statement which the defendant made to his
father at the police station after asserting his right to remain silent was admissible).

        Here, the Defendant was allowed to speak to his mother. Detective Rodriguez
testified that the Defendant’s mother asked him “what was going on” and the Defendant
made incriminating statements. There is no evidence that law enforcement coerced the
statements or that the Defendant’s mother’s unprompted and general question to him
constituted the functional equivalent of police interrogation. See Dotson, 450 S.W.3d at
53; Kendell Edward Johnson, 2012 WL 3731699, at *14-16. The trial court did not err in
admitting the statement.

                              II. Sufficiency of the Evidence

        The Defendant also challenges the sufficiency of the evidence. This court must set
aside a finding of guilt if the evidence is insufficient to support the finding by the trier of
fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). The question before the
appellate court is whether, after reviewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013). This
court neither reweighs nor reevaluates the evidence, nor may it substitute its inferences
for those drawn by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A jury’s verdict of guilt, approved by the trial court, resolves conflicts of evidence in the
State’s favor and accredits the testimony of the State’s witnesses. State v. Smith, 436
S.W.3d 751, 764 (Tenn. 2014). The trier of fact is entrusted with determinations
                                            - 14 -
concerning witness credibility, factual findings, and the weight and value of evidence.
Id. “This Court affords the State the strongest legitimate view of the evidence presented
at trial and the reasonable and legitimate inferences that may be drawn from the
evidence.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012). A guilty verdict
replaces the presumption of innocence with one of guilt, and on appeal, the defendant
bears the burden of demonstrating that the evidence is insufficient to support the
conviction. State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). Circumstantial
evidence may, by itself, support a conviction, and the State is not required to exclude
every reasonable hypothesis save guilt. Id.

       The Defendant was convicted of reckless endangerment by discharging a firearm
into an occupied habitation. To convict the Defendant, the State had to show that he
recklessly engaged in conduct that placed another in imminent danger of death or serious
bodily injury by discharging a firearm into a habitation which was occupied at the time.
T.C.A. §§ 39-13-103(a), (b)(3); 39-14-401(1)(A), (2). A person acts recklessly “when
the person is aware of but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur.” T.C.A. § 39-11-302(c). The disregard
of the risk must constitute a “gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances” as viewed from the standpoint of the
accused. Id.

       The Defendant was also convicted of reckless aggravated assault. As charged
here, the State had to demonstrate that the Defendant, acting recklessly, caused bodily
injury to the victim and that the assault involved the use of a deadly weapon. T.C.A. §§
39-13-101(a)(1), -102(a)(1)(B)(iii) (2015).

       The Defendant argues that, even if his confessions were properly admitted, the
evidence is insufficient to support the verdict because the victim was unable to identify
him and because the investigation was allegedly incomplete. He argues that the absence
of gunshot residue within the truck excludes the theory that he was the shooter.
However, in examining the sufficiency of the evidence, we merely evaluate whether a
rational trier of fact could have found the elements of the offenses beyond a reasonable
doubt. Pope, 427 S.W.3d at 368. The State presented evidence that the Defendant placed
the numerous occupants of the home into imminent danger of death or serious bodily
injury by recklessly firing a rifle through the walls of the home. Likewise, the State’s
proof showed that the Defendant acted recklessly in discharging a deadly weapon into the
house, causing bodily injury to the victim of the gunshot. The Defendant’s admissible
statements to police establish his identity as the shooter. Accordingly, the evidence is
sufficient to sustain the verdict.



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                             CONCLUSION

Based on the foregoing reasoning, we affirm the trial court’s judgments.




                                            _________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




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