         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE         FILED
                     NOVEMBER 1998 SESSION
                                               January 27, 1999

                                              Cecil W. Crowson
                                             Appellate Court Clerk
STATE OF TENNESSEE,            )
                               )    NO. 01C01-9709-CC-00435
      Appellee,                )
                               )    GILES COUNTY
VS.                            )
                               )    HON. JIM T. HAMILTON,
KEITH SLATER,                  )    JUDGE
                               )
      Appellant.               )    (Premeditated First Degree
                               )    Murder)



FOR THE APPELLANT:                  FOR THE APPELLEE:

HERSHELL D. KOGER                   PAUL G. SUMMERS
131 North 1st St.                   Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478                   LISA A. NAYLOR
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    T. MICHAEL BOTTOMS
                                    District Attorney General

                                    RICHARD H. DUNAVANT
                                    ROBERT C. SANDERS
                                    Asst. District Attorneys General
                                    P.O. Box 304
                                    Pulaski, TN 38478-0304




OPINION FILED:



AFFIRMED IN PART; VACATED; AND REMANDED IN PART



JOE G. RILEY,
JUDGE
                                               OPINION

        The defendant was convicted of premeditated first degree murder by a

Giles County jury and received a sentence of life imprisonment. In this appeal as

of right, the defendant challenges: (1) the sufficiency of the evidence; (2) the trial

court's refusal to suppress his taped phone conversation with his roommate; and

(3) its refusal to suppress his statement to the police. Upon our review of the

record, we AFFIRM IN PART, but REMAND for another hearing on the motion to

suppress defendant’s statement to the police.



                                              I. FACTS

        The victim, Melvin Franklin, was shot twice at his trailer home in the early

morning hours of August 31, 1996. One bullet struck him in the back and the

other in his right buttock. Kevin Folston, a neighbor, heard the gunshots and

saw Kendrick Young's car leaving the scene with its lights off. He did not see

defendant in the car; however, shortly thereafter he saw a man come to the

trailer door and then leave. Mattie Louise Gordon, the victim's niece, found

Franklin's body several hours later.

        The police initially arrested Young for the homicide. In his statement to

Investigator John Dickey, Young implicated his roommate, the defendant, as the

shooter. Dickey had Young make a taped phone call to defendant’s workplace.

During the conversation, defendant acknowledged shooting the victim.1

        Based upon Young’s statement and the recorded phone call, Dickey

obtained an arrest warrant for defendant which was executed. Once at the

station, defendant was booked, taken into Dickey’s office and given his Miranda

warnings. Defendant gave a statement outlining his involvement in the shooting,

including an admission that he was the triggerman.



        1
          A transcript of the pho ne call was prov ided to the jury, but wa s not included in the re cord.
The record does contain the original recording. The tape reflects defendant and Young discussing the
incident. Defendant answers in the affirmative Young's question that if he (Young) were convicted,
would he (the defendant) come forward and say that he (the defendant) shot the victim. It further
portrays Young asking defendant if anyone else knew that he (the defendant) shot the victim, to which
the defendant responds in the negative.

                                                    2
                       A. Testimony of Kendrick Young

      Young testified at trial that he and defendant drove in Young's car to

Franklin’s home. They went to retrieve money that Young thought Franklin had

taken from his cousin, Clarence Jacobs, earlier that evening. Young entered the

trailer and found Franklin at the kitchen table “[s]moking crack.” He asked about

Jacob’s money and Franklin denied taking it. Young said he then took Franklin’s

drugs and pipe and walked toward the back of the trailer.

      According to Young’s testimony, at this point defendant asked him, “[w]hat

you want to do, man?” to which Young replied, “I don't know.” He was looking

out a window when defendant said, “[b]ye, Melvin.” Young then heard a

gunshot. When Young turned around, he saw the defendant “right there” and

ran. He heard about four shots but did not see a gun.

      Young testified that he ran to his car, pulled out his own gun, started the

engine, the defendant got in, and they drove off. When Young asked the

defendant why he shot Franklin, defendant responded, “it's the third time

somebody stolen from us, and (sic) just can't have it.” Only then did Young see

defendant with the .38 caliber gun that defendant threw away soon thereafter.

Young denied shooting the victim or seeing the victim pull a gun.



           B. Testimony of Bobby Gerald Wright and Joelean Magraff

      Bobby Gerald Wright testified that he was in the trailer bedroom with his

girlfriend, Joelean Magraff, when Franklin was shot. He testified that he heard

Young's voice, but not the defendant's. He denied hearing anyone say, “[b]ye,

Melvin.”

      Magraff testified that she, too, heard a voice that sounded like Young’s.

Although she identified the voice as Young’s in her statement to Investigator

Dickey near the time of the incident, by trial she was unsure. However, she was

certain she did not hear or see anyone else in the trailer; nor did she hear

anyone say, “[b]ye, Melvin.”




                                         3
                        C. Testimony of Law Enforcement

       Investigator Dickey testified that he recovered a .38 caliber gun using

information provided by Young. Robert E. McFadden, a Tennessee Bureau of

Investigation (TBI) forensic scientist specializing in latent fingerprints, testified

that he found no fingerprints on this weapon. Donald Carmen, a TBI forensic

scientist specializing in firearms identification, testified that the two bullets

recovered from the victim's body exhibited the same “class characteristics” as

the test bullets fired from the .38. However, he could not determine whether

there was a match of “individual characteristics” because the bullets recovered

from the victim's body were damaged in a manner consistent with their having

struck bone.



                            D. Testimony of Defendant

       Defendant also testified at trial and acknowledged ownership of the gun

found by Investigator Dickey. He stated that he bought it from Young about two

years earlier. Defendant testified that Young went to the victim's trailer alone,

returned a while later, and told defendant that he had shot Melvin Franklin.

Defendant alleged that they worked on a story together in which he would admit

to shooting the victim. The defendant claimed that he “was trying to help out a

friend” and that, because he had no prior record, he thought “it wouldn’t be as

bad on me.” For this reason, defendant claims he stuck to the story although

Young did not.

       Defendant also acknowledged the contents of the taped phone

conversation with Young. But, he averred that when Young asked him if anyone

else knew that he (the defendant) shot Franklin besides him (Young), that he

thought Young was asking if anyone else knew that Young had shot the victim.

He admitted saying, “be sure to tell [the police]; be sure to remember that we

went to get my gun and Clarence's 40 or $50.00, and he pulled that damn gun

out on me and I took it away from him.” The defendant denied shooting Melvin

Franklin.

                                            4
                      II. SUFFICIENCY OF THE EVIDENCE

       Defendant contends that the evidence is insufficient to support his

conviction. When a defendant challenges the sufficiency of the convicting

evidence, we must review the evidence in the light most favorable to the

prosecution in determining whether “any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

We do not reweigh or re-evaluate the evidence and are required to afford the

State the strongest legitimate view of the proof contained in the record as well as

all reasonable and legitimate inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). It is the defendant's burden to

illustrate to this Court why the evidence is insufficient to support the verdict

returned by the trier of fact in his or her case. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982).

       Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact, not this Court. State v. Cabbage, 571 S.W.2d at

835. A guilty verdict rendered by the jury and approved by the trial judge

accredits the testimony of the witnesses for the State, and a presumption of guilt

replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).

       In August 1996, the time at which the instant offense was committed, first

degree premeditated murder was defined as a “premeditated and intentional

killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1996). A

premeditated killing is one “done after the exercise of reflection and judgment”

and where “the intent to kill [was] formed prior to the act itself.” Tenn. Code Ann.

§ 39-13-202(d). Premeditation does not require that the purpose to kill pre-exist

in the defendant's mind for any definite period of time. Id. However, the

defendant's state of mind at the time he decided to kill “must be carefully

considered in order to determine whether [he] was sufficiently free from

                                          5
excitement and passion as to be capable of premeditation.” Id.

      In this case, the proof established that the victim was shot twice from

behind. Young testified that he and the defendant went to the victim's home to

recover some money and that, while they were there, the defendant shot the

victim, firing about four shots. Young further testified that, when asked why

defendant shot Franklin, defendant responded it was because the victim had

stolen from them.

      Young also testified that he saw the defendant throw away the murder

weapon which the police later found with his assistance. The bullets recovered

from the victim's body had the same “class characteristics” as the recovered

weapon, and the defendant admitted the gun was his.

       Finally, defendant admitted to shooting the victim in the taped phone

conversation with Young and in his statement to Investigator Dickey. Under the

standards for determining the sufficiency of the evidence on appeal, this proof is

sufficient to support the defendant's conviction for premeditated first degree

murder.

       Therefore, this issue has no merit.



                      III. TAPED PHONE CONVERSATION

       The defendant also contends that the trial court should have suppressed

his taped phone conversation with Young. The conversation took place after

Investigator Dickey coached Young regarding what questions to ask defendant.

Dickey was with Young when the call was made and simultaneously listened to

and recorded it.

       Defendant argues that this activity violated his Sixth Amendment right to

counsel in that it was improper for Young, “acting as a tool of the police

department, to interrogate [him] under the guise of a phone call between

friends.” We disagree.

       The Supreme Court of Tennessee has held that the right to counsel does

not attach until adversary judicial proceedings have been initiated. State v.

                                         6
Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980); see also State v. Meeks, 876

S.W.2d 121, 127 (Tenn. Crim. App. 1993). “Initiation” occurs upon the issuance

of a formal charge, i.e., an arrest warrant, a preliminary hearing or the issuance

of an indictment or presentment. State v. Mitchell, 593 S.W.2d at 286.

       In this case, the phone call was made during the investigation of the

homicide. At that point, the only evidence of defendant's involvement was a

claim by their primary suspect who was already charged with the crime. The

police were entitled to investigate Young's allegations before placing the

defendant under arrest. “‘There is no constitutional right to be arrested.’”

Clariday v. State, 552 S.W.2d 759, 769 (Tenn. Crim. App. 1976) (quoting Hoffa

v. United States, 385 U.S. 293, 310 (1966)). Therefore, defendant's right to

counsel was not violated by Young's phone call to him, or by the recording

thereof. The trial court did not err in refusing to suppress this evidence.

       This issue is without merit.



                       IV. DEFENDANT’S CONFESSION

       Finally, defendant avers that the trial court erred by refusing to suppress

his statement to Investigator Dickey following his arrest. In this statement, the

defendant confessed to shooting the victim.



                               A. Pre-Trial Motion

       At the pre-trial hearing on the motion to suppress, Investigator Dickey

testified that: (1) while being processed, defendant asked to speak with his

mother, but there was no mention of contacting an attorney; (2) defendant never

asked for attorney Bob Massey or any other attorney; (3) after being given his

Miranda warnings, defendant agreed to give a statement; and (4) defendant

never indicated a desire to stop the interview.

       Defendant testified at the hearing that: (1) during the booking process, he

repeatedly asked to call his mother so she could contact an attorney for him; (2)

he specifically mentioned the name of attorney Bob Massey; (3) he went into

                                         7
Dickey's office where he was advised of his Miranda rights; and (4) he "told

[Dickey] plenty of times I wanted to talk to my lawyer, but he was [sic] always

say, 'in a while. In a while. Not right now.'"

       Martha Slater, defendant’s mother, testified that when she was finally

allowed to see defendant, she asked him why he did not ask to see her.

Defendant’s response was that he had asked for her and attorney Bob Massey,

but that the police refused both requests.

       The trial court denied the motion to suppress but specifically declined to

make any findings of fact regarding this issue as evidenced by the following

exchange with defense counsel:

               THE COURT:          Well, I’m interrupting you but I don’t
       think it makes any difference whether he asked for an attorney or
       not in the hallway. The officer did what I taught him to do, had I
       been in an in-service training class. I would have said, take the
       defendant in there and read him his Miranda rights before you do
       another thing, after you get his fingerprints and his name and age
       and address, and whatever.

             MR. KOGER:            Right. But I think, Your Honor, with all
       due respect, that the state of the law in Tennessee is -- it’s one of
       these what I call magic words. When the defendant says, I want a
       lawyer --

              THE COURT:            No, sir. You’re wrong, if you think that’s a state
       law.

              MR. KOGER:          -- then everything stops until one of two
       or three things happen. Either the defendant gets a lawyer or the
       defendant initiates conversation.

              THE COURT:           That’s not true. The state of the law in
       Tennessee is that if Mr. Slater -- and I’m going to give him the
       benefit of the doubt. If he asked him, said, I’d like to talk to Bobby
       Massey [an attorney]. He said, okay, just wait a minute. Wait until
       we get through processing you.
              He got through processing him. He took him in the office.
       He set him down. He gave him his Miranda rights. And he waived
       his Miranda rights. And I don’t know what he told Mr. Dickey, after
       he did that, but where is the beef?

               MR. KOGER:          The beef is that when you say, I want to
       talk to Bob Massey [an attorney], that you have invoked your Sixth
       Amendment right to counsel, and the police can’t touch you. They
       can’t talk to you about anything.

             THE COURT:             I’m going to overrule that motion. He
       gave him the Miranda rights. He gave him his Miranda rights at the
       proper time. I think he followed proper procedure.
             There is a question in my mind whether he ever asked for an


                                          8
        attorney. I don’t know. He may have or he may not have. I don’t
        know who to believe.

                MR. KOGER:            Judge, for the purpose of the record,
        Your Honor, when you say you are giving us the benefit of the
        doubt, does that mean that you are making a finding of fact that he
        did, in fact, ask for an attorney.

               THE COURT:            No, sir. I’m making a finding of fact that
        one said yea and one said nay, and I don’t know which one to
        believe. I don’t think it makes any difference if he did.

We respectfully disagree with the trial court’s conclusion that it was irrelevant

whether or not the defendant requested legal counsel prior to being Mirandized.



                                    B. Right To Counsel

        There is a Sixth Amendment right to counsel that attaches after initiation

of adversarial proceedings. Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct.

1404, 1407, 89 L.Ed.2d 631, 638 (1986). In Tennessee, issuance of an arrest

warrant triggers such “initiation.” State v. Huddleston, 924 S.W.2d 666, 669

(Tenn. 1996); State v. Mitchell, 593 S.W.2d at 286. Thus, if a defendant

requests counsel during the booking process and after his arrest pursuant to an

arrest warrant, police-initiated interrogation is forbidden. Michigan v. Jackson,

475 U.S. at 630, 632. Any subsequent statement made by a defendant as a

result of such police-initiated interrogation must be suppressed regardless of

whether the defendant executed a Miranda waiver. Id. at 636.

        There is also a Fifth Amendment right to counsel that attaches during

custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S.Ct.

1880, 68 L.Ed.2d 378 (1981). Again, if a defendant requests counsel while

being given his Miranda warnings or during custodial interrogation, the

interrogation must cease. Id. at 482; State v. Huddleston, 924 S.W.2d at 669.

Any subsequent statement made by a defendant as a result of police-initiated

interrogation must be suppressed. Edwards v. Arizona, 451 U.S. at 484-85.2




        2
         An equivocal or ambiguous request for counsel does not trigger the Edwards requirement
under the Fifth Am endment. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362
(1994); State v. Huddleston, 924 S.W.2d 666, 669-70 (Tenn. 1996).

                                                9
                                   C. Necessity for Remand

        Defendant’s testimony directly contradicted the testimony of Investigator

Dickey. Defendant testified he repeatedly asked for counsel. Dickey testified

that defendant said “[n]othing directed toward an attorney.” A determination of

facts is necessary before this Court can address this issue. The trial court

declined to make findings. As an appellate court, we are unable to make

findings of fact. Further, under the circumstances, it would not be appropriate to

simply remand for the entry of findings based upon the previous hearing. Thus,

this case must be remanded to the trial court for another hearing on the motion

to suppress.3



                                        V. CONCLUSION

        Based upon the foregoing, the judgment of conviction must be VACATED

and the case REMANDED for another hearing on the motion to suppress.

        If the trial court determines upon remand that defendant did not request

counsel, it shall enter an order accordingly and reinstate the judgment of

conviction. Defendant may then appeal that issue to this Court. If the trial court

determines that defendant did request counsel, it should grant a new trial and

suppress defendant’s statement.4

        The judgment of the trial court is affirmed as to the other issues raised in

this appeal.




                                                    ________________________________
                                                    JOE G. RILEY, JUDGE




        3
          We have ex amined the rec ord in an effort to determ ine whether the ad mission of defen dant’s
confession was harmless error should it be determined to be error at all. We are unable to conclude
that the jury would necessarily have reached the same result without the defendant’s confession.

        4
         A similar procedure was followed in State v. William Chouinard, C.C.A. No. 03C01-9311-CR-
00357, McM inn County (T enn. Crim. Ap p. filed February 9, 19 95, at Knoxville); rehearing denied
August 8, 1995.

                                                   10
CONCUR:



(Not Participating)___________________
PAUL G. SUMMERS, JUDGE




_________________________________
L. T. LAFFERTY, SENIOR JUDGE




                                   11
