        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON           FILED
                        JANUARY 2000 SESSION
                                                  March 22, 2000

                                                Cecil Crowson, Jr.
                                               Appellate Court Clerk
STATE OF TENNESSEE,         *    No. W1999-01255-CCA-R3-CD

           Appellee,        *    SHELBY COUNTY

VS.                         *    Honorable Joseph P. Dailey, Judge

ERIC THOMAS,                *    (Robbery)

           Appellant.       *




FOR THE APPELLANT:               FOR THE APPELLEE:

ERIC THOMAS, #97006881           PAUL G. SUMMERS
Pro Se (On Appeal)               Attorney General & Reporter
201 Poplar
Memphis, TN 38103                KIM R. HELPER
                                 Assistant Attorney General
WILLIAM C. GOSNELL               425 Fifth Avenue North
(At Trial)                       Nashville, TN 37243
217 Exchange
Memphis, TN 38103                WILLIAM L. GIBBONS
                                 District Attorney General

                                 AMY P. WEIRICH
                                 Assistant District Attorney
                                 201 Poplar Avenue, Third Floor
                                 Memphis, TN 38103




OPINION FILED: _______________


AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                               OPINION


                                            INTRODUCTION


       The defendant, Eric Thomas, appeals from his conviction of robbery by a

Shelby County jury. After conviction, the defendant was sentenced as a Range II

offender to eight years and one day in the Department of Correction. Thereafter,

the defendant waived his right to representation on his appeal1 and now proceeds

pro se. He contends that the trial court erred in:

       (1) Denying his pre-trial motion to suppress; and

       (2) denying certain portions of his pre-trial motion to enforce a verbal
           plea agreement.

These errors, he argues, entitle him to a new trial. After careful review, we disagree

and AFFIRM the judgment and sentence from the trial court.



                                                   FACTS


       On November 19, 1996, the defendant walked into the National Bank of

Commerce in Memphis, walked to the teller-counter, handed the teller a note,

robbed the bank and fled. At the scene, his fingerprints were preserved, and later

analysis produced a match.



       On this basis, the defendant was apprehended and, after a brief struggle,

transported to and held in the Shelby County Jail. Two days after his arrival, he

signed a written waiver of his Miranda rights and confessed to Detective Paris, a

veteran of the Memphis Police Department.



       Charged, indicted and tried, the defendant was found guilty in November

1998 of one count of robbery in violation of Tenn. Code Ann. § 39-13-401. But



       1
           In the r eco rd is a signe d wa iver o f the d efen dan t’s righ t to co uns el on a ppe al.

                                                      -2-
before trial, the court held two hearings in response to certain defense motions. As

the substance and dispositions of these motions form the basis of the defendant’s

instant appeal, this Court will review both in greater detail later. However, as

introduction, one, held 10 days before trial, was a suppression hearing determining

the admissibility of the defendant’s confession, and the other, held months before,

was a hearing to review the defendant’s motion to enforce a verbal guilty plea

agreement.



       To return to the defendant’s trial, the evidence was strong. Besides the

defendant’s confession, the bank teller identified the defendant, the defendant’s

fingerprints were introduced and the defendant’s handwritten note was introduced.

After the verdict, the trial court sentenced the defendant on January 29, 1999, and

the defendant, thereafter, filed his notice of appeal, his waiver of counsel, and his

appellate brief. Therefore, his appeal is now properly before this Court.



                                     ANALYSIS


                                Motion to Suppress


       On November 10, 1998, the trial court held a suppression hearing at which

the defendant argued that his confession was taken in violation of the dictates of

Miranda v. Arizona, 384 U.S. 436 (1966). See also State v. Middlebrooks, 840

S.W.2d 317, 326 (Tenn. 1992), cert. dismissed 510 U.S. 124 (1993). Specifically,

he asserted that his signed Miranda waiver was taken unknowingly and

unintelligently and therefore did not constitute legally sufficient waiver. The trial

court disagreed with this argument and admitted the confession. We conclude that

the defendant has not demonstrated that this decision was in error. Therefore, we

are bound to affirm the decision of the trial court.




                                         -3-
         At the hearing, the defendant attacked the sufficiency of his Miranda waiver,

which must be made voluntarily, knowingly and intelligently. First, he testified that

at the time of the statement he was under the mis-impression that Detective Paris

was actually his attorney.2 With Detective Paris as his attorney, the defendant

testified, he assumed, without reading, that the forms presented him, actually the

Miranda waiver, was in his own best interests. Therefore, he stated, he signed it.

Second, the defendant testified that his waiver came only after being locked in

isolation at the jail for two days without food or water. These two factors, he argues,

render his waiver defective, and therefore his confession inadmissible.



         However, in rebuttal, Detective Paris testified that at the time of the waiver,

it should have been clear to the defendant that he was, in fact, an officer of the state

and not an attorney. First, he testified that he identified himself to the defendant

and explained to the defendant the situation and context. Beyond this, he further

testified that at no time did the defendant complain of being in pain or in need of

food or water. Instead, he added that the defendant appeared unimpaired and

responsive.



         After hearing this diametrically opposed testimony, the trial court disbelieved

the defendant and credited the testimony of the detective. In support, the trial court

noted the obvious inconsistencies between the defendant’s testimony and the

statements endorsed in the waiver. Accordingly, it ruled the confession admissible.

Further, we note that this defendant was, at the time, not new to the justice system.

The record reveals his previous convictions and some familiarity with the system.



         We review the trial court’s findings under our well-established standard of

review. The findings of fact made by the trial court at the hearing on a motion to



         2
           The defe nda nt ex plains that h e ask ed th e polic e for his at torne y and D etec tive P aris
said that he would be acting as the defendan t’s lawyer.

                                                      -4-
suppress are binding upon this Court unless the evidence contained in the record

preponderates against these findings. See State v. Henning, 975 S.W.2d 290, 299

(Tenn. 1998). The trial court, as the trier of fact, is able to assess the credibility of

the witnesses, determine the weight and value to be afforded the evidence and

resolves any conflicts in the evidence. See State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996). However, this Court is not bound by the trial court’s conclusions of

law. See State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The defendant has

the burden of establishing that the evidence contained in the record preponderates

against the findings of fact made by the trial court. See Braziel v. State, 529 S.W.2d

501, 506 (Tenn. Crim. App. 1975). In this case, the defendant has the burden of

demonstrating that the evidence preponderates against a finding that a confession

was, in fact, freely, voluntarily and knowingly entered. See State v. Buck, 670

S.W2d 600, 610 (Tenn. 1984).



       The test for determining a valid waiver of Miranda protections under the

Tennessee Constitution is more protective of individual rights than the test under the

United States Constitution. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.

1994). To be effective, the waiver must be made with the defendant’s personal

awareness of both the nature of the right and the consequences of abandoning his

rights. Id. at 544-545. Additionally, the waiver cannot be the result of intimidation,

coercion or deception. Id. In determining whether a waiver was made voluntarily

or knowingly, the reviewing court looks at the totality of the circumstances

surrounding the relinquishment of the right. Id. at 545.



       In this case, as is apparent, the issue is purely one of credibility. For good

reason, credibility determinations are left primarily in the hands of the trial court.

See, e.g., Odom, 928 S.W.2d at 23. The trial court alone is in the position to best

observe the witness actually testify, to judge his demeanor, mannerisms and

speech. Therefore, as the defendant has presented no further evidence nor


                                           -5-
convincing argument, we agree with the trial court’s conclusion and affirm their

decision to admit the defendant’s confession. The record supports the trial court’s

ruling, and in short, we find no error.



                    Motion to Enforce A Verbal Plea Guilty Agreement


        Months before the ruling described above, the trial court conducted a hearing

in consideration of the defendant’s motion to enforce a verbal guilty plea agreement.

At this hearing, the defendant argued, and he now renews this argument, that the

state had breached agreed-to terms of a guilty plea agreement. The trial court

agreed with the defendant in one respect and disagreed with the defendant in

another. Accordingly, it ruled in part against the defendant3. Apparently, however

it is not entirely clear from the defendant’s brief, he challenges the adverse ruling.

Accordingly, we narrow our review to that one ruling.



        The defendant argues that he was offered an agreement that the sentence

imposed upon a guilty plea to robbery would be six to ten years. He claims that he

accepted this term and that under State v. Howington, 907 S.W.2d 403 (Tenn.

1995),4 he is entitled to enforcement. The trial court found that no such agreement

existed, and we do not disturb that finding.



        At the hearing, the defendant testified that in his negotiations with Detective

Paris, the two agreed that the defendant would plead guilty to the instant robbery,

as well as other unrelated robberies, and receive a concurrent sentence 5 on this one


        3
             The trial co urt ruled tha t:
               (a) There was an agreement that th e def end ant w ould o nly be c harg ed w ith rob bery
                    and not aggravated robbery, and
               (b) There was no agreement that the defendant receive a concurrent sentence
                    somewhere between 6 and 10 years.

        4
          Howington holds that a n agr eem ent b etwe en a p rose cuto r and the d efen dan t is
contractual in nature and is enforceable under the law of contracts. Id. at 408.

        5
             That is, this sentence was to run concurrent with the sentences for the other unrelated
robberies.

                                                    -6-
instant robbery of six to ten years. He said that the Detective was the one who

initiated this talk of a recommended sentence and the one who offered this term.

Thereafter, he stated that he accepted it.



       Again, the Detective’s account does not merely differ but is directly opposed.

He testified that no recommended sentence was agreed to and that the defendant’s

testimony is in error.



       As before, the trial court, left with a credibility determination, chose to

disbelieve the defendant and credit the testimony of the Detective. And, as before,

this Court is bound to agree with this decision in the absence of evidence or

argument preponderating against it. Finding no such convincing argument or

evidence, we affirm the trial court’s ruling.



                                   CONCLUSION


       Accordingly, we AFFIRM the judgment and sentence from the trial court.




                                           ______________________________
                                           JOHN EVERETT W ILLIAMS, Judge



CONCUR:




_______________________________
DAVID G. HAYES, Judge




_______________________________
ALAN E. GLENN, Judge



                                          -7-
