         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 9, 2007

               STATE OF TENNESSEE v. CHRISTOPHER PERRY

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 03-08489    Carolyn Wade Blackett, Judge



                  No. W2006-01935-CCA-R3-CD - Filed September 28, 2007


The appellant, Christopher Perry, was convicted of the first degree murder of Stanley Johnson, and
he received a sentence of life imprisonment. In the instant appeal, the appellant challenges the trial
court’s denial of his motion to suppress, arguing that the court should have found that his Sixth
Amendment right to counsel was violated. Upon reviewing the record and the parties’ briefs, we
affirm the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and J.C.
MCLIN , JJ., joined.

Gregory Thomas Carman, Memphis, Tennessee, for the appellant, Christopher Perry.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        After the appellant’s conviction for first degree murder, he appealed to this court, challenging
the sufficiency of the evidence supporting his conviction and the trial court’s denial of his motion
to suppress “in violation of his Fifth and Sixth Amendment rights.” State v. Christopher Perry, No.
W2004-03004-CCA-R3-CD, 2005 WL 3533338, at *1 (Tenn. Crim. App. at Jackson, Dec. 22,
2005). During the appellant’s first direct appeal, this court recounted the proof adduced at trial:

                      On the night of July 29, 2003, in the aftermath of a storm
               which downed power lines and caused a blackout in Shelby County
               for several days, the Appellant stopped at his aunt’s house at 1160
James Street in Memphis to check on his mother. After entering the
house for a short time, the Appellant returned to the front porch and
noticed that the hood of his red and white 1982 Dodge truck was up
and that someone was under the hood. The Appellant ran toward the
victim, whom he did not know, hitting the victim with a plastic porch
chair. The victim, Stanley Johnson, attempted to flee; however, the
Appellant chased after him and upon catching the victim, the two
“tussl[ed] for a while[,] and then they let each other go.” The victim
attempted to explain to the Appellant that he was not trying to steal
the truck’s radio, rather he was only checking to see if the radio
worked. Wires, however, could be observed hanging from the space
which had housed a radio. The Appellant, whose demeanor was
described as “fired-up, mad, angry,” told the victim that he was “a
walking dead man.” The Appellant then got into [his grandmother’s]
white Dodge truck and drove to his mother’s house on Castilia Street,
where he also resided.

       Upon reaching his mother’s house, the Appellant found his
brother, his girlfriend, and several friends present, as the residence
was in one of the few areas of Memphis that still had electricity.
Those present described the Appellant as acting “wild, crazy, and just
losing his mind,” as he explained to the group that he had caught
someone stealing the radio from his truck. The Appellant was
overheard stating that “he was going to finish the boy off.” He then
secured a 9 mm pistol from his room and asked his girlfriend,
Danielle Hardin, to accompany him as he returned to the James Street
address to return his mother home.

        As the Appellant was approaching James Street, he noticed a
person on the street and stopped his truck. Although the street lights
provided no illumination, the Appellant recognized the person as the
man who had earlier stolen the truck radio. As the man reached for
an object tucked beneath his arm, the Appellant ran toward the man
with his pistol, firing as he ran. The victim collapsed to the ground.
The Appellant ran back to his truck and quickly left the scene. He
then drove to the home of his friend Brian Turner, where he asked to
leave the gun to avoid getting “a weapons charge.” The Appellant
explained to Turner that someone had attempted to break into his
truck and that he had been in a fight and had fired the gun.

        The following day Turner learned that a shooting had occurred
the previous night, and he returned the gun to the Appellant’s home,
placing it in a boat near the back door. Shortly thereafter, the pistol


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               was found in the boat by a family member, and several of the
               Appellant’s friends disposed of the weapon in Martin Luther King
               Park in a location near the Mississippi River.

                       On July 29th, Darren Boyce with the Crime Scene Department
               of the Memphis Police was called to the crime scene and found the
               victim’s body in the middle of James Street on his stomach with his
               hands to the side. Four 9 mm shell casings were also found at the
               scene. On July 31st, Officer Frank Sousoulas with the Memphis
               Police Department was directed to Martin Luther King Park where he
               recovered a 9 mm Beretta semiautomatic on an embankment sloping
               toward the Mississippi River. Shelby County Medical Examiner,
               Doctor O.C. Smith, who performed an autopsy on the victim, testified
               that the victim died from a gunshot wound to the back of the head.

                       On July 30, 2003, the Appellant’s mother advised her son to
               report to the police department, at which time the Appellant gave a
               statement to Memphis Police Officer James Howell. The Appellant
               was Mirandized and signed an advice of rights form. In this
               statement the Appellant denied any responsibility for the victim’s
               death or possessing a firearm.

                       While at the dentist’s office recovering from three root canals
               on August 4, 2003, the Appellant was arrested for the murder of
               Stanley Johnson. He was again informed of his Miranda rights. On
               this date, the Appellant gave a statement to Sergeant Sims of the
               homicide bureau admitting that he did shoot the victim with a 9 mm
               pistol; however, he claimed that the shooting was accidental.

Id. at **1-2 (footnote omitted).

        On appeal, this court concluded that there was sufficient evidence to support the appellant’s
conviction and that the trial court did not err in denying the motion to suppress on Fifth Amendment
grounds. Id. at *1. However, this court found that the trial court had not properly entered findings
on the appellant’s Sixth Amendment claims. Therefore, we remanded to the trial court for further
findings. Id. On remand, the parties agreed to rely on the proof adduced at the original suppression
hearing. The trial court entered an order finding that the appellant waived his right to counsel, and,
therefore, “the statement was not taken in violation of the [appellant’s] Sixth Amendment right to
counsel.” In the instant appeal, the appellant challenges the trial court’s ruling.

                                            II. Analysis




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        In reviewing a trial court’s determinations regarding a suppression hearing, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial
court’s application of law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001). Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences
that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts
may consider the proof adduced both at the suppression hearing and at trial.” State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).

        As we earlier noted, on remand the trial court entered an order based upon the original
suppression hearing, addressing the appellant’s Sixth Amendment claims. At the suppression
hearing, the proof revealed that on the day of the appellant’s arrest, he had been at the dentist’s office
all day undergoing three root canal procedures. At 4:30 p.m., police came to the dentist office and
arrested the appellant. After the appellant’s arrest, police took the appellant to the homicide office
for questioning.

       Sergeant Sims, who was killed in a boating accident two months prior to the suppression
hearing, was the lead officer in the interview of the appellant. However, Sergeant Ernestine Davison
was present when Sergeant Sims advised the appellant of his Miranda rights as follows:

                         Christopher Shaunn Perry, you are under arrest and may be
                charged with murder in regards to this complaint. I am going to ask
                you some questions regarding the above complaint. You have the
                right to remain silent and anything you say can be used against you in
                a court of law. You have a right to have a lawyer, either of your own
                choice or court appointed if you are unable to afford one, and to talk
                with him before answering any questions and to have him with you
                during questioning if you wish. If you decide to answer questions
                now without a lawyer present, you will still have the right to stop
                answering at any time until you talk to a lawyer. Do you understand
                each of these rights I have explained to you and do you wish to make
                a statement now?

Sergeant Davison said that the appellant stated that he did wish to make a statement, and she had the
appellant to “initial the statement where these rights are embodied.” Sergeant Davison was also
present when the appellant gave and signed his statement. Sergeant Davison said that the appellant
never requested counsel or stated that he wanted his lawyer present while she was in the room. The
appellant initiated conversation and responded to questions. Additionally, Davison stated that the



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appellant did not appear to be under the influence of any substance nor did he say he was on
medication. She also stated that he did not indicate that he was in pain or was upset in any way.

        At the suppression hearing, the appellant testified that when he and Sergeant Sims were alone
he told Sergeant Sims, “I said I want my lawyer.” He maintained that Sergeant Sims told him that
“you don’t get a lawyer right now” then proceeded to question the appellant. The appellant denied
signing a waiver of his Miranda rights. During the interview the appellant admitted shooting the
victim. His statement was reduced to writing, and the appellant signed the statement.

        Additionally, our review of the trial transcript reveals that Sergeant Fitzpatrick testified that
he was present with Sergeant Sims at the beginning of the appellant’s interview.1 Sergeant
Fitzpatrick said that the appellant was advised of his Miranda rights, and he agreed to speak with the
officers. Sergeant Fitzpatrick stated that the appellant did not appear to be under the influence of
any substance, and his behavior was normal. The appellant did not indicate while Sergeant
Fitzpatrick was in the room that he wanted an attorney or that he wanted to wait on his attorney
before speaking with the officers. Sergeant Fitzpatrick maintained that he left the interview room,
and did not return, after the appellant asked to speak to Sergeant Sims alone.

        As this court has previously explained on direct appeal:

                         The right to counsel provided by Miranda under the Fifth
                  Amendment protects against coercion relative to self-incrimination,
                  thus assuring voluntariness, while the right under the Sixth
                  Amendment guarantees the right to legal assistance at any critical
                  confrontation with state officials, irrespective of coercion. In the
                  Sixth Amendment protections, if adversarial proceedings have begun,
                  the accused may not be subjected to further interrogation by
                  government authorities until counsel has been made available to him,
                  unless the accused himself initiates further communication. See
                  Michigan v. Jackson, 475 U.S. 625, 636, 106 S. Ct. 1404, 1411, 89
                  L. Ed. 2d. 631 (1986). Thus, the initial determination is whether
                  adversarial proceedings have been initiated invoking the Sixth
                  Amendment right to counsel.

        Moreover, in the appellant’s first appeal, this court stated:

                           The Sixth Amendment guarantees the accused, after the
                  initiation of formal charges, the right to rely on counsel as a medium
                  between himself and the State. Maine v. Moulton, 474 U.S. 159, 176,
                  106 S. Ct. 477, 487, 88 L. Ed. 2d 481 (1985). Unlike the Fifth
                  Amendment, under the Sixth Amendment, the accused need not make


        1
            Sergeant Fitzpatrick did not testify at the suppression hearing.

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                an unequivocal request for counsel to invoke the right. See Jackson,
                475 U.S. at 633, 106 S. Ct. at 1409. A presumption exists that the
                accused requests the services of counsel at every critical state of the
                prosecution. Id.

                        When a defendant challenges the admissibility of a confession
                based upon the State’s infringement of his Sixth Amendment right,
                the State bears the burden of showing that the appellant made a
                knowing and voluntary waiver of his right to counsel; see [Williams,
                430 U.S. at 404, 97 S. Ct. at 1242], and any doubts must be resolved
                in favor of protecting the constitutional claim. Jackson, 475 U.S. at
                633, 106 S. Ct. at 1409. In this regard, although not determinative as
                to whether a knowing waiver was provided, a specific request for
                counsel is considered “an extremely important fact in considering the
                validity of a subsequent waiver in response to police-initiated
                interrogation.” See Id. at n.6.

Perry, No. W2004-03004-CCA-R3-CD, 2005 WL 3533338, at *6.

         Initially, we are compelled to note that despite this court’s explicit instructions, the trial court
failed to make a finding of fact regarding whether adversarial proceedings had begun against the
appellant. Id. Regardless, the record reflects that the appellant was under arrest at the time he gave
his statement; however, the record does not indicate at what point an arrest warrant was issued. The
record also reflects that the indictment against the appellant was not returned until several months
after the statement was given. In any event, the trial court found that

                [b]ased on the testimony given during the hearing and the apparent
                valid Waiver of Rights and Formal Statement made by the
                [appellant], the State has met its burden of proving by a
                preponderance of the evidence that the statement given by the
                [appellant] was a knowing and voluntary waiver of his right to
                counsel in compliance with the requirements of the Sixth Amendment
                and Brewer v. Williams 430 U.S. 387 (1977).

Taken with the trial court’s statements after the suppression hearing, we conclude that the trial
court’s ruling implicitly accredited the testimony of the officers at the suppression hearing and at trial
while discrediting the testimony of the appellant that he invoked his right to counsel and that he did
not sign the Miranda waiver. The officers testified that the appellant was Mirandized prior to giving
his statement, and he waived his Miranda rights. This court has held that ordinarily a valid Miranda
waiver, such as the one that was executed in this case prior to the appellant giving a statement, serves
to waive not only the Fifth Amendment right to counsel but also the Sixth Amendment right to
counsel. State v. Hinton, 42 S.W.3d 113, 125 (Tenn. Crim. App. 2000); State v. Terrance Lewis,
No. W2003-00356-CCA-R3-CD, 2004 WL 221215, at *8 (Tenn. Crim. App. at Jackson, Jan. 30,


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2004). Accordingly, we conclude that the evidence does not preponderate against the trial court’s
ruling.

                                        III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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