         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    May 17, 2005 Session

            STATE OF TENNESSEE v. CRAIG EVERETT SHEARS

                  Direct Appeal from the Criminal Court for Knox County
                    Nos. 68041B, 76117    Richard Baumgartner, Judge



                   No. E2004-00797-CCA-R3-CD - Filed September 7, 2005


Following a jury trial, Defendant, Craig Everett Shears, was convicted of first degree felony murder
and especially aggravated robbery. Defendant was sentenced to life imprisonment for the first degree
felony murder conviction. Following a sentencing hearing, the trial court sentenced Defendant as
a Range I, standard offender, to twenty years for the especially aggravated robbery conviction, and
ordered Defendant to serve this sentence concurrently with his life sentence. In this appeal,
Defendant argues (1) that the trial court erred in denying Defendant’s motion to suppress his
statement to police officers and (2) that the evidence was insufficient to support Defendant’s
convictions. After a thorough review of the record, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Richard L. Gaines, Knoxville, Tennessee (on appeal); and Gloria S. Moore, Knoxville, Tennessee,
and Bruce E. Poston, Knoxville, Tennessee (at trial), for the appellant, Craig Everett Shears.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Randall E. Nichols, District Attorney General; G. Scott Green, Assistant District Attorney General;
and Phillip Morton, Assistant District Attorney General, for the appellee, the State of Tennessee.

                                            OPINION

       The fall semester at Knoxville College ended on December 19, 1998, and the students were
required to vacate the dormitories by early evening. Deanna Jones testified that she and her sister,
Edie, both students at Knoxville College, checked into the Expo Inn in Knoxville after their
dormitory closed. The women intended to spend the night at the motel and then fly to their home
in New Jersey the next morning.
        Deanna Jones testified that she and her sister arrived at the motel between 7:30 p.m. and 8:00
p.m and were assigned room 207. Sometime during the night, she was awakened by Defendant and
Shwan Bough, whom Deanna Jones knew from college. Mr. Bough asked Deanna Jones if he could
use the telephone to make airline reservations. Defendant waited by the door while Mr. Bough made
the call. The two men stayed about fifteen minutes. As they were leaving, Deanna Jones told Mr.
Bough to not forget his pistol which was beneath one of the beds. Mr. Bough picked up the pistol
and put it in his sock. The two men returned to Deanna Jones’ room two more times. Deanna Jones
said that on one of the visits, Mr. Bough called Dante Smith and asked for a ride.

       Edie Jones said that she went down to the motel lobby when she woke up on December 20,
1998 and asked the man behind the registration desk for some matches. The man said that he did
not have any matches and showed Edie Jones where the coffee maker was located. Edie Jones
returned to her motel room with two cups of coffee. Edie Jones said that she heard four gunshots
about twenty minutes after she returned to her room.

        Dante Smith testified that he received two telephone calls from Mr. Bough on December 20,
1998 asking Mr. Smith to pick him up. On the second call, Mr. Bough gave Mr. Smith directions
to the Expo Inn. Mr. Smith said he drove to the motel and parked at the side of the building. He saw
Mr. Bough come out of the motel’s front entrance first, and then Defendant exited the building about
four or five feet behind Mr. Bough. Mr. Bough was carrying a plastic cylinder. Mr. Bough got into
the front seat of Mr. Smith’s car, and Defendant got into the back seat. While driving in the vehicle,
according to Mr. Smith, Mr. Bough said that “he knew he shot him, but he didn’t know if he killed
him or not.” The prosecutor asked Mr. Smith “[w]hat was it that [Mr. Bough] was saying to
[Defendant] about the phone lines.” Mr. Smith replied, “If he cut the phone lines, that . . . [Mr.
Bough] did the rest.” Mr. Smith looked at Defendant in the rear view mirror, and Defendant
appeared to be scared and confused.

       Mr. Smith said that he drove the men to the Knoxville College campus and told them to get
out. However, Defendant and Mr. Bough walked to Mr. Smith’s apartment, arriving in
approximately forty-five minutes. Mr. Smith said that the cylinder Mr. Bough was carrying
contained brown envelopes stuffed with money. Defendant and Mr. Bough began counting the cash
and coins. Mr. Bough gave Mr. Smith $40.00 and asked him to hide his gun. Mr. Smith refused and
asked Mr. Bough if he was “crazy.”

        On cross-examination, Mr. Smith said that he received the second call from Mr. Bough
around 9:00 a.m. He said that Mr. Bough asked him for a ride so they could “hang out.” Mr. Smith
denied that Mr. Bough told him where to park when he arrived at the motel. Mr. Smith waited about
two minutes before Mr. Bough and Defendant came out of the motel. He said that Defendant did
not say anything during the drive to the Knoxville College campus. Mr. Smith denied driving Mr.
Bough and Defendant to Cumberland Avenue earlier in the morning.

        Officer Joe Cox with the Knoxville Police Department said that the telephone lines at the
registration counter and in two of the motel’s offices had been cut, as well as the trunk line of the


                                                 -2-
main switchboard. Four .22 caliber long rifle cartridge cases were found at the scene. The victim’s
blood was found on the drawer under the switchboard and on an invoice on top of the cash register
reflecting the rental of room 207 to Edie Jones.

        On cross-examination, Officer Cox said that none of the fingerprints lifted at the scene
matched Defendant’s. He said that the victim called 911 from one of the office telephones which
was still in operation.

        The stipulated testimony of Dr. Sandra Elkins, the Knox County medical examiner, was
offered into evidence. According to Dr. Elkins’ autopsy report, the victim was shot three times. The
victim was shot once under his right arm and twice in the back. The cause of the victim’s death was
multiple gunshot wounds and internal bleeding.

        Investigator A.J. Loeffler with the Knoxville Police Department arrived at the Expo Inn at
approximately 10:15 a.m. on December 20, 1998. When he arrived, medical personnel were loading
Mr. Oldham into an ambulance. Mr. Oldham was anxious, but coherent, and Investigator Loeffler
interviewed the victim in the ambulance. Mr. Oldham said that two African-American men
approached the registration counter in the lobby where Mr. Oldham was working. One of the men
pointed a gun at him and demanded his wallet and the money in the motel safe. Mr. Oldham
complied with his requests, and then the man shot him. Mr. Oldham said that the two men came
from room 207. Mr. Oldham provided detailed descriptions of the two assailants, and his
descriptions matched the physical appearances of Mr. Bough and Defendant. Mr. Oldham identified
the man matching Mr. Bough’s description as the shooter.

         Investigator Loeffler said that all of the motel’s offices, which included rooms 104, 105 and
106, were accessible from the lobby. The telephone lines in rooms 105 and 106 had been cut, and
the filing cabinet drawers were open. There were drops of blood beneath the telephone in room 104.
The trunk line of the motel’s main switchboard had been cut, as well as the line to the telephone in
the office area behind the registration counter. Investigator Loeffler said that a key was needed to
open the cash register without inputting a room number, and that type of transaction was reflected
as a “no sale.” A “no sale” transaction was made at 10:03 a.m.

         Investigator Loeffler took Edie and Deanna Jones to McGhee-Tyson Airport and the
Knoxville bus station to assist in identifying Mr. Bough and Defendant if the two men were
attempting to leave the Knoxville area. The bus line’s reservation summary showed that Defendant
had purchase a ticket for Chicago for December 20, 1998. Investigator Loeffler waited until the bus
left, but Defendant did not show up.

         Investigator Loeffler and Investigator Dwight Loop interviewed Defendant in Homewood,
Illinois on March 24, 1999. Defendant’s statement was tape recorded, and the tape was played to
the jury. Defendant initially said that he got drunk alone after the dormitories closed at Knoxville
College on December 19, 1998. He said he then went to the Expo Inn and fell asleep in the room
used by Edie and Deanna Jones. When he woke up the next day, a man he knew only as “Shawn”


                                                 -3-
was in the room. Defendant said he thought Shawn’s last name started with “B.” Defendant said
that he and Shawn left the motel around 9:00 a.m. with a friend of Shawn’s. Shawn and his friend
dropped Defendant off at Ridgebrook Apartments where he spent the morning gambling. The two
men returned about an hour later and joined Defendant. Defendant and Shawn flew to Chicago out
of Nashville later that day and stayed with Defendant’s father over the break. Defendant said that
he heard about the shooting at the Expo Inn some time later. Defendant denied that he took a cab
from Cumberland Avenue to Mechanicsville on December 19, 1998. Defendant stated that he was
unarmed, but that Shawn had a gun while they were at the motel. Defendant said that Shawn did not
go the registration counter while they were leaving the Expo Inn.

        Investigator Loeffler said that Defendant asked to use the bathroom at this point in the
interview. When the interview resumed, Defendant said that Mr. Bough told him that he was going
to rob the registration clerk on their way out of the motel that morning. Mr. Bough told Defendant
to stand by the front door and “watch his back.” Defendant said that Mr. Bough did not pull out his
gun until Defendant was by the front door. Mr. Bough approached the man behind the registration
counter and demanded money. The man placed several envelopes containing money on the counter,
and Mr. Bough put the money in his pocket. Defendant said that Mr. Bough began firing his gun,
and Defendant ran out of the motel after the second shot. Defendant said that he did not see Mr.
Bough cut the telephone lines in the motel’s offices.

       Mr. Smith was waiting in his vehicle for Defendant and Mr. Bough. Defendant said that Mr.
Smith did not know about the robbery. Mr. Smith asked the two men what they had done, and Mr.
Bough replied, “I just laid him down.” Defendant said he was in the back seat “just f___ wigging
out.” Mr. Smith stopped the car and told Defendant and Mr. Bough to get out.

        Defendant and Mr. Bough walked to Mr. Smith’s apartment where they stayed about five
minutes. Defendant then ran into a friend who agreed to take Defendant to Nashville to catch an
airplane to Chicago. Mr. Bough offered Defendant’s friend some money to take him with them to
Nashville. Defendant said that he and Mr. Bough caught an evening flight, but he said that he had
not seen Mr. Bough since their arrival in Chicago.

         On cross-examination, Investigator Loeffler said that both Deanna Jones and Mr. Smith in
their initial interviews told him that Mr. Bough directed Mr. Smith to park by the side of the motel
when he arrived. Investigator Loeffler said that Mr. Smith was never a suspect in the crime,
however, because nothing in Defendant’s initial statement to the police indicated that Mr. Smith
knew about the robbery. Investigator Loeffler said that he never told Mr. Smith that there was a
possibility that he could be charged with the offense.

        Investigator Loeffler said that another robbery had occurred earlier in the morning of
December 20, 1998. A cab driver was robbed after transporting three African-American men to an
area in Mechanicsville around 6:00 a.m. Investigator Loeffler said that the cab driver identified
Aaron Walker, or “Ace ,”as the gunman. Investigator Loeffler said that a telephone call was made
from the Expo Inn to Mr. Smith at 5:34 a.m.


                                                -4-
        On redirect, Investigator Loeffler said that the cab driver let his three assailants out on
Cansler Street, approximately one-half mile from the Expo Inn. The gunman took the cab driver’s
fares and cell phone, and ripped out his CB radio so that he could not call for help. The cab driver’s
cell phone was used to place several calls as follows: at 9:22 a.m., a call to a San Franciso number;
at 9:29, a local call; at 9:29, a call to a voice mail number; at 9:32, a call to Mr. Smith’s telephone
number; and at 9:35, a call to Chicago. Investigator Loeffler said that Mr. Bough was eventually
located in San Francisco.

        The defense then offered its proof. Defendant testified that he met Mr. Smith and Mr. Bough
at Knoxville College. Mr. Bough at some point stopped attending classes, however, and began to
sell marijuana. Defendant said that he went to a gathering at the dormitory director’s house after the
dormitories closed on December 19, 1998. The director drove him, Mr. Bough, Ace Walker, and
Mr. Walker’s girlfriend, Cynthia, to the Expo Inn later that evening where Mr. Walker had reserved
a room. Defendant made a reservation to fly to Chicago out of the Nashville airport because the
airline was offering a discounted fare for this flight. The group smoked marijuana and drank alcohol
until midnight when Defendant and Mr. Bough went to room 207 which had been rented by Edie and
Deanna Jones.

        Defendant said that Mr. Bough called Mr. Smith from room 207 about dawn and told Mr.
Smith to pick him, Defendant and Mr. Walker up at the motel. Mr. Smith drove the men to a parking
lot near Fort Sanders Hospital and dropped them off. Defendant asked Mr. Walker what they were
going to do, and Mr. Walker said, “don’t worry about it.” The men walked to Cumberland Avenue
where Mr. Walker flagged down a cab. Defendant and Mr. Bough got into the cab’s back seat, and
Mr. Walker sat in the front. Mr. Walker told the cab driver to pull over when they reached the
Mechanicsville area. Defendant handed the cab driver a couple of dollars, and he and Mr. Bough
got out. Mr. Walker then pulled out a gun and robbed the cab driver. Then three men ran away.

        Defendant fell asleep in a chair in Mr. Walker’s room when they returned to the Expo Inn.
Mr. Bough woke him up later and said, “let’s go.” The men walked into the lobby, and Mr. Bough
told Defendant he was going to rob the registration clerk. Defendant said that he told Mr. Bough that
he did not “want no parts [sic] of that.” Mr. Bough told him to “just stand right there.” Mr. Bough
was carrying the gun used by Mr. Walker during the earlier robbery.

        Defendant said that Mr. Bough approached the victim who was standing behind the
registration counter. The two men conversed for a couple of minutes, and then Mr. Bough pulled
out his gun. The victim jumped back and put his arms up. Mr. Bough went behind the counter and
out of Defendant’s line of vision. Defendant saw Mr. Bough return to the counter with some money
which he put in a bag. Then Mr. Bough shot the victim. The victim turned and began to run. Mr.
Bough fired three more times. Mr. Bough ran past Defendant in the front lobby and told him to
“come on.” They ran out of a side door, and Defendant saw Mr. Smith waiting for them with his
car’s engine running. Defendant got into the back seat, and Mr. Bough sat up front with Mr. Smith.
Mr. Bough said , “I think I might have killed him.” Mr. Smith became upset and angry and told
Defendant and Mr. Bough to get out of the car.


                                                 -5-
        Defendant and Mr. Bough walked to Mr. Smith’s apartment. Mr. Bough cleaned his gun
with alcohol and gave Mr. Smith a stack of twenty-dollar bills from the stolen money. Defendant
said that he saw a friend who agreed to give him a ride to Nashville in a couple of hours. The friend
warned Defendant to stay away from Mr. Bough. When the friend returned to pick up Defendant,
Mr. Bough offered him some money to take him to Nashville, and the friend agreed. Defendant said
that he did not call the police after the robbery and lied to the police during the interview in Illinois
because he was scared.

        On cross-examination, Defendant said that he did not know that the cell phone Mr. Bough
used later in the morning belonged to the cab driver. Defendant said he called his girlfriend in
Chicago with the cell phone. Defendant said that he did not see Mr. Bough carrying a knife and did
not see him cut the telephone lines in the motel’s offices.

         Mr. Smith was recalled to the stand. He admitted that Mr. Bough called him around 5:30
a.m. on December 20, 1998, but he denied that he picked anyone up from the Expo Inn at that time.
Mr. Smith said that Mr. Bough called him around 9:00 a.m. and that it took him approximately forty-
five minutes to get to the Expo Inn. He denied again that Mr. Bough directed him to park in the
parking lot at the side of the motel, but acknowledged that he told the police differently when he was
first interviewed about the crime. Mr. Smith said that he drove past the lobby’s glass windows when
he parked the car, but he said that he did not see either Mr. Bough or Defendant.

        The State called Russell V. Orr, Jr. as a rebuttal witness. Mr. Orr said that he was a cab
driver, and he picked up three African-American men between 5:30 a.m. and 6:00 a.m. The men told
him to drive around the Fort Sanders’ area while they looked for a car. They did not see the car, and
the man in the front seat told him to drive to Cansler Street. Mr. Orr stopped and told the men that
the cab fare was eight dollars. The men in the back seat handed him some money and got out of the
cab. The man in the front seat pulled out a gun and told him to “give me all your money.” The other
two men were standing by the cab’s back door and could see the robbery. The robber also took Mr.
Orr’s cell phone and pulled out his microphone. As the men walked away from the cab, Mr. Orr
heard one of the men say, “shoot him, shoot him,” but the men did not return to the cab.

II. Motion to Suppress

         Defendant argues that his statement to the police on March 24, 1999 was involuntarily made
and the result of coercion on the part of the interrogating officers. As a result, Defendant argues that
the trial court erred in denying his motion to suppress his statement.

       At the suppression hearing, Investigator Loop said that they learned that there was an
outstanding warrant for Defendant’s arrest for a traffic violation in Homewood, Illinois. Officers
from the Homewood Police Department arrested Defendant on the warrant and brought him to the
police station where Investigators Loop and Loeffler were waiting. After obtaining some
background information, Defendant was read his Miranda rights, and he stated that he understood


                                                  -6-
them. Investigator Loop said that he stressed to Defendant that he could stop the interview at any
time, and Defendant executed a written waiver of his Miranda rights. Investigator Loop denied that
the investigators made any promises in exchange for Defendant’s statement.

        Investigator Loop said that Defendant initially denied any participation in the robbery. At
that point, the following exchange occurred:

       [LOEFFLER]:            Now listen to me. You can either be a witness to this, or you
                              can be a suspect in this. We think you’re a witness, okay? I
                              don’t think this was your idea. I don’t think you’re the one
                              that planned this and said, hey, let’s go do this, okay. I don’t
                              think you’re the one that went in there with the intention of
                              doing this . . .

       [LOOP]:                Look, [Defendant], now this is . . . this is what you’ve got to
                              think about. That man down there at that motel was robbed
                              and shot . . . that motel owner. He’s a respectable business
                              person in the City of Knoxville. Now, you have some
                              information that can help us with that case, and it’s not going
                              to go away, okay. It’s not going to go away. You can either
                              help us with this, tell us what you know about it and help
                              yourself, or you can . . . you can take the consequences with
                              Shawn B. Now you just think about what a jury in Knoxville,
                              Tennessee will do to some people from L.A. or Chicago who
                              just killed a respectable business man and robbed a motel
                              down there. Now you’d better think about that, okay. Now
                              you can tell us the truth . . . we know the majority of the
                              details, okay, or we wouldn’t be up here. We’re not up here
                              just to be sightseeing. We’re up here to get the truth from
                              you. And the reason we’re coming here to talk to you is that
                              we don’t think . . . we don’t believe you were the shooter.
                              But you . . . you know what happened . . . you got caught up
                              in something that uh . . . you probably didn’t plan, you
                              probably didn’t know anything about until it happened . . .
                              until its going to happen. But now’s the time to get your butt
                              out of the fire.

       [DEFENDANT]:           Um huh.

       [LOOP]:                You understand what I’m saying.

       [DEFENDANT]:           Yeah, I understand, but . . .



                                                -7-
[LOOP]:        Naw, let’s don’t, you know . . . you know what happened in
               there and now’s the time to save yourself. This is not going
               to go away. We are not going to pack up and leave here and
               forget the whole thing . . . uh . . . now, we’ve came [sic] up
               here and we’ve been nice to you, we’ve gave [sic] you an
               opportunity to tell your story, and this is going to be the only
               opportunity that you get to tell your story. The next time, you
               will be sitting in a courtroom in front of a jury. Now you can
               help us and help yourself, or you can hang tough and you can
               be sitting in a penitentiary in a cell over from Shawn B on
               death row. Now you want to tell us what happened.

[DEFENDANT]:   Can I use the bathroom?

[LOOP]:        Do what?

[DEFENDANT]:   Can I go to the (laugh) bathroom?

[LOOP]:        We’ll let you go to the bathroom, but before we let you go to
               the bathroom, you want to tell us the truth about what
               happened?

[DEFENDANT]:   Let me go to the bathroom . . . then I’ll tell you about . . .
               man, I mean I don’t know. Just let me go to the bathroom.
               Let me make a phone call and then go to the bathroom . . .

[LOEFFLER]:    Cause after this, we’re going to go back to Knoxville if you
               don’t want to talk to us, and we’re going to get a Grand Jury
               together, and we’re going to subpoena you to come down
               there. And you can tell them the same things and say I don’t
               want to talk and that’s fine . . . but that’s not . . . that’s going
               to be [twelve] people sitting on that panel looking at you and
               you’re going to be sitting there . . . this is my story, when
               between you and me . . . I know that half of its [b___s___],
               plain and simple. Okay. You know that as well as I do.

[LOOP]:        [Defendant], I would like to go back to Knoxville and tell our
               D.A. that you’ve cooperated with us, that you did the right
               thing, and tried to make this wrong right . . . and tried to
               correct everything that’s happened and help us with this and
               . . . and get some closure on this thing. I’d like to be able to
               go back and tell them that. But if I go back and say you was
               [sic] hanging tough up here, and you know what’s going to


                                  -8-
                               happen after that . . . you’re going to go with Shawn B. Now,
                               that’s simple . . . you tell us what happened.

       [DEFENDANT]:            Um huh.

       [LOOP]:                 You understand?

       [DEFENDANT]:            I mean, I understand . . .

       Investigator Loop said that at this point Defendant reached over and turned off the tape
recorder, and Defendant was escorted to the bathroom. When he returned, Defendant was again
provided his Miranda rights, and Defendant said he understood his rights. Defendant then admitted
he had been present when Mr. Bough went into the registration office at the Expo Inn. Investigator
Loop said that Defendant told them he had spoken to his aunt, who was an attorney, when he first
returned to Chicago. Defendant described a hypothetical situation, and his aunt told him that the
person involved in the situation should tell the truth.

         Investigator Loeffler testified that he escorted Defendant to the bathroom and allowed him
to stretch his legs and get a drink. Investigator Loeffler said that Defendant did not ask to use the
telephone during the break. On redirect examination, Investigator Loeffler identified a printout of
Defendant’s prior criminal history showing that Defendant was convicted of simple possession of
marijuana in 1995, and again in 1996, and convicted of a theft offense in 1996.

        Defendant did not testify at the suppression hearing. The trial court accredited the
investigating officers’ testimony that Defendant understood his Miranda rights, that Defendant
requested and was given a break from the interview, and that he was Mirandized a second time after
the break and before he made his incriminating statements. Relying on our Supreme Court’s
decision in State v. Smith, 933 S.W.2d 450 (Tenn. 1996), the trial court denied Defendant’s motion
to suppress his statement, stating:

       Its my judgment, in this case, that merely saying to [Defendant] that we’d like to be
       able to go back and tell the District Attorney that you’ve come clean with us and told
       us the truth does not overcome [Defendant’s] voluntary will to resist making these
       statements. He knew that he had the right not to talk to these people. He knew he
       had the right to terminate the interview if he chose to do so. He knew he had the
       right to consult counsel if he chose to do so, and he chose not to do so, and I don’t
       believe that their telling him that he ought to come clean and tell them the truth about
       what happened and that they’d like to be able to tell the D.A. that he did
       cooperate–they didn’t promise him that as a result of that he would get any specific
       benefit from that, but they told him that they’d like to be able to go back and do that.
       I don’t think that’s impermissible conduct on behalf of the police department, and I
       don’t believe that changes this from a voluntary to an involuntary statement.



                                                 -9-
         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). 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 resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from
that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound
by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). 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. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

          The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself.” U. S. Const. amend. V. The
corresponding provision of the Tennessee Constitution states “[t]hat in all criminal prosecutions, the
accused shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. Our
Supreme Court has previously concluded that “the test of voluntariness for confessions under Article
1, § 9 is broader and more protective of individual rights than the test of voluntariness under the Fifth
Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

        The officers’ testimony that Defendant was read and understood his Miranda rights was not
factually disputed by Defendant. Relying on State v. Phillips, 30 S.W.3d 372 (Tenn. Crim. App.
2000), Defendant argues, however, that the investigators’ coercive tactics and promises of leniency
served to overbear his will and render his statements involuntary. Specifically, Defendant contends
that the investigators told Defendant that he could either be a witness or a suspect when there was
no question that Defendant was a suspect, that the investigators told Defendant that they already
knew many of the details of the robbery when it was clear that they did not, and that the investigators
told Defendant that if he continued to “hang tough, Defendant would end up on death row with his
co-defendant.”

       “[I]n order for a confession to be admissible, it must be ‘free and voluntary; that is, must not
be extracted by any sort of threats or violence, nor obtained by any direct or implied promises,
however, slight, nor by the exertion of any improper influence . . .’” Smith, 933 S.W.2d at 455
(quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187, 42 L. Ed. 2d 568 (1897)).
In Tennessee,

           promises of leniency by state officers do not render subsequent confessions involuntary
           per se: ‘The Fifth Amendment does not condemn all promise-induced admissions and
           confessions; it condemns only those which are compelled by promises of leniency.’”
           Smith, 933 S.W.2d at 455 (quoting [State v.] Kelly, 603 S.W.2d [726, 729 (Tenn.
           1980)](quoting Hunter v. Swenson, 372 F. Supp. 287, 300-01 (D.C. Mo. 1974)(emphasis
           added)). The critical question is “‘whether the behavior of the state’s law enforcement


                                                       -10-
           officials was such as to overbear [the defendant’s] will to resist and bring about
           confessions not freely self determined. . . .’” Id. at 728 (quoting Rogers [v. Richmond, 365
           U.S. 534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760 (1961)).

        In Smith, the defendant, who was accused of aggravated sexual battery, admitted to his
counselor at the Luton Mental Health Center that he had engaged in unlawful sexual contact with
his stepdaughter. Smith, 933 S.W.2d at 453. The defendant argued that he made his incriminating
statements in response to the counselor’s assurance that he would be extended leniency if he did not
exercise his right to avoid self-incrimination, and that he would be prosecuted if he did exercise that
right. Id. at 455. In finding that the defendant’s statements were not “compelled by impermissible
threats or promises of leniency so as to render them involuntary,” the Supreme Court noted that
“[a]dvice to an individual concerning the consequences of a refusal to cooperate is not
objectionable,” and stated that “‘[t]ruthful statements about [a defendant’s] predicament are not the
type of ‘coercion’ that threatens to render a statement involuntary.’” Id. at 456. Id. at 456 (quoting
United States v. Pelton, 835 F. 2d 1067, 1073 (4th Cir. 1987). Based on the circumstances presented
in the case, the Supreme Court concluded that the defendant’s statements “were not ‘compelled’ in
violation of the Fifth Amendment or Article I, § 9.” Id.

         In Phillips, however, this Court found that the line of questioning employed by the
investigators, unlike the questions presented in Smith, impermissibly “crossed the line.” Phillips,
30 S.W.3d at 377. The defendant in Phillips was facing allegations of sexual misconduct, and
investigators from the Department of Children’s Services interviewed him in connection with the
allegations. Although he denied the allegations at first, the defendant became increasingly equivocal
as the interview progressed, and he finally conceded that he had engaged in sexual misconduct with
one of his stepdaughters. The transcript of the interview indicated that one of the investigators told
the defendant that they had DNA evidence linking the defendant to the alleged crimes when, in fact,
no DNA sample had been taken; that the investigators requested the defendant to confess on
numerous occasions in order to avoid prosecution; and that the investigators “insisted that a full
confession was necessary in order for him and his stepdaughter to secure treatment.” Id., at 375.
Based on the facts presented in this case, this Court founds that the evidence revealed “(1)
misrepresentations by an investigator; (2) numerous steadfast denials by the defendant; (3)
statements that law enforcement officials would be involved if defendant did not confess; and (4)
promises of treatment for the defendant and his stepdaughter only if he fully confessed. Id. at 377.
Based on the circumstances presented, this Court concluded that there was sufficient coercion and
promises of leniency to overbear the defendant’s will to resist. Id.

        In both Smith and Phillips, unlike the instant case, the defendants’ statements were made in
a non-custodial situation which did not require the provision of Miranda warnings. See Smith, 933
S.W.2d at 454; Phillips, 30 S.W.3d at 376. In the case sub judice, Defendant was read his Miranda
rights, and Defendant signed the written waiver of those rights. Investigator Loop testified that
Defendant, who was a college student at the time of the offenses, understood his Miranda rights.




                                                 -11-
         At the time of the interview, the investigators had detailed physical descriptions from the
victim which matched Defendant’s and Mr. Bough’s physical appearances. The victim told the
police officers that the two assailants came from Room 207 before they approached the registration
desk. Edie and Deanna Jones said Defendant and Mr. Bough had been in their room on the morning
of the robbery. The victim identified the man matching Mr. Bough’s description as the shooter. We
cannot conclude that Investigator Loop’s comment that he knew “the majority of the details” of the
offenses misrepresented the extent of his knowledge at that point.

        What was unknown to the investigators at the time of Defendant’s interview was the nature
of the role Defendant played in the commission of the offenses. Based on a careful reading of the
record, we conclude that the investigators’ statements concerning the fact that Defendant might be
a suspect, the potential for a grand jury investigation, and the possibility that Defendant would be
prosecuted along with the co-defendant does not render Defendant’s subsequent statement
involuntary. See Smith, 933 S.W.2d at 456.

        Prior to making his statement, Defendant asked for and was given a break from the interview.
Investigator Loeffler said that Defendant went to the bathroom, got a drink, and “stretched his legs.”
Defendant was read his Miranda rights again when the interview resumed. Although he initially said
that he wanted to use the telephone, Defendant did not repeat this request during the break. The
interview lasted approximately one and one-half hours.

        Based on the totality of the circumstances surrounding Defendant’s statement, we conclude
that his statement were not “compelled” in violation of the Fifth Amendment of the United States
Constitution or Article I, § 9 of the Tennessee Constitution.

        Defendant also argued in his brief that the trial court erred in denying his motion to suppress
because the investigating officers did not stop the interview after Defendant requested an attorney.
At the hearing on Defendant’s motion for new trial, the trial court permitted defense counsel to make
an offer of proof on the record concerning Defendant’s allegation that his request for an attorney
during the interview was not honored. Defendant testified that after the tape recorder was turned off,
Defendant told the investigators that he wanted to call an attorney, and they told him that “all deals
are off” if he did. Defendant said that the investigators told him he would only be a witness, not a
suspect, if Defendant told them what he knew. Following this conversation, Defendant said that the
tape recorder was turned back on, and Defendant made his incriminating statements under the belief
that he would not be charged with the crimes.

       The trial court denied Defendant’s motion for new trial, stating that it would not consider
evidence beyond which was not presented at the suppression hearing. “[I]n evaluating the
correctness of a trial court’s ruling on a pretrial motion to suppress, appellate courts may [only]
consider the proof adduced both at the suppression hearing and at trial.” State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998). Defendant is not entitled to relief on this issue.




                                                 -12-
III. Sufficiency of the Evidence

        Defendant does not contend that Mr. Bough did not rob and kill Mr. Oldham. Defendant
argues, however, that the evidence is insufficient to support his convictions of especially aggravated
robbery and first degree felony murder under a theory of criminal responsibility because the proof
did not establish that he intended to commit robbery, the underlying felony. Defendant argues that
at no time did he intend to commit a crime, that he ran away from the motel office as soon as he
heard gunshots, and that he did not have any contact with Mr. Bough after the two men flew to
Chicago on the day of the offenses.

        When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all 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 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

         Felony murder, as pertinent here, is the killing of another in the perpetration of a robbery.
Tenn. Code Ann. § 39-13-303(a)(2). Especially aggravated robbery is a robbery committed with a
deadly weapon during which the victim suffers serious bodily injury. Id. § 39-13-403(a). “A
defendant is criminally responsible as a party to an offense and may be charged with commission of
the offense where the offense is committed by another person for whom the defendant is criminally
responsible.” State v. Howard, 30 S.W.3d 271, 276 (Tenn. 2000) (citing Tenn. Code Ann. § 39-11-
401). “A person is criminally responsible for an offense committed by the conduct of another if .
. . [a]cting with intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person
to commit the offense.” Id. § 39-11-402(2).

        “Presence or companionship with the perpetrator of the felony before and after the
commission of the offense are circumstances from which one’s participation in the crime may be
inferred.” State v. Jones, 15 S.W.3d 880, 890 (Tenn. Crim. App. 1999). It is not necessary for the
criminally responsible defendant to take a physical part in the crime.




                                                  -13-
        Viewing the evidence in a light most favorable to the State, the proof showed that Defendant
and Mr. Bough accompanied Mr. Walker in the early morning hours of December 20, 1998 when
Mr. Walker robbed Mr. Orr. The three men returned to the Expo Inn together. Later that morning,
Mr. Bough woke Defendant up and said “let’s go.” Defendant and Mr. Bough walked down one
flight of stairs to the motel lobby. Mr. Bough told Defendant he was going to rob the registration
clerk and asked Defendant to “watch his back.” After Mr. Bough shot Mr. Oldham, the two men
exited the Expo Inn and left the premises in Mr. Smith’s car. Mr. Smith said that both men counted
the money taken in the robbery while they were at his apartment. Later that afternoon, the two men
traveled to the Nashville airport and flew together to Chicago.

       Based on a thorough review of the record, we conclude that a rational trier of fact could have
found beyond a reasonable doubt that a robbery and killing was committed by Mr. Bough, that
Defendant was a party to the commission of the crimes, and that Defendant was criminally
responsible for Mr. Bough’s conduct. Defendant is not entitled to relief on this issue.

                                         CONCLUSION

       After a thorough review of the record, the judgments of the trial court are affirmed.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




                                                -14-
