State of Tennessee v. Dexter Cox

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 5, 2013 Session

STATE OF TENNESSEE v. DEXTER COX

Appeal from the Criminal Court for Shelby County
No. 08-06537 Chris Craft, Judge

No. W2012-00886-CCA-R3-CD - Filed September 30, 2013

A Shelby County grand jury indicted Appellant, Dexter Cox, for first degree premeditated
murder in September of 2008. After a jury trial, Appellant was found guilty of first degree
murder, for which the trial court sentenced Appellant to life without the possibility of parole.
The sentence was ordered to be served consecutively to a previously imposed life sentence.
Appellant challenges his conviction, claiming that his confession was the product of an
illegal arrest and was involuntary. Following our review, we affirm the judgmens of the trial
court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Dexter Cox.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Dean Decandia, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

Appellant was charged in separate indictments for his involvement in the unrelated
murders of three individuals, including the victim in this case, Gwendolyn Cherry. He was
also charged with the murder of Memphis police officer Lieutenant Ed Vidulich and a third
person, Herbert Wooten. See State v. Dexter Cox, No. W2011-01429-CCA-R3-CD, 2013
WL 118714, at *1 (Tenn. Crim. App., at Jackson, Jan. 9, 2013), perm. app. denied, (Tenn.
June 19, 2013) (“Dexter Cox I”). Appellant was developed first as a suspect in the Vidulich
murder, which led to the discovery of his involvement in the murders of Wooten and Cherry.
Prior to trial, Appellant filed a motion to suppress his confession to the murder of Gwendolyn
Cherry.1

Facts from Hearing on Motion to Suppress

The facts from the hearing on the motion to suppress are taken from Appellant’s
appeal from the conviction for the Wooten murder and are as follows:

Sergeant William Merritt testified that he was a homicide investigator
with the Memphis Police Department. He was the lead investigator in the
present case as well as the case involving Ms. Cherry, who had been murdered
in December 2007. Both homicides occurred in the Frayser area of Memphis,
and a .40 caliber handgun was the murder weapon in both cases. Forensic
testing from the Tennessee Bureau of Investigation (“TBI”) confirmed that the
same firearm was used in both murders. Until January 2008, Sergeant Merritt
had not developed a suspect in the murders.

In the early morning hours of January 28, 2008, Sergeant Merritt
received a call from his supervisor to respond to the home of Lieutenant
Vidulich, who had been shot to death at his home. Sergeant Merritt became
the lead investigator in that case as well. Lieutenant Vidulich lived on Shiloh
Street, also in the Frayser area of Memphis. Sergeant Merritt learned that
police discovered Lieutenant Vidulich’s personal vehicle in flames on another
street in the neighborhood. Officers checked the vehicle’s registration, which
led police to the murdered officer’s home.

At Lieutenant Vidulich’s home, Sergeant Merritt discovered three
empty gun boxes inside a bedroom closet. He then learned that in July 2007,
Lieutenant Vidulich had filed a police report indicating that his home had been
burglarized while he was out of town. A few days prior to his death,
Lieutenant Vidulich supplied the police with supplemental information about
a potential suspect in the burglary. He contacted Officer Patrick [FN1], who
took the original report in 2007, and told Officer Patrick that an individual who
identified himself as “Tony Smith” claimed to have information regarding the

1
The trial court considered the motion to suppress in a consolidated hearing with the two other murder charges
being faced by Appellant. In at least one other case, Appellant has appealed the denial of the motion to suppress, raising
similar, if not identical issues to those raised herein. See Dexter Cox I, 2013 W L 118714, at *1.

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burglary. When Officer Patrick arrived at Lieutenant Vidulich’s home to
obtain the supplemental information, “Tony Smith” was present and was
interviewed by Officer Patrick. “Tony Smith” indicated that he worked at
Colton’s Steakhouse, that he lived on Haywood Avenue, and that he was a
student at Frayser High School. He also gave the officers a cellular telephone
number where he could be reached.

FN1. Several officers are referenced by last name only. Those
officers did not testify; thus, their first names are unknown.

During the investigation of Lieutenant Vidulich’s murder, Sergeant
Merritt asked Sergeant Eddie Bass [FN2] to research “Tony Smith” so that
officers could question him further. Sergeant Bass canvassed the
neighborhood where “Tony Smith” supposedly lived. He also visited Frayser
High School on January 31, 2008, where he learned that an individual named
Dexter Cox (hereinafter “[A]ppellant”) had been arrested the previous day for
possession of a weapon and firing a weapon across the street from the school.
Based on this information, Sergeant Merritt retrieved the information on
[A]ppellant’s arrest and learned the circumstances of the arrest. After learning
the serial number, make, and model of the weapon involved in [A]ppellant’s
arrest, Sergeant Merritt contacted Sergeant Collins and asked him to check the
serial numbers on the empty gun boxes located in Lieutenant Vidulich’s home.
The serial number on a box that had contained a SIG Sauer 9 millimeter
handgun matched the serial number listed on [A]ppellant’s arrest warrant as
the weapon he illegally possessed and fired.

FN2. Sergeant Bass has since been promoted to the rank of
lieutenant.

While at Frayser High School, Sergeant Bass telephoned the number
that “Tony Smith” had given to Officer Patrick and learned that the number
belonged to [A]ppellant’s mother. Sergeant Bass asked Officer Patrick to meet
him at Frayser High School, where Officer Patrick viewed a photograph of
appellant and identified him as “Tony Smith.” Sergeant Merritt learned that
the street address “Tony Smith” had provided to Officer Patrick during the
interview was fictitious, but [A]ppellant had provided officers with a
legitimate home address on Haywood Avenue when he was arrested the
previous day.

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 Based upon the new information that [A]ppellant and “Tony Smith”
were the same individual, the officers attempted to locate [A]ppellant. They
learned that he was due to appear in general sessions court on the weapons
charge that day, January 31st . [FN3] Sergeant Merritt, Lieutenant Mark Miller,
and other officers went to general sessions court and located [A]ppellant
standing in a hall near the courtroom. They escorted [A]ppellant upstairs to
the homicide bureau and placed him in a large interview room at
approximately 10:15 or 10:20 a.m. Appellant was calm and cooperative and
did not appear to be intoxicated. He did not invoke his right to remain silent
or demand a lawyer. After reading appellant his rights, Chief Toney
Armstrong [FN4] and Lieutenant Barry Hanks conducted the interview of
[A]ppellant while Sergeant Merritt continued with other aspects of the
investigation.

FN3. During oral arguments before this court on August 7,
2012, the parties agreed that [A]ppellant had been released on
bond following his arrest on January 30, 2008.

FN4. Between the date of the hearing on [A]ppellant’s motion
to suppress and the date of his trial, Chief Armstrong was
promoted to Director of the Memphis Police Department. For
consistency, we refer to him as Chief Armstrong throughout the
opinion rather than Chief at the suppression hearing and
Director at the trial.

Sergeant Merritt learned that on the previous day, [A]ppellant had been
arrested at the home of Dondriel Cunningham at 1515 Dalewood Avenue.
Around the same time officers were interviewing [A]ppellant, Sergeant Merritt
and Sergeant Quinn interviewed Mr. Cunningham. Mr. Cunningham told the
officers that [A]ppellant visited his home and offered to sell him the 9
millimeter SIG Sauer. Mr. Cunningham informed [A]ppellant that he was not
interested in purchasing a weapon at that time. Mr. Cunningham and
[A]ppellant then went to [A]ppellant’s home, where [A]ppellant showed him
three other weapons he had for sale, including two .40 caliber semiautomatic
handguns and a. 38 caliber revolver. The other weapons were concealed in an
orange newspaper bag and further hidden inside a vent in the wall. Mr.
Cunningham again informed [A]ppellant that he was not interested in
purchasing a weapon. Appellant replaced the weapons where they were
hidden, and Mr. Cunningham and [A]ppellant then returned to Mr.
Cunningham’s residence. At Mr. Cunningham's residence, they went into the

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back yard, and [A]ppellant fired a shot into the air with the 9 millimeter SIG
Sauer. A few moments later, a police officer from Frayser High School
arrived, arrested [A]ppellant, and took him into custody.

By the time Sergeants Merritt and Quinn finished interviewing Mr.
Cunningham, Chief Armstrong and Lieutenant Hanks had completed an
interview with [A]ppellant but did not have a formal statement from him yet.
[FN5] Sergeant Merritt learned that [A]ppellant’s rendition of the facts was
in conflict with Mr. Cunningham’s statement. Appellant claimed that he and
Mr. Cunningham found the weapon while walking through a “cut,” and one of
them kicked a bag that contained the gun.

FN5. The record reflects that [A]ppellant gave three formal
statements: (1) a written statement regarding his involvement in
the burglary of Lieutenant Vidulich’s home and theft of
property; (2) a written statement confessing to the murder of
Lieutenant Vidulich; and (3) a tape-recorded statement
confessing to the murder of Herbert Wooten.

A few hours later, Sergeant Merritt and Lieutenant Bass spoke with
[A]ppellant. Although Sergeant Merritt did not think it was necessary to
execute a second rights waiver form, he nonetheless advised [A]ppellant of his
rights again orally and in writing. Appellant did not invoke his right to remain
silent or demand an attorney. He did not express any threats or promises made
by other police officers earlier that day or complain of any coercion. Appellant
gave his first written statement and described the version of the events as he
first told officers earlier in the day. Sergeant Merritt confronted [A]ppellant
with the fact that the 9 millimeter handgun he possessed and fired had been
taken from Lieutenant Vidulich’s home, but Appellant maintained the story
about finding the gun in a “cut.” Sergeant Merritt explained to [A]ppellant
that he would be taken into custody on potential charges of theft of property
and aggravated burglary. Appellant informed Sergeant Merritt that he was
tired and wanted to get some sleep. Around 10:30 p.m., he requested to be
booked into jail so he could rest. On the way to the intake area, [A]ppellant
asked what the charges were. Sergeant Merritt explained that he was not
charged with anything at that time but that he was being booked on a “48–hour
hold for aggravated burglary and theft of property.” Appellant asked where he
was going to serve his sentence and asked if Sergeant Merritt thought he might
be charged with voluntary manslaughter. In response, Sergeant Merritt told
[A]ppellant, “[I]f there’s some stuff you want to talk about now about

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Lieutenant Vidulich’s death [,] we can go back up there and we can go on and
get all of this out.” Appellant told him, “[N]o . . . let me sleep. I want to get
some sleep . . . in the morning, I'll tell y’all the truth. I'll tell you everything
that happened.”

On the morning of February 1, 2008, Sergeant Merritt again
interviewed [A]ppellant at the homicide bureau. He advised [A]ppellant of his
rights in printed form. Appellant changed aspects of his first statement
concerning the burglary and theft of Lieutenant Vidulich’s gun, which caused
officers to temporarily pause the interview so they could obtain statements
from various witnesses he mentioned, including potential alibi witnesses.
Officers gave [A]ppellant a snack, a drink, and a restroom break. He took a
two- to three-hour nap during that time. Later that evening, Detective Paul
Sherman arrived and began an interview with [A]ppellant that resulted in
[A]ppellant’s second written statement. Chief Armstrong joined them.
Sergeant Merritt began observing the interview via closed circuit television
around 9:30 p.m. He did not observe [A]ppellant ask for an attorney, invoke
his right to remain silent, or hear any promises or threats against [A]ppellant.

On February 21, 2008, Sergeant Merritt met with Barbara Wooten,
widow of Herbert Wooten, the victim in this case. He showed Mrs. Wooten
a photograph array from which she positively identified [A]ppellant as her
husband’s killer.

On cross-examination, Sergeant Merritt acknowledged that officers
believed that Lieutenant Vidulich’s guns had been stolen because the boxes
that would have contained them were empty. He did not check Lieutenant
Vidulich’s residence in Florida or check with his wife to determine if the
firearms were located elsewhere. Sergeant Merritt explained the concept of
a “48–hour hold,” stating, “It’s a form that we fill out that’s reviewed by a
judicial commissioner that allows us to detain a person if there’s probable
cause to do so to continue an investigation.” He further explained that the
requirement was relatively new, having been in effect for a only a few years.
Previously, officers could hold someone for seventy-two hours without
appearing before a magistrate. Sergeant Merritt clarified that with regard to
the Vidulich case, [A]ppellant gave a written statement to him and Sergeant
Bass on the first day and a second written statement to Chief Armstrong and
Detective Sherman on the second day. He also gave a third statement, the
tape-recorded statement regarding the Wooten and Cherry cases.

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 Chief Toney Armstrong, deputy chief over Division One Uniform
Patrol, testified that he was assigned to the homicide division in 2008 and was
involved in the investigation involving the death of Lieutenant Vidulich. After
[A]ppellant was taken into custody outside of general sessions court, Chief
Armstrong advised [A]ppellant of his rights. They interviewed [A]ppellant
regarding how he came into possession of the pistol that belonged to
Lieutenant Vidulich. Appellant stated that he and a friend had found the
weapon in a bag while they were walking through a field. Chief Armstrong
also asked [A]ppellant about Lieutenant Vidulich’s vehicle, and [A]ppellant
indicated that he had seen the vehicle burning. Appellant never indicated that
he wanted a lawyer or wanted to invoke his right to remain silent. Chief
Armstrong did not threaten, coerce, or make any promises to induce
[A]ppellant to give the statements.

On February 1, 2008, Chief Armstrong watched an interview, via closed
circuit television, of [A]ppellant conducted by Detective Sherman in which
appellant admitted to killing Lieutenant Vidulich. Chief Armstrong entered
the room at the conclusion of the interview and informed [A]ppellant that they
needed to take a formal statement at that point. Appellant initialed all ten
pages of the resulting type-written statement and signed it.

At the conclusion of the interview during which [A]ppellant confessed,
Chief Armstrong made him aware that he was suspected in two other murder
investigations because they had ballistics reports matching the murder weapon
in Lieutenant Vidulich’s case with two other murder victims. Because of the
late hour, Chief Armstrong taped the next interview and had the tape
transcribed, rather than conducting a formal question-answer type-written
interview. The subsequent interview, which resulted in [A]ppellant’s third
statement to law enforcement, began at approximately 12:30 a.m. on February
2, 2008. Appellant never indicated that he was tired or wanted to cease the
interview. He remained cooperative the entire time.

On cross-examination, Chief Armstrong recalled that after [A]ppellant
confessed to killing Lieutenant Vidulich, he became very emotional and started
crying. Appellant told Chief Armstrong “that he was pretty much relieved
because he felt that he was dangerous.” Appellant said “that he felt powerful
with a gun in his hand. . . . He couldn’t explain the feeling that he [got] when
[he killed] somebody and that he really needed some help.” At the end of the
question-answer transcribed interview, Chief Armstrong asked [A]ppellant if
he gave the statement freely and voluntarily without any threats, promises, or

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coercion. Appellant answered that “an officer told me that if I tell the truth [,]
he would help me get a lighter charge than constantly lying.” Chief Armstrong
acknowledged that the ballistics report from the TBI was available prior to the
interview during which [A]ppellant confessed to killing Lieutenant Vidulich,
but they did not inform him of the ballistics match until he had confessed. The
Vidulich interview ended at 11:50 p.m., and the Wooten/Cherry interview
began at 12:30 a.m.

Appellant testified that he first told Sergeant Merritt that he and Mr.
Cunningham found the weapon in a “cut” but that Sergeant Merritt “forced”
him to “come up with another story because [their] statement[s] didn’t match
up.” He then said he was alone when he found the gun. He testified that
Sergeant Merritt and Chief Armstrong tried to persuade him to confess to the
murder of Lieutenant Vidulich during the first day of questioning, but he told
them he was tired and wanted to go to sleep. He denied having a conversation
with Sergeant Merritt about wanting to give a statement the next day or about
voluntary manslaughter.

Appellant estimated that he was brought upstairs to the homicide bureau
on February 1, 2008, between 9:00 a.m. and 10:00 a.m. He claimed that
because he did not immediately confess to the Vidulich murder, Chief
Armstrong and Detective Sherman took his family into custody. He said
officers threatened to “lock up” his mother and stepfather and send his siblings
to child services. He said officers handcuffed his parents. Appellant testified
that officers tried to get him to say that his stepfather was in possession of
weapons and threatened to arrest his stepfather for being a felon in possession
of a firearm if [A]ppellant did not confess. He said that officers eventually
arrested his stepfather, charged him with two counts of being a felon in
possession of a firearm, and sent him to a federal facility. He also said his
mother was handcuffed, and officers threatened to arrest her for allowing
prohibited firearms in her home. Appellant said he was told that his parents
would be released if he confessed.

Appellant explained that when he was alone with Detective Sherman,
Detective Sherman told him that the 48-hour hold was about to expire and that
if he confessed to the Vidulich murder, Detective Sherman would charge him
with a lesser-included offense of murder. He said that he confessed to secure
the release of his parents and to insure he would be charged with a lesser
offense.

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 On cross-examination, [A]ppellant explained that Sergeant Merritt
“forced” him to change his story by telling him that the statements did not
match up and that he needed to tell the truth. He claimed that Sergeant Merritt
“was throwing the death penalty in [his] face” because an officer had been
murdered, and [A]ppellant was in possession of the officer’s handgun. He
further stated that on the first night of questioning when he told Sergeant
Merritt that he did not want to talk anymore, he meant he did not ever want to
talk to them again. He said he did not tell officers he wanted to talk to them
the following day, and they just retrieved him from downstairs the next
morning. He acknowledged that he nonetheless signed waiver of rights forms
the following day.

The State called Sergeant Merritt on rebuttal. He confirmed that during
[A]ppellant’s first statement, he mentioned his mother, stepfather, and brother
as alibi witnesses, and Sergeant Merritt wanted to speak with them. Sergeant
Collins had already been dispatched to secure [A]ppellant’s residence because
they had learned that three handguns were hidden there. Officers were in the
process of obtaining consent to search but decided that a search warrant would
be more appropriate. In the meantime, [A]ppellant’s family members were
escorted to the homicide bureau, but they came voluntarily. They were not
handcuffed. All three family members spoke to Sergeant Merritt willingly and
gave statements. The family members then left. Sergeant Merritt confirmed
that they were free to leave the entire time.

Sergeant Merritt recalled that the formal Vidulich statement,
[A]ppellant’s second statement, began around 10:30 p.m. He thought that
[A]ppellant’s third statement, the result of the Wooten/Cherry tape-recorded
interview, ended between 12:30 and 12:50 a.m. During the tape-recorded
interview, [A]ppellant told officers that he threw the guns in the Mississippi
River but later indicated that the weapons were located in a residence on
Haywood Avenue, not far from [A]ppellant’s home. Appellant said that he
and his stepfather moved the guns. Eric Williams, [A]ppellant’s stepfather,
was arrested later that morning at M & M Bail Bond Company for public
intoxication and driving on a suspended license. He was subsequently charged
with two counts of being a convicted felon in possession of a handgun.

The trial court denied [A]ppellant’s motion to suppress, finding that
[A]ppellant’s statements were freely and voluntarily made and were
constitutionally obtained.

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Dexter Cox I, 2013 WL 118714, at *1-6.

Facts from Trial

This case involves the murder of Gwendolyn Cherry on October 9, 2007. Officer
Roger Barbey responded to a call of “shots fired man down” at 3345 Riney Street. Upon
arrival, the victim was found lying in the carport. She was bleeding and unresponsive. There
were bullet holes in a car near the victim as well as in the brick wall behind the victim.

According to the medical examiner, Ms. Cherry died of multiple gunshot wounds.
She sustained three gunshot wounds to the torso, one to the right forearm, and a graze wound
to the back of the left upper arm. At least two of the wounds caused fatal injuries.

When crime scene investigator Demar Wells arrived at the scene, he took note of
several bullet fragments in the area around the victim as well as a bullet hole in a car parked
near the victim. In all, Investigator Wells collected eleven bullet fragments and two spent
projectiles from the scene. Investigator Roger Wheeler assisted in processing the scene of
the crime. Investigator Wheeler prepared the crime scene sketch, documenting several
“bullet strikes” on the brick wall of the house located behind the victim. He collected two
shell casings and one spent round.

Officer Joe Giannini examined the car in the carport at the scene of the crime. There
were two bullet strikes and two bullet holes on the car. Three bullet fragments were taken
from the area in and around the car. A DNA sample was also taken from the hood of the car.

Three months later, in January of 2008, Appellant went to the home of Dondriel
Cunningham. Appellant was “beating on [the] door and ringing the doorbell” and “had a gun
for sale.” Mr. Cunningham accompanied Appellant to his house where Appellant got out
several guns, including “a 9 . . . two 40’s, a 38 and a sawed-off shotgun” from an air
conditioning vent in the bathroom. The guns were inside an “orange newspaper bag.” Mr.
Cunningham contracted with Appellant to buy the 9 mm weapon for $150. Mr. Cunningham
only had $100 on his person, so Appellant accompanied him back to his house to get the rest
of the money. When the two arrived at Mr. Cunningham’s house, Appellant decided to test
fire the weapon. He fired it into the air twice. An officer at nearby Frayser High School
heard the shots, came across the street, and confiscated the weapon. Appellant was arrested.
Mr. Cunningham cooperated with authorities by both giving a statement and identifying
Appellant in a photographic lineup.

The bullet fragments from the scene were eventually sent to the TBI for ballistic
testing. Due to evidence discovered during investigation of the three murders, the firearm

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confiscated by the officer at Appellant’s arrest was taken to the crime lab for comparison
with the bullet fragments from the Cherry murder.

A search warrant was executed for Appellant’s residence. No guns were found in the
air conditioning vents. However, police recovered an orange plastic bag from the master
bathroom sink.

During an interview conducted by Detective Paul Sherman and Chief Armstrong,
Appellant “basically admitted to being the person responsible for shooting and killing Ms.
Cherry.” Appellant stated that the victim asked for change; he told her he did not have any
change. The victim cursed Appellant, calling him a “punk-ass bitch” and he shot her. The
victim “took off running,” and Appellant “hunted that bitch down and continued to shoot
her.” Appellant explained to police that he “felt empowered when he put a gun in his hand,
that when he pulled the trigger and killed somebody, he got what he described as a rush.”
After the interview, a recorded formal interview was conducted. During the recording, Chief
Armstrong described Appellant as “guarded” and “careful” with his word choices. Appellant
told authorities that the murder weapon was located on Haywood Street near his house.

Police searched for the murder weapon, a .40 caliber Sigma semi-automatic handgun.
It was found in the backyard of a residence on Haywood buried under some leaves beneath
a toy four-wheeler that was covered with a blue tarp. A revolver was also found on the tire
of a car parked under the carport. Ballistics evidence revealed that nine of the twenty-four
bullet fragments, bullets, cores, and cases recovered from the scene of the Cherry murder had
been fired through the .40 caliber weapon.

The jury convicted Appellant of first degree premeditated murder. The trial court
imposed a sentence of life in prison without the possibility of parole. The trial court ordered
the sentence to be served consecutively to sentences in case numbers 08-06538 and 09-
01393. After the denial of a motion for new trial, Appellant appeals.

Analysis

On appeal, Appellant argues that the trial court erred in denying the motion to
suppress because the statement was “the result of an illegal arrest” and the statement “was
not voluntar[ily] made as it was the product of promises of leniency and threats of death.”

This Court has already determined in Dexter Cox I that there was probable cause to
arrest Appellant. This Court stated:

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 We must first determine the nature of the interaction between [A]ppellant and
law enforcement. Officer Merritt testified that at the time [A]ppellant was
booked into jail, he was not being charged with anything but was being
detained on “48-hour hold for aggravated burglary and theft of property.” The
Memphis Police Department’s policy of detaining suspects pursuant to a “48-
hour” hold has been criticized by this court. See State v. Courtney Bishop, No.
W2010-01207-CCA-R3-CD, 2012 WL 938969, at *7 (Tenn. Crim. App.[, at
Jackson,] March 14, 2012) (“This court has repeatedly noted the illegality of
the procedure and warned the Memphis Police Department specifically against
its use.”), perm. app. granted, No. W2010-01207-SC-R11-CD (Tenn. Aug. 12,
2012). As in Courtney Bishop, the record in this case “establishes that, despite
the officer’s insistence that the defendant was merely to be held for 48 hours,
the seizure in this case was a full-scale arrest.” Id. Accordingly, it follows
that [A]ppellant’s warrantless arrest must have been supported by probable
cause.

Appellant was detained or arrested on the charges of theft of Lieutenant
Vidulich’s handguns and aggravated burglary of his home. Tennessee law
recognizes that “the possession of recently stolen goods, if not satisfactorily
explained, gives rise to the inference that the possessor has stolen them, Bush
v. State, 541 S.W.2d 391 (Tenn. 1976); State v. Land, 681 S.W.2d 589, 591
(Tenn. Crim. App. 1984), and has committed the burglary antecedent to the
theft. State v. Hamilton, 628 S.W.2d 742, 746 (Tenn. Crim. App. 1981)
(citations omitted).” State v. Andrew William Byers and Larry Wayne Key,
No. 01C01-9601-CC-00002, 1997 WL 488621, at *5 (Tenn. Crim. App.[, at
Nashville,] Aug. 22, 1997). Moreover, [A]ppellant changed his testimony
about how he came into possession of the gun, and officers discovered that
[A]ppellant was actually the informant “Tony Smith” who had been at
Lieutenant Vidulich’s house and claimed to have information about the theft
and burglary. In addition, Mr. Cunningham testified that [A]ppellant tried to
sell the stolen property to him. Thus, officers clearly had probable cause to
arrest [A]ppellant for theft of property and aggravated burglary before he
confessed to the murder of Herbert Wooten [and Gwendolyn Cherry]. The
trial court properly declined to exclude [A]ppellant’s subsequent confession
to the murder of the victim on the basis of an allegedly illegal arrest.

Dexter Cox I, 2013 WL 118714, at *10-11.

Because there was probable cause to arrest Appellant, we must next determine if the
statements he made to police were voluntary. Appellant raised this identical issue in Dexter

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Cox I. Again in this appeal, Appellant insists that his statements were procured through
promises of leniency and threats of death. In this appeal, as in Dexter Cox I, Appellant does
not contest that the waiver of his Miranda rights was made freely, voluntarily, and
intelligently. See Dexter Cox I, 2013 WL 118714, at *12. Instead, Appellant claims that
coercion by promises of leniency and threats of death prompted his statements.

As noted in Dexter Cox I, at the hearing on the motion to suppress, the testimony
showed that Appellant made a total of five statements to police over the course of three days.
During this time period, he executed two advice of rights forms. Additionally, three of
Appellant’s statements actually contained a waiver of rights. Appellant was described as
cooperative during the process and did not at any time indicate that he wished to speak with
an attorney or invoke his right to remain silent. The police officers and investigators that
testified at the hearing on the motion to suppress denied that any threats or promises were
made to Appellant throughout the process. In fact, the only testimony to support Appellant’s
assertion that he was threatened or promised anything was his own self-serving testimony and
a short comment at the end of his confession to killing Vidulich wherein he claimed he only
confessed because the police threatened to lock up his family. The trial court accredited the
testimony of the officers and specifically commented that Appellant “appeared less than
credible.” Further, there was testimony that Appellant’s family members came in voluntarily
for interviews during the investigation and were never handcuffed. From the record before
us, we cannot conclude that Appellant’s statement was compelled by promises of leniency.

Moreover, there is no proof, save Appellant’s own testimony, that he was threatened
with death by the police. Again, the trial court assessed the credibility of the witnesses and
concluded that Appellant’s claims were unsupported. The record supports the trial court’s
findings of fact and the legal conclusions with regard to this issue. See State v. Morgan, 825
S.W.2d 113, 116 (Tenn. Crim. App. 1991) (affirming conviction where the appellant claimed
that police alluded to the death penalty if he did not talk, but if he gave a confession, police
assured him they would talk to the prosecutor about charging him with manslaughter).

In Dexter Cox I, this Court felt compelled to note even if that admission of
Appellant’s statement was error, it was harmless beyond a reasonable doubt. 2013 WL
118714, at *13. Because we have determined that there was both probable cause for the
arrest of Appellantand that Appellant knowingly, intelligently, and voluntarily waived his
Miranda rights, the resulting admission of his statements was not erroneous and we need not
address whether the trial court committed error under the harmlessness standard for
non-structural constitutional errors. Appellant is not entitled to relief.

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 Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________
JERRY L. SMITH, JUDGE

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