State of Tennessee v. Josh L. Bowman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 26, 2013 Session

STATE OF TENNESSEE v. JOSH L. BOWMAN

Direct Appeal from the Criminal Court for Knox County
No. 92152A Jon Kerry Blackwood, Judge

No. E2012-00923-CCA-R3-CD - FiledAugust 29, 2013

A Knox County Criminal Court Jury convicted the appellant, Josh L. Bowman, of three
counts of first degree felony murder, one count of especially aggravated kidnapping, one
count of especially aggravated robbery, two counts of aggravated burglary, and one count of
employing a firearm during the commission of a dangerous felony. After the jury announced
its verdicts, the appellant pled guilty to one count of employing a firearm during the
commission of a dangerous felony when, at the time of the offense, the appellant had a prior
felony conviction. The trial court merged the murder convictions, merged the burglary
convictions, merged the employing a firearm convictions, and sentenced the appellant to an
effective sentence of life plus sixty years in confinement. On appeal, the appellant contends
that the trial court erred by failing to suppress his statement to police, by allowing the State
to show a transcript of his statement simultaneously with his video-recorded statement, and
by failing to instruct the jury as provided by State v. White, 362 S.W.3d 559 (Tenn. 2012).
Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial
court’s failing to instruct the jury properly pursuant to White constitutes reversible error.
Therefore, the appellant’s conviction for especially aggravated kidnapping must be reversed
and the case remanded to the trial court for a new trial as to that offense.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed in Part, Reversed in Part, and the Case is Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, J., joined. T HOMAS T. W OODALL, J., filed a separate dissenting opinion.

Mike Whalen, Knoxville, Tennessee, for the appellant, Josh L. Bowman.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.
 OPINION

I. Factual Background

This case relates to the home invasion robbery of Bill and Vickie Graves on May 2,
2009, by the appellant and his co-defendant, Gary S. Holman. The defendants were indicted
jointly but tried separately. Although the appellant does not contest the sufficiency of the
evidence, we will summarize the evidence presented at trial.

Michael Allen Mays of the Knox County Emergency Communications District, 911,
testified that on May 2, 2009, a call was received from a home on Washington Pike. The
State played the audio-recorded call for the jury.

Sergeant Frank Phillips of the Knox County Sheriff’s Office (KCSO) testified that on
May 2, 2009, he was dispatched to the Graves home on Washington Pike. As Officer
Phillips drove to the scene, he saw a safe in the center of Washington Pike with the contents
of the safe spread out on the side of the road. Sergeant Phillips went into the house and
found Mr. Graves lying on the floor in the doorway between the master bedroom and the
living room. Mr. Graves was bleeding heavily from a gunshot wound, and Mrs. Graves was
applying pressure to the wound. A gun was on the floor beside Mr. Graves.

Natasha Wise, a paramedic with Rural Metro, testified that when paramedics arrived
at the scene, firemen were “working on” Mr. Graves. The paramedics cut off Mr. Graves’s
clothes, wrapped his leg as best they could, and transported him to a hospital. On the way
to the hospital, Wise gave him intravenous fluids and oxygen. His blood pressure was low,
and his level of consciousness decreased. Mr. Graves had lost a lot of blood and needed to
get to a hospital quickly in order to get blood.

Officer Mackenzie Alleman of the KCSO’s Forensic Services Division testified that
she responded to the crime scene on the night of May 2 and took photographs of a medium-
sized safe in the middle of Washington Pike and items scattered around the safe. As she
entered the driveway of the Graves home, she saw and collected a folded knife in a black
nylon case. Officer Alleman photographed blood droplets on the front porch and collected
evidence from inside the home, including a spent Winchester .45 caliber shell casing and a
black toboggan just inside the front door; a Mauser nine millimeter pistol containing five live
.380 automatic rounds in the hallway in front of the master bedroom; another .45 caliber
Winchester spent shell casing in front of the bedroom door; a bullet in a paperback book in
the bedroom closet; and a bullet that had traveled through the wall in the hallway, separated
from its metal jacket, and landed on the floor under the kitchen sink. On cross-examination,
Officer Alleman testified that she did not know if the safe was processed for fingerprints.

-2-
 Officer Aaron Allen testified that he assisted Officer Alleman on May 2. He found
two black cloth gloves on the side of Washington Pike near the Graves home. Inside the
home, police officers found two bullets. One bullet had traveled through an interior wall and
landed on the kitchen floor by the sink. The other bullet was fired into the master bedroom
closet and came to rest in a paperback book in the closet. On May 13, 2009, Officer Allen
was called back to the scene and collected a Ruger firearm from underneath some bushes in
a tree line outside the home. The gun was loaded with three .45 caliber hollow point bullets.

Lieutenant John Hopkins of the KCSO testified that he and other Knox County
officers began looking for the appellant and learned that he was at a house in Loudon
County. When officers arrived at the home, the appellant was standing on the front porch.
They handcuffed him, and he gave them consent to search the residence. During the search,
the officers collected clothing and a gun cleaning kit. Lieutenant Hopkins said no one
threatened the appellant’s life.

Detective Aaron Yarnell of the KCSO testified that in May 2009, the appellant
became a suspect in the home invasion and shooting of Mr. Graves. Knox County officers
learned that the appellant was at a home in Loudon County, met with Loudon County police
officers, went to the home, and arrested the appellant. Detective Yarnell said that he was
behind the house during the appellant’s arrest, that he never heard anyone threaten the
appellant, and that he never saw anyone throw the appellant to the ground. The appellant
was not bruised or bleeding, and he gave officers consent to search the home. While officers
were conducting the search, Detective Yarnell, Officer Mark Webber, and Officer David
Henderson drove the appellant to the Knoxville City-County Building. When they arrived,
they put him into an interview room. The appellant asked for some water and a cigarette, and
the officers gave the items to him. They advised the appellant of his rights, the appellant
signed a waiver of rights form, and the appellant gave a statement.

Detective Yarnell testified that the appellant stated as follows: Chad Medford, a
relative of Mr. and Mrs. Graves, told the appellant and Holman that the Graveses had “come
across some money.” On May 2, Medford drove the appellant and Holman to the Graves
home on Washington Pike. Medford stayed in the car, and the appellant and Holman entered
the home through the unlocked front door. The appellant had a handgun, and both men were
wearing bandanas over their faces. The appellant got into a physical altercation with Mr.
Graves while Holman got into an altercation with Mrs. Graves. The appellant yelled for
Holman to help him with Mr. Graves, so Holman released Mrs. Graves and helped the
appellant try to control Mr. Graves. At some point, Holman ended up with the appellant’s
gun. The appellant saw Mrs. Graves trying to get a weapon in the living room, so he let go
of Mr. Graves and grabbed Mrs. Graves. He heard two or three gunshots, and he and
Holman carried the safe from the home. They ran down the driveway and toward the car

-3-
where Medford was waiting. They dropped the safe, it “busted open,” and they “scooped up”
as much change and property as they could. They got into the car, and Medford drove them
away from the scene. The men went to a motel on Merchants Drive and divided the change,
which ended up being about $85 per person.1

On cross-examination, Detective Yarnell acknowledged that before the appellant
signed the waiver of rights form, the appellant told him that an officer had threatened the
appellant. Detective Yarnell said that he did not ask the appellant about the threat and that
he did not know who made the threat. Detective Yarnell acknowledged that guns were
drawn during the appellant’s arrest. However, Detective Yarnell was behind the house and
did not hear the arresting officers yell at the appellant. The appellant ultimately signed the
waiver of rights form and gave his statement.

Angie Varner, a forensic services technician for the KCSO, testified that she assisted
with the collection of buccal swabs from the appellant and Holman on May 13, 2009. She
sent the swabs to the Tennessee Bureau of Investigation (TBI).

Jerry Harmon, the Lieutenant of Corrections at the Knox County Detention Facility,
testified that someone from the KCSO’s Major Crimes Department contacted him and asked
if the appellant would consent to a search of the appellant’s car. On May 13, 2009,
Lieutenant Harmon read a consent to search form to the appellant, and the appellant signed
the form.

Officer Michael McMahan, a crime scene technician for the KCSO, testified that he
searched the appellant’s car for evidence at Cedar Bluff Towing. Officer McMahan found
a pair of boots, a black and white scarf, a black glove, and a toboggan in the trunk. He found
red stains inside the passenger compartment, collected a sample of the stains, and sent the
samples to the TBI.

Officer Tom Finch of the KCSO testified that on May 12, 2009, he went to the Graves
home, took additional photographs, and collected t-shirt material from the side of
Washington Pike. On January 11, 2010, Officer Finch returned to the scene and collected
a Colt .45 pistol across the street from the house. He said that the gun was “frozen solid” and
that it had been easier for officers to find the gun in January than May because the vegetation

1
For his participation in the crimes, a jury convicted Medford of first degree felony murder, two
counts of aggravated burglary, two counts of especially aggravated kidnapping, two counts of especially
aggravated robbery, and employing a firearm during commission of a dangerous felony. State v. Chad
Medford, No. E2012-00335-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 475, at *21 (Knoxville, June 5,
2013).

-4-
had died or been cut down. Officer Finch collected buccal swabs from Mrs. Graves and
Chad Medford and a blood sample from Mr. Graves and sent the evidence to the TBI.

Vickie Graves testified that she married Bill Graves in 1979 and that they had one son.
In December 2004, Mrs. Graves’s nephew, Tony Wood, died. At the time of his death, Mr.
Wood had been in the process of divorcing his wife, Tiffany, and had named Mrs. Graves
as the beneficiary of his life insurance policy. Tiffany Wood was the sister of Chad Medford.

Mrs. Graves testified that on the evening of May 2, 2009, Mr. Graves was sitting in
his recliner and she was sitting on the love seat in their living room. The front door was
open, and the front screen door was closed but unlocked. About 9:00 p.m., the couple heard
a “buzz” from their alarm, letting them know that someone was in their driveway. Mr.
Graves got up to look outside. As soon as he got to the front door, a man jerked open the
screen door, came inside, and grabbed Mr. Graves in a “bear hug.” A second man came in
behind the first man, and both men had their faces covered.

Mrs. Graves testified that she stood up, that the second man told her to sit down, and
that he put a gun to her head. Mr. Graves saw the gun pointed at his wife, broke away from
the first man, and ran toward the bedroom with the first man “right after him.” Mrs. Graves
begged the second man not to hurt her husband. She said she heard a “pop” and started
screaming. She heard a second “pop” and called out to Mr. Graves, but he did not answer.
Mrs. Graves pushed the second man away and grabbed a gun that Mr. Graves kept near his
recliner. She tried to shoot the second man, but the gun would not fire. She and the second
man struggled over the gun, and she heard the first man say, “‘Get the safe.’” The second
man answered, “‘I can’t. She’s got a goddamn gun.’” Mrs. Graves pulled off the second
man’s toboggan, pulled down his bandana, and saw Gary Holman. She said she had never
seen Holman before that night.

Mrs. Graves testified that she ran toward the bedroom but that Holman tackled her on
the love seat and bit her arm. He took her husband’s gun away from her and pushed her
further into the love seat. Then he went to the front door, shut it, and opened the door to a
coat closet that had been behind the open front door. Holman reached down, picked up a
safe in the closet, and went out the front door followed by the first man. Mrs. Graves
telephoned 911 and went to her husband. Blood was gushing from his upper thigh. He was
coherent but could not talk, and Mrs. Graves put a shirt over his wound until the police and
paramedics arrived. Mr. Graves was transported to a hospital and received blood
transfusions. He died the next day.

Mrs. Graves testified that the gun officers found on the floor next to Mr. Graves may
have been a gun he kept on top of a gun rack in their bedroom. She said that she never saw

-5-
the first man’s face and that she had never met the appellant before May 2, 2009. She stated
that the only people who knew about the safe were herself, her husband, their son, Tony
Wood, and Tiffany Wood. Tony Wood did not know where Mr. and Mrs. Graves kept the
safe. On the night of the robbery, the safe contained some personal papers and a coin
collection, including a jar of fifty-cent pieces, some silver dollars, three state quarter sets, and
some old nickels. The safe did not contain any paper money. On cross-examination, Mrs.
Graves acknowledged that she could not identify the appellant as one of the robbers.

Kimberly Bryant testified as an expert in serology that in 2009, she was a special
agent forensic scientist with the TBI’s Serology/DNA Unit. She tested evidence received in
this case, including buccal swabs from the appellant, Holman, Medford, and Mrs. Graves and
blood from Mr. Graves. Bryant found a mixture of DNA from three males on the outside of
the pair of gloves found near the Graves home, and Mr. Graves’s blood was a major
contributor to the DNA. Bryant obtained a partial profile for DNA inside the gloves. At
least three people contributed to the partial profile, and Holman could not be excluded as a
possible contributor. The blood on the front porch came from Mr. Graves. Mr. Graves’s
blood also was on the outside of the pair of boots found in the trunk of the appellant’s car.
On cross-examination, Bryant testified that out of the twenty-nine items she tested, the only
item that contained the appellant’s DNA was his buccal swab.

Kevin Warner, a special agent forensic scientist with the TBI, testified as an expert
in firearms examination that he examined the Ruger semi-automatic pistol and its magazine
containing Winchester .45 caliber hollow point bullets. He also examined two shell casings
found in the home. Warner test-fired the Ruger and determined that the shell casing by the
front door and the shell casing near the bedroom were fired from the gun. A bullet jacket
found by the kitchen sink and the bullet recovered from the paperback book in the bedroom
closet also were fired from the Ruger. On cross-examination, Warner acknowledged that he
could not determine who fired the gun.

Don Carmen, a forensic firearms examiner for the TBI, testified as an expert in
firearms examination that he examined a corroded Colt .45 caliber automatic/semi-automatic
pistol. Carmen had to soak the gun in a penetrating liquid in order to make it operational.
He said that the gun may not have fired when someone pulled the trigger because the gun
was unloaded or because one of the gun’s safety mechanisms prevented it from firing.

Steven Cogswell, the Deputy Chief Medical Examiner for Knox County, testified that
he prepared Mr. Graves’s autopsy report. Mr. Graves received a gunshot wound to the left
thigh. The bullet entered the lower edge of Mr. Graves’s left buttock, struck his femoral
artery and femoral vein, and exited the front of his leg in the groin area. The bullet traveled
back to front and very slightly upward, and Dr. Cogswell found no evidence, such as soot or

-6-
stippling, to indicate that the wound was a close-contact wound. The wound was consistent,
however, with Mr. Graves’s having been shot with his back to the shooter. Dr. Cogswell said
that the victim survived in the hospital but died on May 3 due to the shock caused by blood
loss “on top of his underlying natural disease.” The cause of death was a gunshot wound to
the left thigh, and the manner of death was homicide.

At the conclusion of Dr. Cogswell’s testimony, the State rested its case. The appellant
did not present any proof, and the jury convicted him as charged of count 1, aggravated
burglary by entering a habitation with the intent to commit a theft, a Class C felony; count
2, aggravated burglary by entering a habitation and committing a felony, a Class C felony;
count 3, employing a firearm during the commission of a dangerous felony, a Class C felony;
count 6, the especially aggravated kidnapping of Mrs. Graves, a Class A felony; count 7, first
degree felony murder committed in the perpetration of burglary; count 8, first degree felony
murder committed in the perpetration of theft; count 9, first degree felony murder committed
in the perpetration of robbery; and count 10, the especially aggravated robbery of Mr. Graves,
a Class A felony. After the jury announced its verdicts, the appellant pled guilty as charged
in count 4 to employing a firearm during the commission of a dangerous felony when, at the
time of the offense, the appellant had a prior felony conviction.2 The trial court immediately
merged the murder convictions and sentenced the appellant to life. After a sentencing
hearing, the trial court found the appellant to be a career offender. It merged his aggravated
burglary convictions and merged his convictions for employing a firearm during the
commission of a dangerous felony. The trial court sentenced the appellant to fifteen years
for aggravated burglary, fifteen years for employing a firearm during the commission of a
dangerous felony, sixty years for especially aggravated kidnapping, and sixty years for
especially aggravated robbery. The trial court ordered that the fifteen-year sentence for
aggravated burglary run concurrently with his life sentence, that the fifteen-year sentence for
employing a firearm during the commission of a dangerous felony run consecutively to the
aggravated burglary sentence, and that the sixty-year sentences for especially aggravated
kidnapping and especially aggravated robbery run concurrently with each other but
consecutively to the life sentence.

II. Analysis

A. Motions to Suppress

First, the appellant contends that the trial court erred by not suppressing his statement
to police. The appellant contends that his statement to officers was involuntary because the
officers threatened him with violence prior to giving him Miranda warnings. The appellant

2
Count 5 of the indictment charged Holman with the same offense.

-7-
also contends, without any supporting argument, that the trial court should have suppressed
evidence found during a search of his home because he did not voluntarily agree to the
search. The State argues that the trial court properly denied the motions to suppress. We
agree with the State.

Before trial, the appellant filed a motion to suppress his statement to police on the
basis that he did not give his statement voluntarily. At the suppression hearing, Detective
Yarnell testified that the appellant became a suspect in the crimes, that KCSO officers met
with Loudon County officers, and that officers from both counties went to the appellant’s
home in Philadelphia, Tennessee. Detective Yarnell said that he went to the back of the
residence “to cover the rear” while other officers went to the front of the home. At some
point, Detective Yarnell learned that the officers had arrested the appellant and went to the
front of the house. The appellant was cooperative and talking with the officers. He gave
them consent to search the home, Detective Yarnell read a consent to search form to him, and
he signed the form. The officers searched the residence and had the appellant’s vehicle
towed from the scene. Detective Yarnell and two other KCSO officers transported the
appellant to the Knoxville City-County Building for an interview. Detective Yarnell said that
during the drive, which lasted about forty minutes, the appellant “had questions about what
was going on.” Detective Yarnell told the appellant that he would discuss the case after he
read Miranda warnings to the appellant. Officers did not threaten or beat the appellant at the
house or during the drive to Knoxville.

Detective Yarnell testified that the appellant asked for cigarettes at the City-County
Building and that officers gave him cigarettes. Detective Yarnell read a waiver of rights
form to the appellant, the appellant initialed each right as it was read to him, and the
appellant signed the portion of the form stating that no threats, promises, or coercion had
been used to obtain his statement. Detective Yarnell interviewed the appellant, and the
appellant admitted his involvement in the case. Officers did not threaten the appellant during
the interview, and the interview was audio- and video-recorded. After the interview, the
appellant asked for a drink of water, and officers gave him water. The appellant also asked
to talk with his wife. Officers contacted her, she came to the building, and the appellant
spoke with her.

On cross-examination, Detective Yarnell acknowledged that the appellant was a high
school graduate and that he had no doubt the appellant could read. He also acknowledged
that he was the first officer to read Miranda warnings to the appellant and said that he did not
ask the appellant about the case until he read the warnings to the appellant in the interview
room. Detective Yarnell spoke with the appellant at the home in Philadelphia but only asked
the appellant for consent to search the home. Detective Yarnell said that during the drive
from Philadelphia to Knoxville, the appellant was “trying to locate [Holman], because he was

-8-
another person in the case that we needed to speak with.” Holman was in the City-County
Building at the time of the appellant’s interview, but Detective Yarnell did not know how
Holman arrived there.

Detective Yarnell testified that he read six rights to the appellant and that the appellant
initialed each one. He acknowledged that when he asked the appellant to initial the portion
of the form that said no threats had been made, the appellant stated, “‘But I told you about
that. You know, they did that to me.’” Detective Yarnell also acknowledged that he
answered, “‘Well, that was those guys, not us.’” Detective Yarnell explained that he did not
know what the appellant was talking about and that he was “advising [the appellant] that
there [were] other people there at the residence. I was not aware of any threats that had been
made.” Detective Yarnell said he did not remember the appellant’s telling him that someone
put a gun to the appellant’s head or that someone told the appellant that the appellant may
not see his children again if the appellant did not do what the officers told him to do.
Detective Yarnell read that portion of the form to the appellant again, the appellant initialed
the statement saying that no threats had been made, and the appellant signed the waiver of
rights form. Detective Yarnell said that he did not ask the appellant about the alleged threat
because “I was not questioning [him] about any other incident than the homicide. That’s why
I reread the rights waiver to him on the box that he had a question about, which he then said
he understood and signed.”

Lieutenant Hopkins testified that Knox County officers learned the appellant was in
Loudon County and went to a home in Philadelphia to arrest him. When they pulled into the
driveway, the appellant came out of the home, and Lieutenant Hopkins and two other officers
took him into custody. Lieutenant Hopkins did not threaten the appellant, did not throw him
onto the ground, did not put a gun to his head, and did not tell him that he would never see
his children again if he did not cooperate. After the appellant’s arrest, he signed a consent
to search form, and Lieutenant Hopkins and other officers conducted the search. Lieutenant
Hopkins said that no one threatened, beat, or coerced the appellant and that any such claims
by the appellant were lies.

On cross-examination, Lieutenant Hopkins testified that the appellant came onto the
porch, that an officer ordered him to get onto the ground, and that the appellant did as the
officer ordered. Lieutenant Hopkins did not see anyone touch the appellant. Lieutenant
Hopkins had drawn his weapon but did not know if the other officers were holding their
weapons. While Lieutenant Hopkins was searching the appellant’s home, other officers
transported the appellant to Knoxville.

Lieutenant Paul Curtis of the Loudon County Sheriff’s Office testified that on May
12, 2009, Loudon County officers were asked to assist Knox County officers with the arrest

-9-
of a suspect in a homicide case. Lieutenant Curtis and two other Loudon County officers
went to the location, and Lieutenant Curtis pulled into the back yard “to cover the back
door.” He said the other two officers were “between the structure of the residence and
Highway 11.” Lieutenant Curtis learned that the appellant was in custody, went to the front
of the house, and saw the appellant on the front porch. The Loudon County officers did not
arrest the appellant, did not point a gun at him, did not put a gun to his head, did not put him
onto the ground, and did not threaten him. Lieutenant Curtis denied that officers told the
appellant they were “going to do to him the exact same thing that he did to that old man.”
He said that he only knew the case involved a homicide and that “I didn’t have any vested
interest in the case at all.”

On cross-examination, Lieutenant Curtis testified that he could not see the front porch
at the time of the appellant’s arrest. Lieutenant Curtis also did not hear what officers told the
appellant when they approached him.

Brian Davis of the Knoxville Police Department testified that in December 2002, he
read a waiver of rights form to the appellant. The appellant signed the form. On cross-
examination, Davis testified that he was questioning the appellant about a robbery.

The appellant testified on his own behalf that on the day in question, he was at home
with his children. He said that he “saw some activity outside [his] window,” that he stepped
outside, and that he saw officers running toward his front door. One of the officers grabbed
him and threw him onto the ground. The appellant said the officer put a gun to his head and
told him, “‘I should do to you what you did to that old man.’” The officer also told him,
“‘You need to do what they tell you to do, or you--or you will not see your children again.’”
The appellant said that he took the officer’s statement as a threat against his life or the lives
of his children and that he was scared and confused. He said that at least ten police officers
were present and that he did not know which one made the threat. He acknowledged that he
signed a consent to search form but said that he was on his way to Knoxville while officers
conducted the search.

The appellant testified that two officers transported him to the City-County Building.
One of them was Detective Yarnell. During the appellant’s interview with Detective Yarnell,
the appellant did not know if one of the officers present was the officer who had threatened
him. He told Detective Yarnell about the threat, but Detective Yarnell did not ask him any
questions about it. He acknowledged that officers allowed him to smoke a cigarette and see
his wife. He also acknowledged that he signed the consent to search form but said, “They
didn’t ask me. They told me.” He said that after his arrest, an officer took him back into the
house and told him, “‘Make it light on yourself. Tell me about [Holman].’” Officers had not
read Miranda warnings to the appellant, and he did not give them any information about

-10-
Holman at that time. However, while the officers were transporting him to Knoxville, they
asked him about Holman and asked if he could contact Holman. Detective Yarnell gave the
appellant’s cellular telephone to the appellant so that the appellant could call Holman. The
appellant telephoned Holman and spoke with him. When the appellant arrived at the City-
County Building, Holman was there. He said that he did not actually see Holman but that
officers told him Holman was in the building. The appellant had no reason to doubt the
officers.

On cross-examination, the appellant testified that the officers asked if he could get in
touch with Holman but did not tell him why they wanted to speak with Holman. The officers
did not talk with him about the case during the drive to Knoxville or prior to recording his
interview in the interview room. The appellant told Detective Yarnell before the call to
Holman that he had been threatened. He said that he thought the threatening officer had a
mustache and that the officer held the gun to his head until other officers handcuffed him.
The appellant said that even after the threatening officer removed the gun, he remained
scared because “[o]f what could happen.” He said he signed the consent to search form
because “[t]hey just told me to sign it.” He acknowledged that he read the waiver of rights
form, that he initialed his rights, and that he signed the form. He said he gave his statement
because he “feared for his life” and because he did not think he had a choice.

The trial court initially noted that the appellant made no implicating statements prior
to receiving Miranda warnings. The court then stated that there was no evidence in the
record that an officer had threatened the appellant. The court found the appellant not
credible and concluded that, even if an officer made a threat, the officers who conducted the
appellant’s interview determined that he was giving his statement knowingly and voluntarily.
The trial court denied the appellant’s motion to suppress his statement. On the morning of
trial, the appellant filed a motion to suppress the evidence seized from his home on the basis
that he did not voluntarily consent to the search. Before opening statements, the appellant
requested that the trial court, considering the evidence from the suppression hearing, rule on
the issue. The trial court found that the appellant gave his consent to search freely and
voluntarily and denied the motion.

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

-11-
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).

Regarding the voluntariness of the appellant’s statement, the Fifth Amendment to the
United States Constitution and article I, section 9 of the Tennessee Constitution generally
provide a privilege against self-incrimination to individuals accused of criminal activity, thus
necessitating our examination of the voluntariness of a statement taken during custodial
interrogation. State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998). Specifically, for a
confession to be admissible, it must be “‘free and voluntary; that is, [it] 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.’” State v. Smith, 933 S.W.2d 450, 455
(Tenn. 1996) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). We note that
if, prior to making a statement, the police inform the accused of his Miranda rights and the
accused proceeds to knowingly and voluntarily waive those rights, the statement is then
admissible against the accused due to the valid waiver of the privilege against
self-incrimination. Callahan, 979 S.W.2d at 581 (citing Miranda v. Arizona, 384 U.S. 436,
444-45 (1966)). In reviewing a trial court’s ruling on a motion to suppress, we will uphold
the trial court’s findings of fact unless the evidence preponderates otherwise. State v. Hicks,
55 S.W.3d 515, 521 (Tenn. 2001).

“In determining whether a confession has been made knowingly and voluntarily,
courts must look to the totality of the circumstances.” State v. Smith, 42 S.W.3d 101, 109
(Tenn. Crim. App. 2000). Accordingly, we consider the following factors in determining the
voluntariness of a confession: the appellant’s age; education or intelligence level; previous
experience with the police; the repeated and prolonged nature of the interrogation; the length
of detention prior to the confession; the lack of any advice as to constitutional rights; the
unnecessary delay in bringing the appellant before the magistrate prior to the confession; the
appellant’s intoxication or ill health at the time the confession was given; deprivation of
food, sleep, or medical attention; any physical abuse; and threats of abuse. See State v.
Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996). Furthermore, this court has stated,

Coercive police activity is a necessary prerequisite in order to
find a confession involuntary. The crucial question is whether
the behavior of the state’s officials was “such as to overbear [the
appellant’s] will to resist and bring about confessions not freely
self-determined.” The question must be answered with
“complete disregard” of whether or not the accused was truthful

-12-
 in the statement.

State v. Phillips, 30 S.W.3d 372, 377 (Tenn. Crim. App. 2000) (citations omitted).

Regarding the appellant’s consent to search his home, both the Fourth Amendment
to the United States Constitution and article I, section 7 of the Tennessee Constitution
provide protection for citizens against “unreasonable searches and seizures.” Generally, a
warrantless search is considered presumptively unreasonable, thus violative of constitutional
protections. See State v. Walker, 12 S.W.3d 460, 467 (Tenn. 2000). Our supreme court has
said, “It is, of course, well settled that one of the exceptions to the warrant requirement is a
search conducted pursuant to consent.” State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996)
(citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and State v. Jackson, 889 S.W.2d
219, 221 (Tenn. Crim. App. 1993)). “The sufficiency of consent depends largely upon the
facts and circumstances in a particular case.” State v. Jackson, 889 S.W.2d 219, 221 (Tenn.
2003). The prosecution bears the burden of proving valid consent. See State v. McMahan,
650 S.W.2d 383, 386 (Tenn. Crim. App. 1983). Furthermore, “‘[t]he existence of consent
and whether it was voluntarily given are questions of fact.’” State v. Ashworth, 3 S.W.3d
25, 29 (Tenn. Crim. App. 1999) (quoting McMahan, 650 S.W.2d at 386).

As noted by the trial court, the appellant did not make any incriminating statements
from the time of the alleged threat until he received Miranda warnings. In any event, the
appellant was twenty-seven years old at the time of his arrest, had an extensive criminal
history, was a high school graduate, and could read. Nothing indicates that his interview was
repeated or prolonged, that he was detained for an excessive period of time prior to his
confession, or that he was intoxicated or ill when he gave his statement. The waiver of rights
form shows that Detective Yarnell interviewed him at 7:00 p.m. on the day of his arrest, and
the officers provided him with cigarettes and water. The trial court disbelieved the
appellant’s claims of threats and abuse, and nothing in the record preponderates against that
finding. Therefore, the trial court properly denied the appellant’s motion to suppress his
statement.

As to the appellant’s cursory claim that he did not voluntarily consent to the search
of his home, Tennessee Court of Criminal Appeals Rule 10(b) provides that an argument is
subject to waiver if it is not properly supported by citation to the record or appropriate legal
authority. In any event, Detective Yarnell testified that he read a consent to search form to
the appellant and that the appellant signed the form. All of the police officers who testified
at the hearing stated that they did not witness anyone threaten or harm the appellant.
Although the appellant claimed that he was scared after the alleged threat and signed the
consent to search form only because the officers told him to sign it, the trial court disbelieved
the appellant’s claim that an officer threatened him. Once again, nothing preponderates

-13-
against that finding. Therefore, the trial court also properly denied his motion to suppress
evidence.

B. Transcript

Next, the appellant contends that the trial court erred by allowing the State to play a
video recording of his statement with a transcript of the statement appearing simultaneously
along the bottom of the screen. He also contends that the trial court erred by allowing that
version of the video-recorded statement to go to the jury room during deliberations. The
State contends that the trial court did not err. We conclude that the appellant is not entitled
to relief.

On the first day of the trial, Detective Yarnell told the jury what the appellant said
during the appellant’s video-recorded interview. The State requested to play the interview
for the jury, and the trial court allowed the State to play the video. The video showed the
appellant and police officers in an interview room. As the appellant and the officers spoke,
their words appeared on the bottom of the screen. After the State played the video, Detective
Yarnell explained to the jury that his office prepared the transcript of the interview. The
State asked, “And the transcript is offered as an--as an aid to assist the jury, but the evidence
is the video?” Detective Yarnell answered, “Yes, ma’am.” The State introduced the video
containing the added transcript into evidence as Exhibit 66. The State introduced a separate,
typed transcript of the appellant’s interview for identification purposes only as Exhibit 118.

During jury deliberations, the jury asked to see the video-recorded interview and was
provided with Exhibit 66. As soon as the video started to play for the jury, someone noticed
that the video contained the added transcript. Exhibit 66 was removed from the jury room,
and the State agreed to prepare a video without the transcript. The “clean” video, which
became Exhibit 128, was played for the jurors. The appellant moved for a mistrial, arguing
that the jury should not have been allowed to view the video with the added transcript. The
trial court noted that the jury saw only a small portion of Exhibit 66 before the video was
stopped and removed from the jury room and that the portion of the video the jury watched
contained only background information about the appellant. The trial court overruled the
motion.

On appeal, the appellant contends that the trial court erred by allowing the transcript
to be added to the video. He claims that he objected to the State’s playing Exhibit 66 during
the trial on the basis that “since the jurors were allowed to take notes, the chances that a juror
might just write down what was on the screen and thus create his own transcript is greater
than in the time before jurors were allowed to take notes.” He also claims that the trial court
overruled his objection.

-14-
 We are puzzled by the appellant’s argument. The appellant did not cite to his
objection or the trial court’s ruling on the objection in the record, and our review of the trial
transcript does not reveal that he made any contemporaneous objections to the State’s playing
Exhibit 66 for the jury or the State’s introducing Exhibit 66 into evidence.

Irrespective of the appellant’s failure to object to the exhibit, Tennessee Rule of
Evidence 1002, also known as the best evidence rule, generally provides that in order to
prove “the content of a writing, recording, or photograph, the original writing, recording or
photograph is required.” The rule’s purpose is so “only the best or most accurate proof of
written or similar evidence should be admitted, to the exclusion of inferior sources of the
same proof, absent some extraordinary justification for the introduction of secondary
evidence.” Neil P. Cohen et al., Tennessee Law of Evidence § 10.01[2][a] (6th ed. 2011).
However,

[t]ape recordings and compared transcripts are admissible and
may be presented in evidence by any witness who was present
during their recording or who monitored the conversation and
was in a position to identify the declarant with certainty, and
provided the testimony of the witness in whole or in part,
comports with the other rules of evidence.

State v. Walker, 910 S.W.2d 381, 394-95 (Tenn. 1995). Moreover, “a transcript of a tape
may be given to a jury where the jury is instructed that the tape, and not the transcript is the
actual evidence.” State v. Barnard, 899 S.W.2d 617, 623-24 (Tenn. Crim. App. 1994).

In this case, Detective Yarnell explained that he conducted the appellant’s interview
and that his office prepared and added the transcript to the video. He acknowledged that the
transcript was an aid for the jury and that the video was the evidence. The trial court, though,
did not instruct the jury that the video was the evidence. The trial court should have given
the instruction. In any event, as noted by the State, the appellant does not claim that a
material difference existed between the video and the transcript. See State v. Jimmy Dale
Pickett, No. M2005-02434-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 131, at **29-33
(Nashville, Feb. 14, 2007). Therefore, the trial court’s error in admitting Exhibit 66 into
evidence without giving the instruction was harmless. See Tenn. R. App. P. 36(a).

The appellant also claims that the trial court erred by allowing the jury to watch the
video with the added transcript during deliberations. However, the record reflects that as
soon as the video started to play, it was stopped, and Exhibit 66 was removed from the jury
room. The State prepared a video without the transcript, Exhibit 128, which was played for
the jurors. Nothing indicates that, other than the removed transcript, Exhibit 128 differed

-15-
from Exhibit 66. The appellant is not entitled to relief.

C. Kidnapping Instruction

Finally, the appellant contends that he is entitled to relief because the trial court failed
to instruct the jury properly regarding especially aggravated kidnapping in light of State v.
White, 362 S.W.3d 559 (Tenn. 2012). The State argues that White does not apply in this case
because the charges for especially aggravated kidnapping and especially aggravated robbery
named different victims. We conclude that White applied in this case, that the jury was not
instructed properly regarding especially aggravated kidnapping, and that the error was not
harmless beyond a reasonable doubt.

Relevant to this case, Tennessee Code Annotated section 39-13-305(a)(1) defines
especially aggravated kidnapping as “false imprisonment, as defined in § 39-13-302 . . .
[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon.” False imprisonment is defined
as the knowing removal or confinement of another unlawfully so as to interfere substantially
with the other’s liberty. Tenn. Code Ann. § 39-13-302(a). Our case law reveals a
long-standing issue regarding the legitimacy of a kidnapping conviction when the act(s)
establishing the offense occurred during an accompanying felony.

In State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), a jury convicted the
defendant of the armed burglary of a Shoney’s restaurant, the armed robbery of the
restaurant’s manager, and the aggravated kidnappings of the manager and five other
employees. In a split decision, this court reversed all of the aggravated kidnapping
convictions, holding that “[u]nless independent and separate fact patterns for both the armed
robbery and the aggravated kidnapping can be proven, appellant can be convicted of only the
armed robbery.” Anthony, 817 S.W.2d at 30. Our supreme court, citing due process
concerns, held that before a separate kidnapping conviction may be sustained, there must be
a determination of

whether the confinement, movement, or detention [was]
essentially incidental to the accompanying felony and [was] not,
therefore, sufficient to support a separate conviction for
kidnapping, or whether it [was] significant enough, in and of
itself, to warrant independent prosecution and [was], therefore,
sufficient to support such conviction.

Id. at 306. After its own analysis, our supreme court affirmed this court. Id. at 307-08.

-16-
 Later, in State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997), our supreme court
modified the Anthony court’s “essentially incidental” analysis and established a two-prong
test for determining whether a separate conviction for kidnapping violates due process. The
first step concerned a determination of whether the movement or confinement was beyond
that necessary to commit the accompanying felony. Id. If so, the second step concerned
ascertaining whether the additional movement or confinement (1) prevented the victim from
summoning help; (2) lessened the appellant’s risk of detection; or (3) created a significant
danger or increased the victim’s risk of harm. Id.

Recently, in White, our supreme court expressly overruled Anthony and its progeny,
holding that “[t]he separate due process test articulated first in Anthony, and subsequently
refined in Dixon . . . , is . . . no longer necessary to the appellate review of a kidnapping
conviction accompanied by a separate felony.” 362 S.W.3d at 578. Instead, the court held
that “whether the evidence, beyond a reasonable doubt, establishes each and every element
of kidnapping, as defined by statute, is a question for the jury properly instructed under the
law,” thereby concluding that a defendant’s constitutional concerns are protected by appellate
review of the sufficiency of the convicting evidence. Id. at 577-78. Therefore, our supreme
court cautioned that “trial courts must ensure that juries return kidnapping convictions only
in those instances in which the victim’s removal or confinement exceeds that which is
necessary to accomplish the accompanying felony.” Id. To effectuate this end, our supreme
court devised an instruction to be given by trial courts:

To establish whether the defendant’s removal or confinement of
the victim constituted a substantial interference with his or her
liberty, the State must prove that the removal or confinement
was to a greater degree than that necessary to commit the
offense of [insert offense], which is the other offense charged in
this case. In making this determination, you may consider all
the relevant facts and circumstances of the case, including, but
not limited to, the following factors:

• the nature and duration of the victim’s removal
or confinement by the defendant;

• whether the removal or confinement occurred
during the commission of the separate offense;

• whether the interference with the victim’s liberty
was inherent in the nature of the separate offense;

-17-
 • whether the removal or confinement prevented
the victim from summoning assistance, although
the defendant need not have succeeded in
preventing the victim from doing so;

• whether the removal or confinement reduced the
defendant’s risk of detection, although the
defendant need not have succeeded in this
objective; and

• whether the removal or confinement created a
significant danger or increased the victim’s risk of
harm independent of that posed by the separate
offense.

Id. at 580-81 (footnote omitted).

Regarding the appellant’s claim, we must first determine whether White is applicable.3
The State argues that White is inapplicable because the especially aggravated kidnapping and
the especially aggravated robbery involved different victims, Mrs. Graves and Mr. Graves,
respectively. In support of its claim, the State cites State v. John Lacardo Elliott, No.
M2001-01990-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 987, at *8-10 (Nashville, Nov.
15, 2002), in which this court stated,

We believe that the kidnapping of Ms. Starks, as alleged
in counts two and three of the indictment, had nothing to do with
the robbery of Mr. Kelly, an employee of B & S Package Store.
See State v. Blouvet, 965 S.W.2d 489, 492 (Tenn. Crim. App.
1997). Unlike the defendants in Anthony, Defendant did not rob
the victim of the aggravated kidnapping, Leslie Starks, nor was
he charged with that offense. Rather, he was charged with the
aggravated robbery of Mr. Kelly and the aggravated kidnapping
of Ms. Starks. As the supreme court stated in Anthony, “the real

3
We note that White was decided after the appellant’s trial and after the appellant filed his motion
for new trial. However, the appellant raised White at his motion for new trial hearing, and his case was in
the “‘appellate pipeline’” when the supreme court issued its opinion. State v. Robert Jason Burdick, No.
M2012-01071-CCA-R3-CD2013 Tenn. Crim. App. LEXIS 494, at *33 (Nashville, June 11, 2013) (quoting
State v. Bennie Osby, No. W2012-00408-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 903, at *22 (Jackson,
Nov. 2, 2012), perm. to appeal denied, (Tenn. 2013).

-18-
 issue involves the propriety of a kidnapping conviction where
detention of the victim is merely incidental to the commission of
another felony, such as robbery or rape.” 817 S.W.2d at 300. In
this case, the question is whether the detention of Ms. Starks
was merely incidental to the aggravated robbery of Mr. Kelly.
The Anthony court did not address a situation where the victims
of the aggravated kidnapping and the aggravated robbery are
two different people.

....

Here, rather than leaving the store, Defendant ordered
Ms. Starks at gunpoint to a storage room in the back of the store
after the aggravated robbery of Mr. Kelly was complete.
Therefore, the aggravated kidnapping of Ms. Starks was not
incidental to the aggravated robbery of Mr. Kelly. We believe,
however, that when the robbery victim and the kidnapping
victim are two different persons, the issue is better characterized
as a question of whether sufficient evidence exists to sustain a
conviction for aggravated kidnapping.

We are unpersuaded by the State’s argument. Our supreme court never said in the
Anthony/Dixon/White line of cases that the fact that the victim of the kidnapping was
different than the named victim of the accompanying felony eliminated the need for due
process analysis. In fact, we note that Anthony involved the aggravated kidnappings of five
victims who were different from the victim named in the charge for armed robbery.
Moreover, in a recent opinion involving another home invasion, this court concluded,
pursuant to White, that “the determination of whether the removal or confinement of [two
victims] constituted a substantial interference of either victim’s liberty that was to a greater
degree than necessary to commit the aggravated robbery of [a third victim] was a question
of fact for the jury to resolve.” State v. Michael L. Powell and Randall S. Horne, No.
E2011-00155-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 292, at *24 (Knoxville, May 10,
2012). Accordingly, we conclude that White was applicable to the instant case.

The trial court instructed the jury on especially aggravated kidnapping as follows:

Any person who commits the offense of especially
aggravated kidnapping is guilty of a crime.

For you to find the defendant guilty of this offense, the

-19-
 state must have proven beyond a reasonable doubt the existence
of the following essential elements:

(1) that the defendant knowingly removed
or confined another unlawfully so as to interfere
substantially with the other’s liberty; and

(2) that the confinement or removal was
accomplished with a deadly weapon or by display
of any article used or fashioned to lead the alleged
victim to reasonably believe it was a deadly
weapon.

Although the trial court instructed the jury in accordance with the pattern jury instruction in
effect at that time, it “did not define the key element—the substantial interference with the
victim’s liberty—as requiring a finding by the jury that the victim’s removal or confinement
was not essentially incidental to the accompanying felony offense.” White, 362 S.W.3d at
580. Given the facts of this case, we conclude that the issue of whether the appellant
substantially interfered with Mrs. Graves’s liberty in the accompaniment of especially
aggravated robbery was fairly raised by the evidence, and, therefore, that the trial court failed
to instruct the jury properly on the especially aggravated kidnapping of Mrs. Graves.

We must now determine the effect of the error. The error at issue is a non-structural
constitutional error; accordingly, the test to determine whether the error is harmless is
“‘whether it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” State v. Climer, 400 S.W.3d 537, 556 (Tenn. 2013)
(quoting State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008)).

The evidence at trial shows that the appellant and Holman burst into the Graves home.
The appellant grabbed Mr. Graves, and Holman pointed a gun at Mrs. Graves. Seeing a gun
pointed at his wife, Mr. Graves broke away from the appellant and ran to the master bedroom
to get his own gun with the appellant in hot pursuit. While Holman continued to hold the gun
on Mrs. Graves in the living room, the appellant shot Mr. Graves. Upon hearing the shots
and calling out to her husband but getting no response, Mrs. Graves pushed Holman away
and got a gun Mr. Graves kept by his recliner. Mrs. Graves tried to shoot Holman, but the
gun would not fire, and Holman struggled with her. The appellant returned to the living
room and told Holman to get the safe, but Holman said he could not because Mrs. Graves had
a gun. Mrs. Graves ran from Holman, but he tackled her on the love seat, bit her arm, and
took the gun away from her. Then he immediately got the safe out of the closet, and he and
the appellant left the residence. Given that the defendants’ confinement of Mrs. Graves

-20-
occurred during the accompanying robbery, that the confinement was limited to the living
room during the entire robbery, and that the confinement ended as soon as the defendants
exercised control of the safe, we conclude that whether the appellant’s confinement of Mrs.
Graves was essentially incidental to the accompanying aggravated robbery was subject to
different interpretations by the jury and was not harmless beyond a reasonable doubt.
Therefore, the appellant’s especially aggravated kidnapping conviction must be reversed and
the case remanded for a new trial on that charge.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the trial court’s admitting Exhibit 66 into evidence without instructing the jury that the video,
not the transcript, was the evidence was error but harmless. We also conclude that the trial
court erred by failing to instruct the jury properly on especially aggravated kidnapping
pursuant to White and that the error was not harmless. Therefore, the appellant’s conviction
for especially aggravated kidnapping is reversed, and the case is remanded to the trial court
for further proceedings consistent with this opinion.

_________________________________
NORMA McGEE OGLE, JUDGE

-21-