State of Tennessee v. David Hooper Climer Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 12, 2011

STATE OF TENNESSEE v. DAVID HOOPER CLIMER, JR.

Direct Appeal from the Circuit Court for Gibson County
No. H 8704 Clayburn Peeples, Judge

No. W2010-01667-CCA-R3-CD - Filed December 14, 2011

A Gibson County Circuit Court jury convicted the appellant, David Hooper Climer, Jr., of
first degree premeditated murder and abuse of a corpse, and the trial court sentenced him to
consecutive sentences of life and two years, respectively. On appeal, the appellant contends
that (1) the evidence is insufficient to support the premeditated murder conviction and shows
he was insane when he abused the victim’s corpse, (2) the trial court should have granted his
motion to sever, (3) the trial court should have granted his motion to suppress his statements
to police, (4) he was denied his right to a speedy trial, and (5) the trial court should have
dismissed a prospective juror for cause. Based upon our review of the record and the parties’
briefs, we conclude that the evidence is insufficient to support the appellant’s conviction of
first degree premeditated murder but that the evidence is sufficient to support a conviction
for the lesser-included offense of second degree murder. The appellant’s first degree murder
conviction is reduced to second degree murder, and the case is remanded to the trial court for
resentencing. The appellant’s conviction of abuse of a corpse is affirmed.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Sam J. Watridge (at trial and on appeal) and Joseph Tubbs (at trial), Humboldt, Tennessee,
for the appellant, David Hooper Climer, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Garry G. Brown, District Attorney General; and Larry Hardister and Stephanie J.
Hale, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION
 I. Factual Background

The record reflects that in March 2008, the Gibson County Grand Jury indicted the
appellant for first degree premeditated murder and abuse of a corpse. The victim was Dorris
Deberry, his sixty-two-year-old mother.

At trial, Tracy Davis, the victim’s daughter and the appellant’s sister, testified that she
last saw the victim in August but that she could not remember the year. The victim visited
Davis in Mason Hall, Tennessee, where Davis was living with her husband. Davis’s grown
son usually heard from the victim every Thanksgiving and for his birthday. However, he did
not hear from the victim for Thanksgiving in 2007. Davis said that she “questioned why [the
victim] hadn’t got in touch” with him, that she spoke with the appellant, and that the
appellant told her the victim had “left with a Mexican man named Ray.” The appellant also
told her that the victim and Ray went to visit Ray’s family. At some point, Davis talked with
the appellant about filing a missing person report. She said the appellant did not seem
concerned about the victim and told Davis that “he was getting pushed in a corner or
something.” On cross-examination, Davis testified that she did not remember the appellant’s
saying he was thinking about committing suicide.

Emily Fisher, the victim’s younger sister, testified that she usually spoke with the
victim every two or three weeks and that she last talked with the victim a few days before
Thanksgiving in 2007. The victim told Fisher that the victim was going to cook
Thanksgiving dinner at her home for her grandson, who was coming over. A couple of
weeks later, Fisher telephoned the victim’s home, but no one answered. Between
Thanksgiving and Christmas, Fisher called the victim’s house five or six times. No one ever
answered the telephone, and Fisher left a message about three times.

Fisher testified that she received a Christmas card from the victim, which was unusual
because Fisher had never received a Christmas card from her before. She said that she
noticed the handwriting on the card did not belong to the victim but that she “had no inkling
. . . anything was going on.” On Christmas Day, Fisher telephoned the victim’s home and
left a message on the answering machine for the victim to call her. Fisher did not hear from
the victim. On New Year’s Eve, Fisher received a telephone call from Tracy Davis, who was
crying. Based on Davis’s call, Fisher telephoned the victim’s home on New Year’s Day. No
one answered the telephone. Fisher left a message, stating that if she did not hear from
someone that day, she was calling the police. Fisher said that later that day, the appellant
called and told her that the victim had “gone off with a ‘Mexican looking guy named Ray.’”
The appellant also told her that he had not seen the victim since December 11 and that he did
not know how to get in touch with the victim. Fisher said she asked the appellant a few more
questions because “it’s not anything my sister would do is go off with anybody, a man.” The

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next day, January 2, Fisher called the appellant and asked if he had heard from the victim.
The appellant said no. Fisher said that she “just knew it wasn’t right” and that she became
very concerned about the victim. Within a week, she contacted the police. She learned the
victim was dead on January 25, 2008.

On cross-examination, Fisher acknowledged that she and the victim did not have a
close relationship. They saw each other only two or three times per year.

Pamela Nockard testified that she was the victim’s landlord and lived next door to the
victim. The appellant lived with the victim, and Nockard never saw the victim with a male
friend. Nockard said that she and the victim worked together at “the Arsenal” for a while but
that the victim was fired just before she disappeared. Nockard said she last saw the victim
a couple of weeks before Thanksgiving. The victim usually paid the rent, but the appellant
paid the rent in December 2007 and January 2008. When the appellant paid the rent in
January 2008, Nockard asked if his family had a good Christmas. She also asked about the
victim. She said the appellant told her that “they had had a great Christmas” and that the
victim was “fine.” Sometime right after Thanksgiving, the appellant began burning
something outside. Nockard explained,

He moved a barrel up to the front of the house and was
burning stuff in it just about every night. I thought at first it
might have been garbage. He had a barrel out in the dog pen
burning like he was trying to keep the dogs warm.

The appellant continued to burn something in the barrel for the rest of November and into
December. Nockard said that one night, she and her husband noticed a “horrific odor.”
Nockard said she thought the odor was the result of the appellant’s burning “some kind of
rubber stuff or something.” She said that she had never smelled the odor before and that it
lasted a couple of days.

On cross-examination, the defense asked Nockard if she knew why the victim lost her
job at the Arsenal. Nockard answered, “They said she was just acting funny and . . . they told
me she had been abused and they said that they thought she had alcohol in her system.” She
said the victim failed a company drug test, testing positive for alcohol.

Donnie Martin testified that he was part-owner of Industrial Controls and Electrical
in Dyersburg. In November 2007, the appellant was working for the company as an
electrician. Employees did not have to work on Thanksgiving Day. However, they had to
work the day after Thanksgiving, Friday. The appellant came to work on Friday and told
Martin that he needed to take the afternoon off in order to pick up his son, but Martin

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refused. Martin said the appellant made a telephone call, went outside for a break, and
“came back with a piece of notebook paper or piece of napkin that he had written that he
resigned.” The appellant left, and Martin never saw him again.

On cross-examination, Martin testified that he could not remember the exact reason
the appellant gave for needing the afternoon off but that “I’m pretty sure it was his son that
he was going to pick up or something.” He acknowledged that the appellant was a good
employee.

Detective Steve Grooms of the Gibson County Sheriff’s Department testified that on
January 7, 2008, the Tennessee Bureau of Investigation (TBI) contacted the sheriff’s
department about the missing victim. The sheriff’s department began investigating the
victim’s disappearance. About 10:30 a.m. on January 24, Detective Grooms and other
officers went to the victim’s home. The officers knocked on the front and back doors, but
the appellant would not answer. The officers left, obtained a search warrant, and returned
to the home about 2:00 p.m. When they arrived, the appellant was coming out of the house
with one of his dogs. Detective Grooms said he and other officers “took [the appellant] into
custody” and transported him to the police department about 2:30 p.m.

Detective Grooms testified that officers searched the victim’s home. During the
search, they found what appeared to be blood on carpet, paneling, and items in the home. The
officers collected samples and sent them to the TBI for testing. They also found cleaning
supplies and latex gloves in the kitchen. During their initial search, the officers did not find
any property that belonged to the victim. Other than a few tools, her bedroom was empty.
Later, the officers found the victim’s Bible and a hairbrush. Two cars were parked at the
home, and the officers found the victim’s bloody watch in the glove box of one of the cars.
The car was registered to the victim. A burn pile was forty to fifty feet behind the house, and
the burn pile looked like it had been used recently. At some point, the officers excavated the
burn pile and found a pair of mattress springs. Detective Grooms identified the victim’s
2004 driver’s license. According to the license, the victim was five feet, five inches tall and
weighed one hundred thirty-five pounds.

Detective Grooms testified that the appellant was “booked” into the jail at 2:37 p.m.
on January 24. At 10:30 p.m., Detective Grooms began interviewing him. Detective Grooms
said that the appellant seemed “normal” and that he did not smell alcohol on the appellant.
Detective Grooms advised the appellant of his rights, and the appellant said he understood
them. However, the appellant refused to sign a waiver of rights form. The appellant’s
interview lasted three and one-half to four hours. Although the interview was video
recorded, Detective Grooms read a transcript of the appellant’s entire one-hundred-thirty-
page interview to the jury.

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 At first, the appellant claimed during the interview that he last saw the victim on
Tuesday, December 11, 2007; that she left with a Hispanic male named Ray; and that the
appellant had not heard from her. However, he later stated that the day after Thanksgiving,
he worked all day. When he returned home from work shortly after 8:00 p.m., he found the
intoxicated victim lying on the porch. He woke the victim, who had soiled her pants, and
took her into the bathroom. He took off her clothes, gave her a shower, and put her to bed.
The next morning, the appellant checked on the victim and went to work. He said that he
telephoned the victim from work and that she told him she was “not doing too good.” The
appellant told Donnie Martin that he needed to leave, and Martin fired him. The appellant
went home and discovered that the victim had soiled herself again. He cleaned her up and
gave her some soup. The victim thought her tailbone was broken but did not want to go to
the hospital. The next morning, Sunday, the appellant checked on the victim and found her
lying in bed with her eyes and mouth open. The appellant said the victim had vomited
“brown stuff” onto the floor and was stiff. He performed CPR on her, but he did not call 911
because he was afraid he would go to jail. The appellant said that on December 5, the victim
“started smelling” and that he “cut her up.” He said that he tried to burn her head in a metal
bucket, that her head was “crushed up and gone,” and that he thought he threw the bucket
into a dumpster in Humbolt. He buried the rest of her body. He said that he loved the victim
“more than life” and that she was “my world.”

Detective Grooms testified that on the morning of January 25, the appellant led police
officers to a location in Madison County and showed them where he had buried the victim.
The victim’s body was exhumed and transported to the medical examiner’s office. On
January 26, Detective Grooms interviewed the appellant again. During the interview,
Detective Grooms informed the appellant that the police had found a lot of blood in the
victim’s bedroom and some blood splatter on a wall in her bedroom. The appellant denied
dismembering the victim in her bedroom. He said that he dismembered her in a green plastic
tub in the kitchen, that “there wasn’t a lot of blood,” and that “there was no splatter.” He said
he used a hatchet, hammer, hacksaw, and Sawzall reciprocating saw to cut up the victim. He
cut off her hands and feet and boiled them on the stove in order to try to destroy the bones.
However, that plan did not work, so he carried the green tub into the back yard and burned
it in the burn pile. The appellant denied hitting the victim in the days before her death but
said, “I have in the past.” He said that the victim’s ear was black and that she was “pretty
beat up” from having fallen on the porch the Friday before her death.

On cross-examination, Detective Grooms acknowledged that the appellant was upset
and cried during his first interview. He also acknowledged that the appellant asked him more
than once to end the appellant’s life. Detective Grooms said he thought the appellant’s
behavior was “a normal reaction of somebody that’s scared they’re fixing to get in trouble.”
He acknowledged that during the appellant’s first interview, the appellant mentioned he did

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not have a blanket or toilet paper in his cell. During the second interview, the appellant told
Detective Grooms that he still did not have a blanket or toilet paper.

On redirect examination, Detective Grooms testified that the appellant demonstrated
how he used the tools to dismember the victim. Officers found a hacksaw at the victim’s
home, but no blood was on it. The police never found a hatchet, hammer, or Sawzall
reciprocating saw.

Dr. Miguel Laboy, the Assistant Medical Examiner for Shelby County, testified that
he performed the victim’s autopsy. Dr. Laboy received the victim’s torso, which consisted
of her thorax and abdomen. The torso was nude and covered with mud, branches, and leaves.
One thigh was attached to the body, and the other thigh had been cut off at the pelvis. Ten
out of twelve ribs on the victim’s right side were broken, and the fractures were consistent
with compression injuries a person could receive by hitting a dashboard during a car
accident. Dr. Laboy also received multiple bones without any soft tissue on them. The bones
corresponded to the victim’s extremities and were in a bag with mud. Multiple cut marks
were on the bones, and some of the bones had been burned. The victim’s head and upper
neck were not attached to the torso, and Dr. Laboy did not receive any of those bones.
Because the victim’s body was decomposing, Dr. Laboy could not see any bruising. The
body contained 89 milligrams per 100 grams of alcohol. However, due to the amount of
decomposition, which could have affected the body’s alcohol content, Dr. Laboy could not
determine how much alcohol the victim consumed before her death. He also could not
determine whether the victim’s injuries occurred before or after her death. He said that if the
victim’s rib fractures occurred before her death, the fractures could have been fatal. Based
upon the autopsy and what he learned from police, Dr. Laboy concluded that the victim’s
cause of death was “undetermined type of violence” and that her manner of death was
homicide.

On cross-examination, Dr. Laboy testified that he could not say the victim’s ribs were
broken before her death. He said that the victim’s bones had a “normal appearance” but
acknowledged that he did not test their density or fragility. He said it was possible, but
highly unlikely, that CPR caused the victim’s rib fractures. The victim’s left coronary artery
was 80% blocked with plaque, and her right coronary artery was 90% blocked. However,
Dr. Laboy saw no scarring in her heart to indicate she died of a heart attack. He also saw no
injuries to her internal organs. He could not determine her exact cause of death.

Dr. Steven Symes testified as an expert in forensic anthropology that he received the
following bones for analysis: one of the victim’s neck vertebra, her upper arms, parts of her
left and right forearms, parts of her legs, a small part of her pelvis, both shin bones, and her
right heel bone. Dr. Symes examined the bones microscopically and described the various

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marks he found on the bones to the jury. He summarized his findings from his written report
as follows:

“The body has numerous examples of dismemberment in the
form of saw cuts to the limbs and neck. The saw used may be
a power saw. There is unexpected trauma. There is unexpected
trauma in the form of a serrated knife, a non serrated chopping
blade, [and] blunt force trauma[.] [A]lso the body’s
superficially burned in numerous areas.”

On cross-examination, Dr. Symes testified that some very fine cuts he saw on the
bones could have been caused by a scalpel during the victim’s autopsy. He said the victim’s
bones appeared “somewhat osteoporotic” and were “very fragile.” He said some of the
fragility could have occurred because the bones were processed and “overcooked.” He said
the bones would have been “slightly fragile” while the victim was still alive. He could not
say that any of the marks on the bones were made before the victim’s death.

Lawrence James, a forensic scientist with the TBI, testified as an expert in forensic
serology and DNA analysis that he examined and tested evidence collected from the victim’s
home. Testing showed that the victim’s blood was on paneling in the hallway, paneling in
the main bathroom, a cabinet door under the kitchen sink, a telescopic handle in the kitchen,
a cabinet door under the sink in the main bathroom, and carpet in the victim’s bedroom.
Blood found on a vacuum cleaner bag in the home was not human blood and was consistent
with dog blood. James also found the victim’s blood on cardboard collected from a storage
unit and on a lady’s watch collected from the victim’s car.

On cross-examination, James testified that he received a hacksaw for testing and that
no blood was on the saw. He acknowledged that blood and DNA could be contaminated
during collection. However, he found no evidence of contamination in this case.

Michael Smith testified that he and Robert Powell shared a jail cell with the appellant
for about one week in March 2008. Smith said the appellant told him the following: The
appellant would come home from work and find the victim “on the front porch drunk, passed
out half the time.” The appellant would take the victim to the bathroom and clean her up.
Sometimes the appellant would “get a little rough with her” and “smack her around a little
bit.” One night, the appellant came home and found the victim intoxicated. He “got rough
with her that night and smacked her around on her face.” The victim had soiled herself, so
the appellant carried her to the bathroom and cleaned her. Smith said,

[O]ne story he found her dead in the bathroom. The second

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 story he picked -- one story he picked her up and turned her
upside down, got all the vomit out of her and then she died in
the bedroom and they switched. I don’t know which one was
first and which one was second, but one time he said she died
this way -- he found her dead here and the second time he seen
her die.

The appellant told Smith that he dismembered the victim two weeks after she died.

Smith testified that on the last night he and Powell shared a cell with the appellant,
the appellant “went off the wall and started screaming and throwing things and beating the
wall and in a rage.” He said that the appellant was pacing, throwing things, and “threatened
to kill us” and that the appellant “threatened to snap our necks and stack [our] bodies on top
of each other in a pile.” Smith said the appellant also stated, “‘I’ll bash your head in like I
did that [f***ing] bitch.’”

On cross-examination, Smith acknowledged that the appellant always claimed he did
not kill the victim. Smith denied provoking the appellant into a rage by stealing the
appellant’s Moon Pie or by going through the appellant’s property. Smith knew the victim
and the appellant’s sister and felt sorry for them. He said that the victim was “ a nice old
lady” and that her death was “a damn shame.” He said that he was in jail in March 2008 for
a simple possession charge and that he was not under the influence of drugs at the time of
the appellant’s trial. He said no one had promised him anything in exchange for his
testimony.

Robert Powell testified that in March 2008, he was in jail for an aggravated assault
charge and shared a cell with Michael Smith and the appellant. He said that he never asked
the appellant about the appellant’s case but that Smith asked about it. The appellant told
Smith and Powell the following: On the night of the victim’s death, the appellant was
smoking marijuana in the living room, and the victim was drinking a beer on the back porch.
The victim came inside and walked toward the bathroom. The appellant went to check on
her and found that she had fallen and soiled herself. The appellant sat the victim on the
toilet, and the victim vomited “brown stuff.” The appellant cleaned her up and put her on
the bed. The next morning, he checked on her, found her dead, and performed CPR.

Powell testified that Smith stole the appellant’s Moon Pie and that the appellant told
them, “‘I ought to just strip y’all down . . . kill y’all, strip y’all down naked and stack y’all
on y’all’s bunk.’” On the last night Powell shared a cell with the appellant, Powell and Smith
woke the appellant because the appellant was snoring. Powell said the appellant “snapped”
and told them that “‘if I ain’t gonna get no sleep ain’t nobody gonna get no GD sleep.’”

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Powell said the appellant was “talking all kinds of crazy” and told them, “‘The last person
that pissed me off I bashed their [f***ing] head in.” Powell said he refused to go to sleep
and reported the appellant’s behavior the next day. Powell and Smith were moved to a
different cell.

On cross-examination, Powell acknowledged that at the time of the appellant’s trial,
Powell was facing an aggravated assault charge for using scissors to stab someone. He
denied receiving anything from the State in exchange for his testimony but acknowledged
that his attorney talked with the State about his charges. The appellant never said he killed
the victim.

Dr. Robert W. Kennon, a licensed psychologist, testified for the appellant as an expert
in forensic psychology that he evaluated the appellant on February 11, February 18, and
March 17, 2008. He also administered psychological tests to the appellant. Dr. Kennon
concluded that the appellant suffered from paranoid personality disorder due to alcohol
dependence and impulse control disorder. Dr. Kennon explained that people with paranoid
personality disorder had problems with relationships and trusting people. He said they were
prone to deteriorating psychologically and could become delusional. Dr. Kennon explained
that the appellant’s mistrust of people arose out of some of his early childhood experiences
and that the appellant demonstrated “magical thinking.” Dr. Kennon said the appellant
“adored” the victim and “placed her on a pedestal.” After the victim died, the appellant
thought he could heal her and bring her back to life. The appellant’s thinking was delusional
and was caused by stress from the victim’s death. Dr. Kennon said the appellant grew up in
a violent atmosphere and thought he needed to protect the victim. Dr. Kennon said that the
appellant was the victim’s caregiver and that “[i]t doesn’t make sense that he would want to
harm the person that he loves, has cared for.”

Dr. Kennon testified that the appellant denied killing the victim. However, the
appellant told Dr. Kennon that he tried to control the victim’s drinking and behavior by
hitting her. The appellant denied that he hit the victim on her head but said that he hit her
on her shoulders or back. Dr. Kennon described the appellant’s abuse of the victim as very
similar to a “parent/child reversal relationship” and said the appellant abused the victim “to
try to control her and to prevent her from deteriorating.” Dr. Kennon said that after the
victim’s death, the appellant was not in full contact with reality and could not appreciate the
wrongfulness of dismembering the victim. Dr. Kennon acknowledged that the jail outburst
described by Smith and Powell was typical of someone suffering from paranoid personality
disorder.

On cross-examination, Dr. Kennon acknowledged that a person could direct violence
toward an individual the person loved and could kill the individual. The fact that the

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appellant was employed and looked after the victim suggested he was not delusional before
her death. At the time of the victim’s death, the appellant could appreciate the wrongfulness
of his actions. However, the victim’s death led to the appellant’s psychological deterioration.
At that point, the appellant became delusional and dismembered the victim. By the time Dr.
Kennon interviewed the appellant, the appellant understood the wrongfulness of
dismembering her. The State asked Dr. Kennon if he was aware that the appellant had boiled
the victim’s hands, and Dr. Kennon said no. He said that while the appellant’s actions
suggested he was trying to cover up what he had done, “you have to take that in light of his
paranoia and his delusions that he was being spied upon.” Dr. Kennon acknowledged that
the appellant tried to manipulate and control the victim. He also acknowledged that the
appellant physically abused her and that the abuse may have contributed to her death. The
appellant had difficulty accepting that his actions may have led to or contributed to the
victim’s death. Dr. Kennon said that the appellant had a mental disease or defect when he
examined the appellant and that the appellant continued to have a mental disease or defect
at the time of trial.

Dr. Samuel Craddock, a psychologist from the Middle Tennessee Mental Health
Institute (MTMHI), testified on rebuttal for the State as an expert in forensic psychology. The
appellant was a patient at the facility for twenty-seven days during August and September
2009, and Dr. Craddock evaluated him. All of the doctors at the facility agreed that the
appellant was competent to stand trial. Dr. Craddock concluded that the appellant suffered
from dysthymic disorder, also known as low-level chronic depression, and substance abuse.
The depression was treatable, and the appellant was prescribed medication. The appellant
had suffered from depression previously and had received mental health treatment for it. Dr.
Craddock said that the appellant gave a “remarkably similar account” of the victim’s death
to doctors at MTMHI and Detective Grooms. Regarding the appellant’s dismembering the
victim, Dr. Craddock said the appellant did not describe himself as being out of touch with
reality but described himself “as though he were looking down on what he was doing.” He
said that the appellant’s “perception of what was going on was less than healthy, but I would
not call him psychotic.”

Dr. Craddock testified that he disagreed with Dr. Kennon’s diagnosis of paranoid
personality disorder because testing did not suggest the appellant suffered from the condition
and because the appellant “did not tell us anything about somebody being under his porch
or the CIA or anything of this nature.” He said paranoid personality disorder was a pervasive
condition that did not last for short periods of time. Although the appellant did not appear
to suffer from a personality disorder, he showed the propensity to have impulse control
disorder. Dr. Craddock did not conclude that the appellant had a severe mental disease or
defect. The appellant’s use of marijuana at the time of the victim’s death may have been a
contributing factor to his mental functioning at the time of the crimes. However, his

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substance abuse did not impair his ability to appreciate the wrongfulness of his actions. Dr.
Craddock said the appellant felt responsible for taking care of the victim. Although the
appellant did not like cleaning up her accidents, he did so anyway.

Dr. Craddock testified that the appellant was not dysfunctional before the victim died.
He said that after the victim’s death, the appellant became less functional “simply because
he had a dead person before him and [did not know] what to do about it.” He said that the
appellant used poor judgment and that “it just eventually caught up with him.” He said the
appellant consistently stated that he loved the victim. However, the appellant had a history
of abusing her. At times, the appellant loved the victim very much; at other times, he became
exasperated and impatient with her. Dr. Craddock described the appellant’s feelings toward
the victim as “human nature.” He said that if the appellant’s abuse contributed to the
victim’s death, the appellant was capable of appreciating the wrongfulness of his conduct.

On cross-examination, Dr. Craddock acknowledged that he interviewed the appellant
twenty months after the crimes and that the appellant’s mental condition may have been
different closer in time to the crimes. The appellant never indicated that he killed the victim.
The appellant always loved the victim but would get frustrated with her. Regarding the
appellant’s ability to appreciate the wrongfulness of his conduct, Dr. Craddock explained that

at times [the appellant] may have perhaps strong armed her out
of frustration or whatever and only realized later how fragile she
was and that it was abuse or perhaps -- he talked about trying to,
I think, sit her in the tub and clean her up and so forth and to
handle somebody in their sixties, . . . I think we all know what
that means in an elderly person. They are very fragile. Their
bones are fragile. Their skin is fragile, so I don’t know whether
he was able to appreciate that he was abusing her at the time,
whereas, if you were to look at her she might appear abused, so,
you know, that’s really difficult to do. You know, I don’t want
to accuse him of something that he didn’t do. You know, I don’t
know, but would he know intentional abuse, certainly. I think
we all would know that.

On redirect examination, Dr. Craddock testified that the appellant’s telling people that
the victim left with Ray “was a way of delaying what was inevitable” and was not an
example of the appellant’s being psychotic. The appellant’s disposing of the victim’s body
was an indication that the appellant was aware of the wrongfulness of his conduct. However,
a psychotic person also could conceal evidence. Dr. Craddock said it was “very unlikely”
the appellant was psychotic.

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 During jury deliberations, the jury sent out a question to the trial court, asking, “‘Can
the Judge provide clarity on the definition of premeditated?’” The trial court referred the jury
to the definition given during the jury charge and read the instruction aloud. The jury
convicted the appellant of first degree premeditated murder and abuse of a corpse. The trial
court immediately sentenced him to life for the murder conviction. After a sentencing
hearing for the abuse of a corpse conviction, a Class E felony, the trial court sentenced him
to two years and ordered that it be served consecutively to the life sentence.

II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions.
When an appellant challenges the sufficiency of the convicting evidence, the standard for
review by an appellate court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. See
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility
of witnesses and the weight and value to be afforded the evidence, as well as all factual
issues raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor
will this court substitute its inferences drawn from the circumstantial evidence for those
inferences drawn by the jury. See id. Because a jury conviction removes the presumption
of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with
one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State v. Marable, 313 S.W.2d 451,
457 (Tenn. 1958)). “The standard of review ‘is the same whether the conviction is based
upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

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 1. First Degree Murder

The appellant contends, without any argument or citation to authorities, that the
evidence is insufficient to support the conviction for first degree premeditated murder. The
State asserts that the appellant is not challenging the sufficiency of the evidence and does not
address the issue.1

First degree murder is the premeditated and intentional killing of another person.
Tenn. Code Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise
of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). The element of
premeditation is a question of fact for the jury. State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances surrounding the killing. Bland, 958 S.W.2d at 660. In
State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), our supreme court delineated the
following circumstances from which a jury may infer premeditation:

[D]eclarations by the defendant of an intent to kill, evidence of
procurement of a weapon, the use of a deadly weapon upon an
unarmed victim, the particular cruelty of the killing, infliction of
multiple wounds, preparation before the killing for concealment
of the crime, destruction or secretion of evidence of the murder,
and calmness immediately after the killing.

The jury may also infer premeditation from the establishment of a motive for the killing and
the use of multiple weapons in succession. State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

Initially, we note that the parties’ opening and closing statements, in which the State
would have argued its theory of the case to the jury, have not been included in the record on
appeal. According to the State’s brief, the prosecution’s theory of the case was that the
appellant “killed his mother and dismembered her body and hid it to conceal his crime.”

The exact circumstances surrounding the victim’s death were not revealed at trial. The
appellant told Detective Grooms that he found the intoxicated victim on the porch, cleaned
her up, and put her to bed. The next day, Saturday, he checked on her. On Sunday, he found
the victim dead. The appellant also told Smith and Powell that he found the victim dead, and
Dr. Laboy could not determine her exact cause of death. The State presented no evidence

1
In stating the issue, the appellant has combined his sufficiency of the evidence claim with his claim
that the trial court should have severed the offenses. However, the appellant clearly says that the evidence
is insufficient to support the conviction for first degree murder.

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that the appellant made declarations of an intent to kill the victim, that he procured and used
a deadly weapon on the unarmed victim, that the manner of the killing was particularly cruel,
that he inflicted multiple wounds upon the victim, or that he prepared before the murder to
conceal the crime. The State also produced no evidence regarding his calmness immediately
after the killing, his motive, or his use of multiple weapons in succession. As for the
appellant’s destruction of evidence, this alone will not suffice for premeditation. See State
v. Shepherd, 862 S.W.2d 557, 565 (Tenn. Crim. App. 1992) (“The inference of guilt which
may flow from flight, concealment of the body, and false statements is a general one and
does not provide weight to the degree of homicide which may be involved.”) (citing Waldie
v. State, 230 S.W.2d 993, 995 (Tenn. 1950)). Therefore, the evidence is insufficient to show
that the appellant killed the victim with premeditation.

The evidence is sufficient to show, however, that the appellant had a history of
abusing the victim and that he physically abused her two days before she died. The appellant
told Smith and Powell, “I’ll bash your head in like I did that [f***ing] bitch.” He also told
them, “The last person that pissed me off I bashed their [f***ing] head in.” Taken in the
light most favorable to the State, the jury could have found that the appellant killed the victim
intentionally. Therefore, the evidence is sufficient to support the lesser-included offense of
second degree murder, which is the knowing killing of another. See Tenn. Code Ann. §
39-13-210(a)(1); see also Tenn Code Ann. § 39-11-301(a)(2) (“When acting knowingly
suffices to establish an element, that element is also established if a person acts
intentionally.”). The appellant’s conviction is reduced to second degree murder, and the case
is remanded to the trial court for resentencing.

2. Abuse of a Corpse

Regarding his abuse of a corpse conviction, the appellant contends that he established
the affirmative defense of insanity by clear and convincing evidence and, therefore, should
have been found not guilty by reason of insanity. The State contends that the jury properly
rejected the appellant’s insanity defense. We agree with the State.

Abuse of a corpse occurs when a person, without legal privilege, knowingly
“[p]hysically mistreats a corpse in a manner offensive to the sensibilities of an ordinary
person.” Tenn. Code Ann. § 39-17-312(a)(1). The current insanity defense provides as
follows:

It is an affirmative defense to prosecution that, at the time of the
commission of the acts constituting the offense, the defendant,
as a result of a severe mental disease or defect, was unable to
appreciate the nature or wrongfulness of such defendant’s acts.

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 Mental disease or defect does not otherwise constitute a defense.
The defendant has the burden of proving the defense of insanity
by clear and convincing evidence.

Tenn. Code Ann. § 39-11-501(a). Evidence is clear and convincing when “there is no serious
or substantial doubt about the correctness of the conclusions to be drawn from the evidence.”
State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999).

Taken in the light most favorable to the State, we conclude that a reasonable trier of
fact could have found that the appellant failed to establish by clear and convincing evidence
that, as a result of a severe mental disease or defect, he was unable to appreciate the nature
and wrongfulness of his acts. The parties presented conflicting expert opinions regarding the
appellant’s mental state at the time of the dismemberment. Dr. Kennon testified for the
defense that the appellant became delusional after the victim’s death and could not appreciate
the wrongfulness of his conduct. However, Dr. Craddock concluded that the appellant never
suffered from a severe mental disease or defect. Moreover, the evidence established that the
appellant went to methodical lengths to conceal the victim’s death and dismemberment,
telling her family that she left with Ray and forging a Christmas card to her sister. As our
supreme court has explained, “The weight and value to be given expert testimony is a
question for the jury. . . . Where there is a conflict in the evidence, the trier of fact is not
required to accept expert testimony over other evidence and must determine the weight and
credibility of each in light of all the facts and circumstances of the case.” State v. Flake, 88
S.W.3d 540, 554 (Tenn. 2002) (citations omitted). Given the evidence, a rational trier of fact
could have rejected the appellant’s insanity defense. The evidence is sufficient to support
the conviction for abuse of a corpse.

B. Motion to Sever

The appellant contends that the trial court should have granted his motion to sever the
offenses. The State contends that the trial court properly denied the motion. We agree with
the State.

The appellant was charged with both offenses in the same indictment. Before trial,
he filed a motion to sever. At the motion hearing, the defense argued that the offenses should
be severed because the abuse of a corpse case was extremely prejudicial to the murder case
and because the evidence introduced at one trial would be inadmissible at the second trial.
In support of the latter argument, defense counsel stated that he would be presenting an
insanity defense on the abuse of a corpse charge but not on the murder charge and that
photographs of the dismembered victim would be inadmissible at the trial on the murder
charge because they were highly prejudicial. Without any explanation, the trial court denied

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the motion.

Tennessee Rule of Criminal Procedure 8(b) states that two or more offenses may be
joined in the same indictment if the offenses constitute parts of a common scheme or plan
or if they are of the same or similar character. Tenn. R. Crim. P. 8(b)(1), (2). Tennessee
Rule of Criminal Procedure 13(b) provides that the trial court may order severance of
offenses prior to trial if such severance could be obtained on motion of a defendant or the
State pursuant to Rule 14. Rule 14(b)(1) provides that “[i]f two or more offenses are joined
or consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of
the offenses unless the offenses are part of a common scheme or plan and the evidence of one
would be admissible in the trial of the others.”

Our supreme court has held that “decisions to consolidate or sever offenses pursuant
to Rules 8(b) and 14(b)(1) are to be reviewed for an abuse of discretion.” State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999). “A holding of abuse of discretion reflects that the trial
court’s logic and reasoning was improper when viewed in light of the factual circumstances
and relevant legal principles involved in a particular case.” State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999).

In examining a trial court’s ruling on a severance issue, the primary consideration is
whether the evidence of one offense would be admissible in the trial of the other if the
offenses remained severed. See Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000).
Essentially, “any question as to whether offenses should be tried separately pursuant to Rule
14(b)(1) is ‘really a question of evidentiary relevance.’” Id. (quoting Moore, 6 S.W.3d at
239). As such, the trial court must determine from the evidence presented that

(1) the multiple offenses constitute parts of a common scheme
or plan, (2) evidence of each offense is relevant to some material
issue in the trial of all the other offenses, and (3) the probative
value of the evidence of other offenses is not outweighed by the
prejudicial effect that admission of the evidence would have on
the defendant.

Id. (citations omitted).

This court previously has concluded, “A common scheme or plan for severance
purposes is the same as a common scheme or plan for evidentiary purposes.” State v. Hoyt,
928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by Spicer, 12
S.W.3d at 447. Typically, common scheme or plan evidence tends to fall into one of the
following three categories:

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 (1) offenses that reveal a distinctive design or are so similar as
to constitute “signature” crimes; (2) offenses that are part of a
larger, continuing plan or conspiracy; and (3) offenses that are
all part of the same criminal transaction.

Moore, 6 S.W.3d at 240.

Initially, we note that the trial court failed to give the parties any explanation for its
denial of the appellant’s motion. Nevertheless, we can conclude that severance was not
required in this case.

The appellant claimed in his statement to Detective Grooms that he found the victim
dead in her bed. He also stated that he disposed of her body by dismembering it, burning part
of it, and burying part of it. However, the State’s theory was that the appellant murdered the
victim and disposed of her body as part of a continuing plan. Thus, the first prong of Rule
14(b)(1) has been met.

Next, we must determine whether Tennessee Rule of Evidence 404(b) would have
allowed evidence of one offense to be admissible in the trial of the other if the offenses had
been severed. Evidence of other crimes may be admissible to show identity, motive, intent,
guilty knowledge, absence of mistake or accident, or a common scheme or plan. See State
v. Morris, 24 S.W.3d 788, 810 (Tenn. 2000) (citing Neil P. Cohen et al., Tennessee Law of
Evidence § 404.6 (3d ed. 1995)). “Concealment of the victim’s body tends to show the guilt
of the accused on the offense of murder.” State v. Furlough, 797 S.W.2d 631, 642 (Tenn.
Crim. App. 1990). Therefore, evidence that the appellant dismembered, burned, and buried
the victim in an attempt to conceal her body was relevant to show he murdered her. Likewise,
evidence that the appellant murdered the victim was relevant to show he had a motive to
dismember, burn, and bury her body. Regarding probative value, we acknowledge that
evidence of the appellant’s abusing his mother’s corpse would be highly prejudicial to his
murder case. On the other hand, the extreme measures taken by the appellant to conceal his
mother’s body also would be highly relevant to show he murdered her. Therefore, we cannot
say that the probative value of the evidence was outweighed by the danger of its prejudicial
effect. The trial court did not err by denying the appellant’s motion to sever.

C. Motion to Suppress

The appellant contends that the trial court should have suppressed his statements to
Detective Grooms because they were involuntary and because he was denied his Fifth
Amendment right to counsel. The State contends that the trial court properly denied the
appellant’s motion to suppress. We conclude that the appellant is not entitled to relief.

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 Before trial, the appellant filed a motion to suppress his statements to Detective
Grooms on the basis that they were involuntary. Specifically, the appellant argued that he
gave the statements after being held in a cold jail cell without a blanket or bed and based
upon promises the detective made to him. In addition, he argued that he was denied his right
to counsel and confined in jail without due process of law.

At the suppression hearing, Detective Grooms testified for the State that on the
morning of January 24, 2008, he and another officer set up a hidden camera in his office “to
be prepared for a statement that we [were] going to get from Mr. Climer.” Later, Detective
Grooms and other officers went to the victim’s home and knocked on the doors, but the
appellant would not answer. The officers left, obtained a search warrant at 1:18 p.m., and
returned to the victim’s house. They arrived as the appellant was exiting the home with one
of his dogs. Detective Grooms said that the officers “took [the appellant] into custody” by
putting handcuffs on him and putting him into a patrol car. The appellant sat in the patrol
car for fifteen or twenty minutes until an officer transported him to jail. Other officers
remained at the victim’s home and searched it for four or five hours. Detective Grooms said
that while officers were searching the victim’s home, the appellant was detained at the jail
“for investigative purposes.” The appellant was held in the “drunk tank,” a holding cell.
Inmates in the drunk tank had toiletries and a mattress to put on the concrete floor. Detective
Grooms said the appellant had not been arrested or charged with a crime at that time.

Detective Grooms testified that he began interviewing the appellant in his office at
10:30 p.m. He acknowledged that the appellant’s interview was video recorded and that he
lied to the appellant by telling him it was not recorded. Detective Grooms said he made one
promise to the appellant, i.e., to telephone the appellant’s father and ask him to pick up the
appellant’s property. Detective Grooms acknowledged that he read Miranda warnings to the
appellant from a waiver of rights form. Detective Grooms said that although the appellant
would not sign the form, there was “[n]o doubt whatsoever” that the appellant understood
his rights. The appellant cried twice during the interview and asked Detective Grooms to
shoot him. In 2005, the victim had accused the appellant of beating her with a flashlight.
Detective Grooms said his theory of the case was that the appellant came home and found
the intoxicated victim. The victim had defecated on herself, the appellant became angry, and
he hit the victim several times. The appellant admitted during his interview that he had hit
the victim previously. However, he never admitted to killing the victim. Detective Grooms
acknowledged that he told the appellant he did not think the appellant killed the victim with
premeditation. He also acknowledged that the appellant may have complained about not
having a blanket in his cell. After the interview, Detective Grooms requested that jailers give
the appellant a blanket and something to eat. He did not know whether the appellant received
a blanket.

-18-
 Detective Grooms testified that on the morning of January 25, he drove the appellant
to an area off Windy City Road in Madison County. They talked during the drive, and their
conversation was audio recorded. During the conversation, the appellant was upset and
crying. Detective Grooms did not advise the appellant of his rights before the appellant
talked to him. The appellant showed Detective Grooms and other officers where he had
buried the victim, and another officer transported the appellant back to jail.

Detective Grooms acknowledged that when he interviewed the appellant on January
26, the appellant’s mood had deteriorated, and the appellant complained about being
awakened every fifteen minutes. Detective Grooms said that he thought the appellant had
been placed on suicide watch and that jailers checked on suicidal inmates every fifteen
minutes.

On cross-examination, Detective Grooms testified that the only lie he told the
appellant during the first interview was that the interview was not being recorded. Detective
Grooms said that the appellant “did not specifically ask for an attorney” during the interview.
Although the appellant asked about getting a court-appointed attorney that night, Detective
Grooms told him no because it was 10:30 p.m. He said he did not try to get the appellant an
attorney the next morning because the appellant never asked for one. Detective Grooms said
that when he started talking with the appellant during the first interview, the appellant
seemed “normal.” However, the appellant began crying and asked Detective Grooms to take
his life, which was abnormal.

Chief Deputy Jeff Maitland of the Gibson County Sheriff’s Department testified that
he was familiar with the policies at the Gibson County Jail. When the appellant arrived at
the jail on January 24, officers would have put him in a holding cell. The appellant would
have received an evening meal and should have received a mattress and a blanket. Toilet
paper would have been in his cell. Depending on the number of people booked into the jail
at the same time as the appellant, it should have taken no more than two or three hours for
the appellant to have been put into the holding cell and to have received a mattress. Detective
Maitland said the temperature in the jail remained sixty-eight to seventy degrees year-round.

On cross-examination, Deputy Maitland acknowledged that he did not have personal
knowledge of the appellant’s situation in the jail and did not know whether the appellant
received a mattress or blanket. Upon questioning by the court, Deputy Maitland stated that
inmates on suicide watch did not receive blankets because the inmates could use the blankets
to harm themselves. Jailers checked on a suicidal inmates every fifteen minutes but did not
wake sleeping inmates.

The appellant did not testify but introduced transcripts of his January 24 and 26

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interviews into evidence. According to the January 24 interview, Detective Grooms
introduced himself to the appellant and told the appellant that “technically you are not under
arrest at this time and you are not being charge with anything.” Detective Grooms told the
appellant that “I just want to talk to you about some things,” that he was going to read the
appellant’s rights, and that “[t]hat’s something we do to everybody that comes in here . . .
that’s our policy.” The appellant answered, “Alright.” Detective Grooms informed the
appellant of his rights and said, “Do you understand your rights? Do you understand what
I have read to you?” The following exchange occurred:

CLIMER: Well I can’t afford a lawyer I can tell you that.

GROOMS: Okay. I just read it to you, if you can’t afford one,
one will be appointed to you. Okay . . . you want to look this
over before [you] sign it and by signing this you are not
admitting to anything. You are just saying that you want to talk
to me.

CLIMER: I don’t really have anything to say I mean I don’t
know.

GROOMS: Okay. I mean do you want to talk to me to see what
I got to say to see what you have to say?

CLIMER: Well, I want to hear what you got to say.

GROOMS: OK then if you don’t mind look that over. You
want to look that over before you sign it? You [are] welcome
to.

CLIMER: You mean I can have an uh an appointed lawyer
right now?

GROOMS: Well, not at this time.

CLIMER: Cause you know uh I know zero about law you know
uh.

GROOMS: Just like it says, if you want to talk we can talk and
you can stop it at any time.

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CLIMER: Well if I am not being charged with anything why,
why is this even being

GROOMS: Because that is police procedure[.]

CLIMER: Well then if I am not being charged with anything
why am I not just cut loose?

GROOMS: Because I need to get a statement from you for one.

CLIMER: It will probably haunt me for signing this.

GROOMS: It’s up to you.

CLIMER: You can get a statement from me without signing
this, can’t you?

GROOMS: [Yeah], I have to write down you refused to sign.
I read your rights to you . . . you understand, isn’t that right?

CLIMER: [Yeah].

GROOMS: I just need you to acknowledge that. Is that true?

CLIMER: Well you gave me this and you read me Miranda.

GROOMS: Ok. You don’t have to sign it. I do want you to
make sure that you understand what I read to you.

CLIMER: I’ve just always been told, don’t....... don’t do
anything that’ll haunt you later on... you know..I, I

....

GROOMS: But you do understand your rights, is that correct?

CLIMER: [Yeah.]

GROOMS: Ok. You have looked over this form.

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 CLIMER: Yes I did.

GROOMS: You feel comfortable talking to me?

CLIMER: Well not really I am scared to death man because uh
I haven’t did anything you know.

GROOMS: Ok. I am not saying that you have. I’m just saying
that I just want to talk to you and basically I know this scares a
lot of people....but we do this....I mean we do this to even
somebody that bothers pets.

....

GROOMS: So you’re not going to sign this? It’s not no big
deal.

CLIMER: Naw I

GROOMS: I am not going to be mad at you or anything[.]

CLIMER: I mean I don’t want to.

GROOMS: Ok but I just want to make sure you understand
your constitutional rights. Ok. You don’t have to sign it. I
mean it’s no big deal. But that’s what I want to talk to you
about you know we’re investigating your mother being
missing[.]

CLIMER: Right [yeah] you know[.]

GROOMS: Do you know....when when was the last time you
seen your Mom?

CLIMER: December the 11th.

The appellant told Detective Grooms the victim left with Ray. The appellant and the
detective continued to talk, mostly about personal matters that had nothing to do with the
crimes. Eventually, Detective Grooms asked the appellant to reveal what happened to the
victim. The appellant said, “I’m scared to without an attorney here.” Detective Grooms

-22-
continued to talk with the appellant. Finally, the appellant told Detective Grooms about
finding the victim intoxicated on the porch, cleaning her up, finding her dead in bed two days
later, and dismembering her.

At the conclusion of the interview, Detective Grooms asked the appellant if he wanted
something to eat, something to drink, and a blanket. The appellant said he wanted something
to eat and drink and that he wanted “[a] blanket definitely.” Detective Grooms said he would
get those things for the appellant.

On January 26, Detective Grooms met with the appellant again. The appellant
immediately complained, “I kinda thought I was going to be treated a little better than this.
No mattress[.]” The appellant also said, “I can’t even sleep without being woke up.”
Detective Grooms apologized “for the mattress part” and told the appellant that his “blanket
and stuff” had been removed from his cell because he was on suicide watch. Detective
Grooms said, “I will get you a mattress and a blanket and all that stuff back.” The appellant
asked what he was being charged with, and Detective Grooms said, “Nothing yet.” He told
the appellant, “You want to talk to me or not? That’s up to you. I can’t force you. If you
say no, then it’s over with.” The following exchange occurred:

Climer: So, what do you want to know?

Grooms: Well, before I ask you I have to read your rights to you
again, David.

Climer: Why is that? You done read them to me once.

Grooms: I know. And you told me you understood them
before. Ain’t that right, huh?

Climer: I thought I did everything I was supposed to already.

Grooms: Well, I just [have] a few questions I need to ask. But
if I read your rights to you and you don’t want to answer them,
that’s your choice.

Climer: Ok.

Grooms: That’s your right.

Climer: I know the Miranda rights.

-23-
Detective Grooms read the appellant’s rights and asked, “Do you want to sign this [form]?”
The appellant said no. Detective Grooms asked the appellant if he understood his rights, and
the appellant said, “I mean, I know what you’re saying. I’ve got the right to have an attorney
here.” Detective Grooms asked the appellant again if he understood his rights, and the
appellant said yes. Detective Grooms began questioning the appellant.

The State argued that the trial court should deny the appellant’s suppression motion
because the appellant understood his rights. The State also argued that the appellant made
an equivocal request for an attorney and, therefore, that Detective Grooms did not have to
stop questioning him. Finally, the State argued that because an arrest warrant was issued for
the appellant at 9:00 a.m. on January 26, 2008, less than forty-eight hours from the time the
appellant was taken into custody, his detention was presumed reasonable.

At the conclusion of the hearing, the trial court stated, “The only two problems that
I’m seeing at this point and I’m not saying that they are a problem. The only two issues that
I think I need to research further are the attorney and . . . what I’m going to call the promises
question.” In a subsequent hearing, the trial court concluded that because the appellant made
an equivocal request for counsel, Detective Grooms did not have to stop questioning him.
In addition, the trial court concluded that the conditions in the jail had not affected the
appellant’s ability to make decisions. The trial court denied the appellant’s motion to
suppress. On appeal, the appellant contends that his confession was involuntary, that he was
denied his right to counsel, and that he was detained in jail without due process of law.

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).

1. Involuntary Confession

The appellant contends that the evidence shows his statements were involuntary
because he was held in the cold jail without a bed or blanket and because he refused to sign
the waiver of rights forms. He also contends that his statements were involuntary because
the detective lied to him, telling him that the first interview was not being recorded, and
made promises to him, telling him that “I will stick with you to the end” and that “I will go
to bat with the DA.”

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 Generally, the Fifth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution provide a privilege against self-incrimination to those
accused of criminal activity, making an inquiry into the voluntariness of a confession
necessary. See State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998). As our supreme court
has explained,

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612,
16 L. Ed. 2d 694 (1966), the United States Supreme Court held
that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against
self-incrimination.” The procedural safeguards must include
warnings prior to any custodial questioning that an accused has
the right to remain silent, that any statement he makes may be
used against him, and that he has the right to an attorney.

State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000). Miranda warnings are necessary only
in situations involving custodial interrogation or its functional equivalent. See, e.g., Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980); State v. Dailey, 273 S.W.3d 94, 102-03 (Tenn.
2009).

Our courts look to the totality of the circumstances surrounding the interrogation to
determine if the criteria for a proper waiver are met. See State v. Van Tran, 864 S.W.2d 465,
472-73 (Tenn. 1993). In doing so, we consider the following factors regarding the
voluntariness of a confession: (1) the appellant’s age, education or intelligence level, and
previous experience with the police; (2) the repeated and prolonged nature of the
interrogation; (3) the length of detention prior to the confession; (4) the lack of any advice
as to constitutional rights; (5) the unnecessary delay in bringing the appellant before the
magistrate prior to the confession; (6) the appellant’s intoxication or ill health at the time the
confession was given; (7) deprivation of food, sleep, or medical attention; (8) any physical
abuse; and (9) 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
[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

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 in the statement.

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

Turning to the instant case, the appellant was forty years old when he made the
statements, possessed a high school diploma, and attended some college classes. According
to his presentence report, he has a lengthy criminal history, having been convicted of driving
under the influence, numerous traffic offenses, misdemeanor theft, possession of marijuana,
carrying a weapon onto school property, and two convictions of assault. He gave his
statements before the seventy-two-hour time frame for being taken in front of a magistrate
expired. See State v. Davis, 141 S.W.3d 600, 625-26 (Tenn. 2004) (stating that “if an
individual is not brought before a magistrate within 72 hours, there has been “unnecessary
delay[]’” (quoting Huddleston, 924 S.W.2d at 670)). The appellant was not intoxicated or
physically ill at the time of the interviews. Detective Grooms advised the appellant of his
rights, and the appellant repeatedly said he understood them. The appellant did not claim
during his first interview that he had been deprived of sleep or food. Instead, Detective
Grooms offered to get the appellant something to eat and a blanket, and the appellant said
he would like to have those things. Although the appellant complained during his second
interview that he did not have a mattress or blanket and was being deprived of sleep, the
testimony at the suppression hearing shows that the blanket and other items had been taken
away from him because he was on suicide watch. Moreover, the appellant did not testify at
the hearing regarding the conditions in his cell. The appellant was not physically abused, and
there were no threats of abuse. In short, the Huddleston factors do not weigh in favor of
finding that the appellant’s statements were involuntary.

We also conclude that Detective Grooms’s merely telling the appellant that their
conversation was not being recorded did not render the appellant’s statements involuntary.
Finally, Detective Grooms never promised leniency to the appellant. See State v. Downey,
259 S.W.3d 723, 736 (Tenn. 2008). Therefore, we conclude that the appellant is not entitled
to relief.

2. Right to Counsel

The appellant contends that his statements should have been suppressed because he
invoked his right to counsel. Although there may be differences between the protections
provided by the United States and Tennessee Constitutions with respect to the right to
counsel, the standard used to determine whether one has validly invoked his right to counsel
is the same under both. See State v. Turner, 305 S.W.3d 508, 517 (Tenn. 2010); see also
Downey, 259 S.W.3d at 731. Once someone requests an attorney, the interrogation must

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cease, and the person may not be subjected “to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Minnick v. Mississippi, 498
U.S. 146, 150 (1990) (quotation marks omitted); see also Maryland v. Shatzer, 130 S. Ct.
1213, 1219 (2010); Turner, 305 S.W.3d at 515-16. At the time of the appellant’s suppression
hearing, our supreme court had held,

The accused “must articulate his desire to have counsel present
sufficiently clearly that a reasonable [police] officer . . . would
understand the statement to be a request for an attorney.” If the
suspect fails to make such an unambiguous statement, police
may continue to question him without clarifying any equivocal
requests for counsel.

State v. Saylor, 117 S.W.3d 239, 246 (Tenn. 2003) (quotation marks and citations omitted).
Nine days after the trial court denied the appellant’s motion to suppress and four days before
the appellant’s trial began, our supreme court clarified that this bright-line rule “applies only
to post-waiver requests for counsel.” Turner, 305 S.W.3d at 519. “Where . . . a suspect
makes an equivocal request for counsel prior to waiving Miranda rights, the police are
limited to questions intended to clarify the request until the suspect either clearly invokes his
right to counsel or waives it.” Id.

Here, the appellant points to the following statement on the first page of the January
24 interview as a request for counsel: “You mean I can have an . . . appointed lawyer right
now?” The trial court found this to be an equivocal request for an attorney. We agree.
Detective Grooms told the appellant that the appellant could not have an attorney at that time,
meaning he could not get an attorney for the appellant at that time of night. He said that he
did not get the appellant an attorney the next morning because the appellant did not ask for
one. However, given that the appellant made his equivocal request prior to waiving his
rights,2 Detective Grooms should have clarified pursuant to Turner whether the appellant
wanted to stop the interview until Detective Grooms could arrange for counsel to meet with
the appellant.

The appellant also points to the following statement on page thirty-one of the

2
Although the appellant refused to sign the waiver of rights forms, he repeatedly said he understood
his rights. Moreover, he has never claimed that he invoked his right to remain silent. Therefore, once he
began answering the officer’s questions, he demonstrated a waiver of his rights. See Berghuis v. Thompkins,
130 S. Ct. 2250, 2261 (2010) (stating that a suspect does not have to waive Miranda rights expressly in order
for the prosecution to show a valid waiver).

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interview as a request for counsel: “I’m scared to [talk with you] without an attorney here.”
We agree that this statement was a second equivocal request for counsel. However, the
`appellant made the second statement post-waiver. Therefore, pursuant to Saylor, Detective
Grooms did not have to stop the interview and clarify the appellant’s request.

Regarding Detective Grooms’s improper failure to clarify the appellant’s initial
equivocal request for counsel, we hold that the error was harmless because the appellant did
not implicate himself in the victim’s disappearance, death, or dismemberment during the first
thirty pages of the interview. See Tenn. R. App. P. 36(b). Although the appellant told
Detective Grooms on page thirteen of the interview that he had hit the victim previously,
other witnesses, including the appellant’s own expert, testified that the appellant had a history
of abusing the victim. Therefore, the appellant is not entitled to relief.

3. Detained Without Due Process

The appellant argues, without any explanation or citation to authorities, that he was
denied due process of law because he was confined in jail from January 24, 2008, to March
3, 2008. He also argues that he was denied due process because he was detained for more
than forty-eight hours without a valid determination on probable cause. At the suppression
hearing, the appellant introduced two documents into evidence: a “booking sheet,” showing
that he arrived in the jail on January 24, 2008, and an affidavit of complaint, showing that
an arrest warrant was issued on January 26, 2008. The appellant presented no testimony
regarding the issue, and the trial court inherently concluded that there was no merit to the
appellant’s claim. We conclude that the appellant presented insufficient evidence at the
hearing for us to determine whether he was detained without due process of law.

C. Speedy Trial

The appellant contends that he was denied his right to a speedy trial. The State argues
that the appellant’s right to a speedy trial was not violated. We agree with the State.

Both the Sixth Amendment to the United States Constitution and article 1, section 9
of the Tennessee Constitution guarantee an accused the right to a speedy trial. An identical
right is found in Tennessee Code Annotated section 40-14-101, which provides, “In all
criminal prosecutions, the accused is entitled to a speedy trial and to be heard in person and
by counsel.” Moreover, Rule 48(b) of the Tennessee Rules of Criminal Procedure provides
that if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the
indictment, presentment, information, or complaint. These guarantees were designed “to
protect the accused against oppressive pre-trial incarceration, the anxiety and concern due
to unresolved criminal charges, and the risk that evidence will be lost or memories

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diminished.” State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997) (citing Doggett v. United
States, 505 U.S. 647, 654 (1992)). In reviewing the trial court’s determination regarding
whether a defendant’s right to a speedy trial was violated, this court should use an abuse of
discretion standard. See State v. Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996).

The right to a speedy trial is implicated when there is an arrest or a formal grand jury
accusation. Id. at 491. To determine whether a defendant’s constitutional right to a speedy
trial has been violated this court must conduct the balancing test set forth in Barker v. Wingo,
407 U.S. 514 (1972). State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614
S.W.2d 352, 353 (Tenn. 1981); State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973). Under
the Barker analysis, the following four factors must be considered: (1) the length of the
delay; (2) the reasons for the delay; (3) the accused’s assertion of the right to a speedy trial;
and (4) the prejudice resulting from the delay. Barker, 407 U.S. at 530.

We note that the appellant filed a demand for a speedy trial on June 12, 2009, but that
he did not move to dismiss the indictment for failure to provide a speedy trial. Moreover, he
has not cited to any portion of the appellate record where he asked the trial court to dismiss
the indictment based upon the denial of the right to a speedy trial. Panels of this court have
held that a defendant’s failure to file a motion to dismiss waives the issue. See State v. John
Tyree Lytle, No. E2003-01119-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 399, at **6-7
(Knoxville, May 3, 2004); State v. Thomas E. Davenport, No. M2000-00317-CCA-R3-CD,
2000 Tenn. Crim. App. LEXIS 903, at **7-8 (Tenn. Crim. App. Nov. 17, 2000); State v.
James W. Aldridge, C.C.A. No. 6, 1990 Tenn. Crim. App. LEXIS 682, at **11-12 (Jackson,
October 10, 1990). However, published authority supports a contrary result. See Bishop,
493 S.W.2d at 84 (stating that even a defendant’s failure to demand a speedy trial does not
waive the issue); see also State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD,
2002 Tenn. Crim. App. LEXIS 550, at *88 (Tenn. Crim. App. June 28, 2002) (citing Barker
and Bishop and noting the same), perm. to appeal denied, (Tenn. 2003). Therefore, we will
consider whether the appellant’s right to a speedy trial was violated.

A delay of one year or longer will trigger an inquiry into a speedy trial violation. See
State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001). In the instant case, the appellant was
arrested on January 24, 2008,3 but was not tried for the offenses until March 2010. Thus, the

3
We note that Detective Grooms testified at trial and at the suppression hearing that the appellant
was not under arrest on January 24, 2008. However, he also testified that police officers “took [the appellant]
into custody” on January 24, 2008, handcuffed him, put him into a patrol car, and transported him to jail. The
appellant was booked and placed into a holding cell, where he remained for eight hours until Detective
Grooms began interviewing him. The appellant asked why he could not leave, and Detective Grooms told
him, “Because I need to get a statement from you.” On page thirty-three of the interview, the appellant
(continued...)

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delay meets the threshold for consideration of the other factors.

The second factor, the reason for delay, generally falls into one of four categories: “(1)
intentional delay to gain a tactical advantage over the defense or delay designed to harass the
defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and
effective prosecution of the case; and (4) delay caused, or acquiesced in, by the defense.”
State v. Wood, 924 S.W.2d 342, 346-47 (Tenn. 1996) (footnotes omitted). The appellant
contends that the State’s acts caused the delay, arguing that the State did not file a response
to his motion for discovery until March 9, 2009, and that orders directing mental evaluations
for him were not filed until June 23, 2009, and August 6, 2009. However, the appellant does
not argue that the delay was intentional to gain a tactical advantage over the defense, was
deigned to harass him, or was due to indifference or negligence. Moreover, our review of
the record shows that part of the delay was caused by the defense. For example, the appellant
did not file a motion to suppress his statements until October 9, 2009, and did not file a
response to the State’s March 9, 2009 request for discovery until March 5, 2010, just
eighteen days before trial. We also note that although Dr. Symes received the victim’s bones
for analysis on June 26, 2008, his written report was not completed until August 11, 2009,
demonstrating that the delay also was necessary for the fair and effective prosecution of the
case. Therefore, this factor does not weigh in favor of the appellant.

Next, we must consider the appellant’s assertion of the right to a speedy trial.
Assertion of the right to a speedy trial by a defendant is given great weight in the
determination of whether the right was denied. Barker, 407 U.S. at 531-32. “Failure to
assert the right implies a defendant does not actively seek a swift trial.” Wood, 924 S.W.2d
at 347. In this case, the appellant asserted his right to a speedy trial on June 12, 2009, almost
eighteen months after his arrest. Thus, this factor does not weigh heavily in his favor.

Finally, we must consider prejudice to the appellant. This is the “final and most
important factor in the [speedy trial] analysis.” Simmons, 54 S.W.3d at 760. “Courts do not
necessarily require a defendant to affirmatively prove particularized prejudice.” Id. (citing
Doggett, 505 U.S. at 654-55. Our supreme court has explained that “when evaluating this
factor courts must be aware that the speedy trial right is designed: (1) to prevent undue and
oppressive incarceration prior to trial; (2) to minimize anxiety and concern accompanying

3
(...continued)
mentioned that he was wearing shackles. A person is under arrest when there is an “actual restraint on the
[person’s] freedom of movement under legal authority of the arresting officer.” State v. Crutcher, 989
S.W.2d 295, 301-02 (Tenn. 1999). Despite Detective Grooms’s claim to the contrary, the appellant clearly
was under arrest on January 24, 2008.

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public accusation; and (3) to limit the possibilities that long delay will impair the defense.”
Id.

The appellant contends that his “lengthy delay and incarceration” resulted in his being
confined in a jail cell with Smith and Powell, where he “‘went mad’” and made incriminating
statements. However, the appellant shared the same cell with Powell and Smith in mid-
March 2008, a mere two months after his arrest. Therefore, any prejudice to the appellant
that resulted from his being confined with Smith and Powell cannot be attributed to a delay
in his trial. The appellant offers no other explanation as to how he was prejudiced by the
delay. Therefore, we conclude that the State’s delayed prosecution of the appellant did not
violate his right to a speedy trial.

E. Failure to Dismiss Juror for Cause

Finally, the appellant contends that the trial court erred by failing to dismiss juror
Yates for cause because Yates stated during voir dire that she had read information about the
case in the newspaper and had reached a conclusion on the appellant’s guilt. The State
contends that the trial court properly refused to dismiss Yates from the panel because she said
she could be impartial. We conclude that the appellant is not entitled to relief.

During jury voir dire, prospective juror Yates informed the State that she had read
about the case in the newspaper “[b]ack when it happened.” The State asked if she had
formed any opinion about the appellant’s guilt, and she answered, “That would be hard to
say.” The following exchange occurred:

[The State]: So you have an idea?

MS. YATES: Uh huh.

[The State]: You haven’t sat down and formally thought
about it and formed that opinion.

MS. YATES: Right.

[The State]: But you have an idea?

(Ms. Yates indicated affirmatively.)

[The State]: And you base that upon what you read in the
paper?

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 MS. YATES: Yes.

[The State]: I’ll bet you would agree that everything you
read in the paper is not always correct.

MS. YATES: You’re right. It’s not always true.

[The State]: Would you be able to set that aside and your
general thinking or your general idea of whether or not he’s
guilty or not guilty and base your opinion on what you hear in
this courtroom over the next couple of days?

MS. YATES: Yes.

[The State]: You could do that?

MS. YATES: Uh huh.

Upon being questioned by defense counsel, Yates stated that she had not seen or heard
anything about the case on television or radio. She said that when she read about the case
in the newspaper, she “just wondered how a person could do that.” She said that “[a] lot of
times what you read in the paper is not actually the actual truth” but acknowledged that there
was a chance she could not be impartial. The trial court asked her, “What do you think you
will do in terms of partiality or impartiality?” Yates stated, “I think I can be impartial.”
Defense counsel challenged Yates for cause, but the trial court refused, stating, “I’m satisfied
with the answer she gave.”

Both the United States and Tennessee Constitutions guarantee a criminal defendant
the right to a trial by an impartial jury. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9.
Parties in civil and criminal cases are granted “an absolute right to examine prospective
jurors” in an effort to determine they are competent. See Tenn. Code Ann. § 22-3-101. “A
court may discharge from service a grand or petit juror . . . for any other reasonable or proper
cause, to be judged by the court. That a state of mind exists on the juror’s part that will
prevent the juror from acting impartially shall constitute such cause.” Tenn. Code Ann. §
22-1-105. Therefore, trial courts have “wide discretion in ruling on the qualifications of a
juror.” State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993). Absent an abuse of discretion,
this court will not overturn the trial court’s ruling. Burns v. State, 591 S.W.2d 780, 782
(Tenn. Crim. App. 1979). Irrespective of whether the trial judge should have excluded a
challenged juror for cause, any possible error is harmless unless the jury who actually heard
the case was not fair and impartial. Howell, 868 S.W.2d at 248; State v. Thompson, 768

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S.W.2d 239, 246 (Tenn. 1989). The failure to correctly excuse a juror for cause is grounds
for reversal only if the defendant exhausts all of his peremptory challenges and an
incompetent juror is forced upon him. Ross v. Oklahoma, 487 U.S. 81, 89 (1988); State v.
Jones, 789 S.W.2d 545, 549 (Tenn. 1990).

Yates told the State that she would be able to set aside what she had read in the
newspaper and decide the appellant’s guilt based on the evidence presented. Upon being
questioned by the trial court, she again stated that she thought she could be impartial.
Regardless, the appellant has not shown that the jury was not fair or impartial. Thus, he is
not entitled to relief.

III. Conclusion

The evidence is insufficient to support the appellant’s conviction of first degree
premeditated murder but sufficient to support a conviction for the lesser-included offense of
second degree murder. Therefore, the appellant’s conviction is reduced to second degree
murder, and the case is remanded to the trial court for resentencing. The appellant’s
conviction for abuse of a corpse is affirmed.

_________________________________
NORMA McGEE OGLE, JUDGE

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