State v. Rudolph Munn

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
AUGUST SESSION, 1998 April 1, 1999

Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801-CC-00007
)
Appellee, )
) RUTHERFORD COU NTY
V. )
)
) HON . JAME S K. C LAYTO N, JR.,
RUDOLPH MUNN, ) JUDGE
)
Appe llant. ) (FIRST D EGRE E MU RDER )

FOR THE APPELLANT: FOR THE APPELLEE:

J. STANLEY ROGERS JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter

CHRISTINA HENLEY DUNCAN JOHN P. CAULEY
Attorney at Law Assistant Attorney General
Rogers Richardson & Duncan 2nd Floor, Cordell Hull Building
100 North Spring Street 425 Fifth Avenue North
Manchester, TN 37355 Nashville, TN 37243

JOHN G. MITCHELL, JR. WILLIAM C. WHITESELL, JR.
Attorney at Law District Attorn ey Ge neral
P.O. Box 1336
Murfreesboro, TN 37130 J. PAUL NEWMAN
Assistant District Attorney General
Judicial Building Suite 303
20 N. Pub lic Square
Murfreesboro, TN 37130

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
 OPINION

The Defendant, Rudolph (Rudy) Munn, appeals as of right his conviction of

premeditated first degre e mu rder in the Circuit Cou rt of Rutherford C ounty. The jury

sentenced Defen dant to life w ithout the p ossibility of pa role. In this ap peal,

Defendant raises the following twelve (12) issues:

I. Did the trial court err in denying De fendan t’s motion to
suppress the video taped sta tements o btaine d in
violation of his Four th Amendment rights and in violation
of federal and state wiretap laws;

II. Did the trial court err in denying Defen dant’s m otion to
suppress because Defendant was n ot prop erly advised
of his Miranda rights and did not know ingly wa ive his
Miranda rights prior to makin g the state ments
(Defenda nt’s Issue III);

III. Did the trial court e rr in den ying D efend ant’s motion to
suppress because the statemen ts were not volun tary
(Defenda nt’s Issue II);

IV. Did the trial court e rr in den ying D efend ant’s motion to
suppress because the state men ts were taken in
violation of h is Fifth Am endm ent right to c ounse l;

V. Did the trial cou rt err in not suppressing Defendant’s
subsequent statements under the derivative evidence
rule;

VI. W a s there sufficient evidenc e to convict Defen dant o f
first degree murde r beyond a reaso nable d oubt;

VII. Did the trial cou rt err in failing to declare a mistria l
during th e guilt pha se of the tria l;

VIII. Is the felony murder aggravating circumstance
supported by the evidence;

IX. Did the trial court err in its charges to the jury during the
sente ncing phas e of the trial:

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 A. Did the trial court err in charging the
jury with aggravating circumstances
(i)(6) and (i)(7);

B. Did the trial c ourt er r in failing to
instruct the jury on the statutory
definitions of theft and rob bery;

C. Did the trial court err in not
instructing the jury that Defendant
had “ n o c r im inal record or
conviction” as requested by
Defen dant;

D. Did the trial court err in not charging
Tennessee Pattern Jury Instruction
43.03 during the sentencing phase
of trial;

X. Did the trial court err in admitting certain testimony of
Valer ie Ros coe a nd O fficer Pe el;

XI. Did the trial cour t err in its responses/instru ctions to
questions asked by the jury during deliberations; and

XII. Did the trial court err in allowing the jury to view the
video tape of Defendant’s confes sion d uring
deliberatio ns at the s entenc ing pha se of the tria l.

After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.

Facts

The facts pres ented a t trial reveal that on November 28, 1995, at

appro ximate ly 6:13 p.m., the M urfreesboro Police Department received a call that

the body of a white male had been found in the Day s Inn par king lot on South

Church Street in Murfreesboro, Tennessee. The police arrived a few minutes later

and conducted a crime scene investigation during which they discovered the body

was that of a wh ite male w ith a woun d to the he ad. A pock et knife with the blade

open was located n ext to the bo dy, and th e front po ckets of th e victim’s p ants were

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turned inside-out. The body was lying close to the back of a car that was being

towed by a motor home. No wallet, keys, or other items of identification were found

on the body, and no one at the scene knew the identity of the person. An

investigation of the mo tel registry, motel rooms, and surrounding crime scene

revealed no evide nce reg arding th e victim’s ide ntity.

On November 29, 1995, a medical examination and autop sy were performed

on the victim, but again no evidence was discove red which reve aled his identity.

The autops y report did reveal tha t the victim h ad died as a resu lt of a conta ct

gunshot wound to the head with the bullet traversing the brain.

For the two days following the dis cover y of the b ody, the police contin ued th eir

search for the identity of the victim. The police placed a picture of the victim in the

med ia urging citizens to ass ist in identifying the victim. In response, the police

received a call on November 30, 1995, from a pers on wh o thou ght the victim c ould

possibly be Andrew Poklemba, a student at Middle Tennessee State University

(MTS U).

In an atte mpt to verify this information, Officers Eddie Peel and Chris Guthrie,

both of the Murfre esboro Police D epartm ent, along with several other officers, went

to Andr ew Po klem ba’s dormitory room on Novem ber 30, 1995 . Shortly thereafter,

Pokle mba ’s roomm ate, the D efenda nt, arrived at the room. Defendant told the

officers that he ha d not seen his room mate since about 3:45 p .m. Mond ay,

November 27, 1995. Officer Peel asked Defendant if he had any pictures of

Poklemba, and Defendant found two ph otogra phs w hich h e gave to Offic er Pe el.

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After looking at the photos, the officers knew that the victim was in fact Andrew

Poklem ba.

In order to gather further information about Poklemba and his death, the

officers briefly interviewed Defendant in his dorm room. Defendant denied any

personal knowledge of Poklemba’s death or of any motive on anyone’s part to

murder Pokle mba . Defe ndan t did tell investigators that an unknown person came to

see Poklemba on the Sunday proceeding his death. According to Defendant, the

man who came to visit Poklemba had short ha ir and wo re com bat boo ts. Defendant

gave the police an alibi for where he was on the evening Poklemba was killed. He

claimed to have been with a friend named Dennis Bova on the evening of the

murder. However, the police obtained phone records from Defendant’s dorm room

which indicated that Defendant was in his room that evening. Dete ctives G uthrie

and Peel later located Pokle mba ’s vehicle in the vicinity of Abernathy Hall, an MTSU

camp us dorm itory.

On December 1, 1995, after co nduc ting oth er interv iews w ith peo ple who also

knew Poklemba, Officers Peel and Guthrie noticed several discrepancies in the

details given to the m by D efenda nt. These included knowledge that Defendant was

not with his friend Dennis Bova on the evening of the murder as Defendant had

previo usly told the office rs. In fact, at this point the officers had obtained the phone

records of Defendant’s dorm room in determining his whereabouts on the night of

the murder. The officers believed that Defendant had more information about

Poklemba than he had told them the previous day. That afternoon, Officer Peel

contacted Defen dant at his parents’ home in Manchester, Tennessee, and asked

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him if he wo uld assist them in the clarification of thes e deta ils. Defe ndan t volunta rily

agreed to com e to the po lice station to answe r additiona l question s.

At approxim ately 5:00 p.m. on December 1, 1995, Defendant, his parents, and

his two-year-old sister arrived at the police station. Officers Peel and Guthrie,

Defen dant, and h is father, Ron Munn, then went to the third floor where they w ere

escorted into the po lice station in terview/interrogation room, with a sign, “Felony

Booking Room,” over the door. It was equipped with blin ds on the win dows , a sm all

table, chairs, and an audio tape recorder on the table. Unbe known st to Defe ndant,

the room was permanently equipped with a video camera which was hidden in the

clock on the wall. Microphones were in the ceiling above the table and chairs. The

officers did not inform Defendant that the conversations were being recorded by a

hidden video camera and microphones. In another room within the police

department were several video cassette recorders and a monitor. The

conversations in the F elony B ookin g Roo m co uld be monitored by other o fficers in

the sep arate roo m while they were being re corded .

After the four men were seated, Officer Guthrie explained that he was turning

on the tape recorder on the table. He also stated that no one was under arrest and

said that Defendant could leave at anytime. Defendant’s response indicated that he

understood this. Both Officers Peel and Guthrie inquired about the discrepancies

in Defe ndan t’s story, b ut De fenda nt gen erally stayed with his original story. About

twenty minutes into the questioning, Officer Peel asked Defenda nt if he wanted a

Coke, to which Defe ndant responded “yes.” Officer Peel then left the room and

returned with a C oke fo r him. A t no tim e did Defendant state that he wanted to leave

or that he wanted an attorney. At the conclusion of the 54-minute interview, Officer

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Peel indicated that Defendant and his father were free to go and es corted th em to

the lobby where Defendant’s mother, Rita Munn, and Defe ndan t’s little sister were

waiting.

Officer Peel asked Mr. Munn to explain to his wife that Defendant might be

asked to retur n to the station if more inform ation was ne eded. Mrs. M unn was ve ry

upset and she asked Lieutenant Peel if he thought that Defendant had killed

Poklemba. Lieutenant Peel responded, “Ask your son.” Mrs. Munn did so and

Defendant did not respond. Further conversation ensued among them. Officer Peel

stated that he would like to ta lk to Defe ndant o utside the presen ce of his p arents

because he felt that Defendant would come closer to telling the truth if they were not

in the roo m. Rita Munn testified that Lieutenant Peel kept staring at her as if he

wanted her to “get involved in the process,” and that she felt that they were no longer

free to leave at that time. Mrs. Munn then ask ed De fendan t if he wante d to talk with

the police furth er and h e replied th at he did. They all proceeded to the third floor and

Officers Peel and Guthrie and Defendant went in the Felony Bo oking Roo m while Mr.

and M rs. Munn and the little sister waited outside in the hallwa y.

Again, Office r Pee l started the ca ssette record er on th e table and told

Defendant that he w as not un der arres t, that he had voluntarily come to the police

station, and that he could leave at any time he wished. Defendant indicated that he

understood. The officers told Defendant that they thought he knew more than he

was telling them. Specifically, Officer G uthrie state d, “It’s time to te ll it [the truth].”

Officer Peel then stated, “You know who killed him, don ’t you?” A fe w minu tes into

the interview, Officer Peel re ques ted tha t Defe ndan t provid e him with a c opy of h is

fingerprints. Defen dant to ld them that he did no t want to give his fingerprints that

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night. Specifica lly, he said, “C ould I com e . . . do it next we ek whe n my pa rents

aren’t here? I’ll call you and I can come down here.” The o fficers th en told

Defendant that they had a witness who would say he saw Defendant and the victim

arguing the day before the victim was killed. At one point during the interview,

Defe ndan t’s contact popped out. Defendant asked the officers if a mirror was

available. Although a bathroom was located just outside the Felony Booking Room,

the officer told Defendant to pull the blind up on the window and use its reflection for

a mirror. Th ere is no in dication th at Defen dant knew a bathroom was located just

outside the interview room. At least three more times during this interview, the

officers told Defendant that they knew he was not telling th e truth a nd the y urge d him

to tell all that he kn ew. D efend ant ag ain sa id he would rather come back on Monday

and be fingerp rinted. Th e officers to ld him, “N ow’s the tim e to do it [tell the tru th],

with momma and daddy here to support you and be with you .” Office r Pee l then to ld

Defendant the following:

I’m gonn a tell you your m omm a’s gonna ask me if I think
you did it. And I’m gonna say momma yes I do. And you
know w hat she ’s gonna do. She ’s gonna have a fit.

Again, Defendant stated that he would rather come back and talk to the officers later.

At this point, Rita Munn opened the door and came into the interview room.

Mrs. Munn indicated that she had b een listening ou tside the door an d had hea rd

what they were saying. She told the officers, “This sounds like the kind of thing ___

need ___ lawyer ___.” (The blanks represent portions of the transcripts and tapes

that are inaudible.) Officer Peel told her that “[a]ll you have to do is say you want

one.” Mrs. Munn asked the officers, “You’re not intimidating him to tell you

some thing?” D efenda nt then re spond ed, “Th ey’re not. T hey’re be ing nice.”

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 Mrs. Munn began to plead w ith her son , in the pres ence o f the officers, that

he should explain what happened. The following is an excerpt of her emotional plea:

You know that if we do n’t get it out in the open, the n ext
stop is we’ll go to a lawyer’s office and we’ll have to go
through all this or he’ll have to make you get it out in the
open becau se soo ner or later we’ll have to all get it out in
the open. Even if you went to confession. The first thing
Father Kurt would say is tell me what happened. If you
were to walk out of this b[uilding] and die tonight, that
would be enough for certain if you lied to these men or
avoid telling them something, then that would be enough
to keep you out of heaven. Is this worth eternal
damnation? Do you understand? Is this worth that? I
don’t think so . You c an’t go to com mun ion and take the
body of Christ and be lieve all that and not believe that he
does n’t love you too, and wo n’t forgive you . That’s the first
step. We can’t take the first step until we know what
you’ve done. We w ill not abandon yo u Rudy. W e love
you too much for that. Yeah. But please, this is like
bleeding an open wound. Can we just get to the end of it?
Please? Okay? Please?

...

They [the officers] think there’s more, they thin k there ’s
more. And you have ___ okay, let’s just get to the end. I’ll
pray for you, okay? Okay? I’ll help you. What happened?

Defen dant res ponde d by sayin g, “I told them what ha ppene d mom ma.”

Officer Guth rie then admitted to Mrs. Munn that they thought Defendant killed

the victim. Specifically, Officer Peel stated:

I think that for whatever reason it was, he and Andrew.
Went to this motel. Andrew was shot. Andrew’s car was
brought back and p arked next to w here y our da ughte r’s
dorm is and left the re. And w hoever d id it, walked on off.
And the discrepan cies in his story, that he’s told, makes us
believe that he was the one that done it. All I’m gonna do
is what I’m gonna do.

Officer Peel then inform ed Mrs. Munn that her son had asked to come back on

Monday to speak further with them.

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 Later in that interview, Officer Peel asked Rita Munn, “Do you want to talk to

us or do you want to talk to him by himself?” Officer Peel then asked Defendant, “Do

you want to talk to your m omm a? Or do yo u want to talk to us? ” Momen ts later,

Officer Guthrie a sked D efenda nt again, “D o you wa nt to talk to your momma by

yourself?” Defend ant resp onded , “Yeah.” De fendan t did not spec ifically ask to

leave or to consu lt with an attor ney at an y time. Bo th officers left th e room . The

door to the Felony Booking Room was then closed but not locked. Throughout the

interview there had been the distant sounds of people outside the door, as

evidenced in the video tapes. Officer Peel went into the hall area and O fficer G uthrie

went in and out of the separate video monitoring room.

Mrs. Munn sat close to Defen dant, touc hed him on his kn ee, and pleade d with

him to tell the officers what they wanted to k now. Defen dant then told his m other,

“I shot him.” Defendant proceeded to tell his mother that he shot the victim “[F]or the

money. I told him I was gonna pay him late. I borrowed his gun and sold it, and I

shot him. Didn’t have any intention of paying the money.” At one point, Defendant

provides the following detailed statem ent to his moth er:

W ell, we had to go somewhere else. I told him we were
going to go ___ and meet somebody but he ___ the
license plates on the car, so if we did get ca ught it w ould
be hard to find when we did that, wh en he k nelt dow n to
unscrew the license plate. Then I shot him in the back of
his head. He fell down and I rolled h im ove r and to ok his
license a nd wallet.

Mrs. Munn asked Defendant why he changed the license plates on the car and

Defenda nt responde d, “hard to find me .”

Defendant goes on to tell his mother the following:

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 I didn’t like the kid from the ver y begin ning. I h ated h im
with a passion and ___ was the first time. I couldn’t stand
the kid. He used to pick on me beca use I wasn’t as s mart
as he was . I hated him. I couldn’t stand him. He
disgusted me. He had pornographic magazines in the
room, it was disgusting.

Mrs. Munn testified that she thought she and Defendant were alone and that

no one was listening or recording their conversations. Defendant asked his mother

to “Go find th e police s o I can tell the m.” Mrs. Munn told Defendant to “[s]tay right

here [in the interroga tion room ].”

Mrs. Munn then we nt and fou nd Office r Peel an d aske d him to accompany her

inside the Felony Booking Room where she expressed her confusion about what she

shou ld do. De fenda nt then stated to his mother, “Why don’t yo u go a head and te ll

them?” Mrs. Munn then stated, “He says he shot [the victim].” Defendant

interjected, “.22 caliber, is that what you found?” Officer Peel asked if Defendant

wanted to tell the m ab out it an d Def enda nt said , “Don ’t turn on the tap e, I wou ld

rather not tape it.” Following this excha nge, Mr s. Munn asked , “Don’t we have to

have a lawyer?” Officer Peel stated “If you want one, it’s up to you, just whatever

you want to do.” Defendant did not ask for an atto rney n or did he ask to leave the

room. Mrs. Munn expressed a desire to talk with her h usban d and late r asked to

speak with Officer Peel alone. Mrs. Munn and Officer Peel exited the room leaving

Officer G uthrie an d Defe ndant a lone.

Later, Defe ndant’s father and his two-year-old sister entered the interview

room. In the pres ence o f Officer Guthrie, the following conversation occurred

between D efendant an d his father:

Ron Munn: You shot him?

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 Defendant: Yes.

Ron M unn: W hy’d you d o it?

Defenda nt: For mon ey.

Ron M unn: Fo r what?

Defen dant: For money. I hate it that I had to ask you for
money, never enough.

Ron Mu nn: Rudy.

Defendant: Plus, I hated the kid -- he was a jack-ass.

Ron Mu nn: Rudy.

After that exchang e, Officer G uthrie exited the interview room, le aving D efenda nt,

his father, and his sister in the room. Defendant and his father continued to discuss

the facts which mo tivated his actions. Spe cifically, Defendant told his father that he

killed the victim for a total am ount of $8 00-900 dollars.

Later, Rita Munn reentered the room and Ron Munn aske d his w ife, “He did

it?” Rita Munn said, “That’s what he said.” A few minutes later, Rita Munn asked

her husband, “Was it an accident?” Defendant responded with the following:

It was inten tional. I did it on purpose. I knew exactly what
I was go nna to d o. I knew w hat to take to take his
identification. I wish I could have put his ca r somew here
else but Aberna thy was the farthes t away from S harp that
there was, th at I cou ld think of, without having to walk too
far. That’s why I put it ove r there.

Rita Munn then asked, “Now what do we do? How come you are not crying? How

come you don’t feel awful about what you did?” Defendant replied, “Because I am

a psychopa th, in my opinion.” Defen dant we nt on to sa y, “I know w hat I did. I know

it was wrong. There is nothing I can do to change that. ___ cry is not going to

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chang e it. I have to ac cept resp onsibility, I’m not gonna sit and cry.” The officers

were not present during any of the above conversation.

Following that exchange, Officer Peel reentered the room. The officer spoke

briefly with Mrs. M unn an d Defe ndant. M rs. Munn then told O fficer Pee l that “[h]e

[Defen dant] should have a lawyer.” Officer Peel stated, “If he wanted one,” and then

quickly changed the subject and left the room.

In the final intervie w, Officers Peel an d Guth rie were w ith Defen dant. At one

point, Officer Peel asked Defendant, “Feel better?” Defend ant resp onded , “Yeah.”

The officers spok e to De fenda nt abo ut bein g an a dult an d havin g to m ake u p his

own mind. D efenda nt then as ked O fficer Pee l to run dow n what w ould ha ppen to

him. Officer Peel to ld Defendant that the District Attorney was on the way and that

he said “yea or nay.” Defendant then asked, “What do you mean yea or nay?”

Officer Peel res ponde d, “On w hat to do. W e are no t trying to rush you. He says

whether to charge you tonight or what to do or let you go home tonight and charge

you later or what.” Defendant told the office rs, “[I]t was all about the gun and m oney,

it’s always been about m oney.” At this point, Officer Peel pushed a copy of the

Miranda warnings in front of Defendant and asked, “Have you read that?” Defendant

then looked at the written Miranda warning and told them “No.” Officer Peel then

stated, “Why don’t you go ahead and read that just to be safe?” Defendant read the

warning for approximately 15-25 seconds, and Officer Peel stated, “Know what you

want to do yet?” D efenda nt stated, “I’m going to wait and see what happens ___ I

don’t want to sign anything.” Officer Guthrie then said, “You understand it?”

Defenda nt responde d, “Yeah.”

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 At one p oint, Officer Peel said, “Reckon we can find the billfold,” to which

Defendant replied, “I can help you find it, the keys too.” Defendant then initiated

several topics of discussion relating to the crime. These discussions were not in

response to police questioning, but appeared simply to be an attempt by Defendant

to determine how much the police actually knew. Later, Defendant’s father entered

the interview room and the following exchange occurred.

Ron Munn: Where’s he going from here?

Officer Peel: Well we ain’t started. We’ll have to wait and
see, what y’a ll said, m omm a told u s to wa it until she
comes back.

Defen dant: [G]et a lawyer, that would probably be the best
thing, ___ get lawyer. Y’all said I wasn’t under arrest so I
could lea ve tonigh t and I cou ld just . . . .

Officer P eel: You’re going to b e arreste d tonight.

There was then a discussion about waiting for a lawyer and the Munns were

told that the D istrict Attorney wa s on the w ay. The whole M unn fam ily and both

officers were present in the room at this time. Rita Mun n asked h er son, “Rud y, are

you sorry?” Defendant responded, “Not really. He was a dirty little son-of-a-bitch,

looked at porno magazines.” Moments later, the Munns were told that the District

Attorney was there and they were asked if they wished to talk with him. Defendant

was su bsequ ently arres ted and booke d that eve ning.

Defendant was interviewed in the Felony Bo oking Roo m for a total of 3½ - 4

hours. Defen dant’s motio n to su ppres s the s ecretly -taped statem ents m ade to his

mother and fathe r while in the Felony B ooking Room was de nied by th e trial court,

and the video tapes were admitted into evidence at trial. Written transcripts of the

tapes were pre pared b y both pa rties, but they were never given to the jury. The

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video tapes contained blank portions or “skips” where the parties could not agree as

to what was being s aid. The judg e told the jury the following in regards to the tapes:

[Y]ou’ve heard and viewed a videotape and have been
advised that certain portions of the videotape have been
deleted. Now, you are specifically instructed that you are
not to speculate on these deletions and that these
deletions contain material that is irrelevant and immaterial
to your decision in this case.

In addition, you’ve been advised that the State and the
Defendant disagree as to what some of the statements on
the videotape might have been. You are the exclusive
judges of the statements on the videotape or of what
statement the videotape contains, just as you are the
exclusive judges of all of the facts and evidence in this
case.

Valer ie Roscoe, the victim’s fiancee, testified at trial that she met Poklemba

appro ximate ly a year before his de ath. Sh e and the victim beca me ro man tically

involved in the summer of 1995 and Poklemba spent m ost of his time with Ms.

Roscoe at her h ome in Nas hville. In fa ct, she was in troduc ed to D efend ant on ly

weeks before P oklem ba was murde red.

She testified that Poklemba was an ROTC student at MTSU and had served

in Panam a and in S audi Ara bia. Accord ing to Ms. Roscoe, Poklemba owned several

military type weapons, including a 9mm, a CAR-15, an AK-47, a M-16 and other

guns. He kept these guns at his dorm room. She testified that Poklemba had given

her the CAR-15, and had loaned Defendant the AK-47. She said Poklemba had

been tryin g to get the gun ba ck from Defen dant.

Ms. Rosc oe als o testifie d that on the weekend before his death, she and

Poklemba had traveled to Washington D.C. to meet m embers of Poklem ba’s family.

Ms. Rosco e said tha t upon the ir return to Tennessee, on Monday, November 27,

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1995, she and Poklemba went to the Emb assy S uites M otel to m ake p lans fo r their

wedding. The last thing Ms. Roscoe recalled was that Poklemba said he was going

to return to Murfree sboro to see De fendan t.

Paul Reavis, a student at MTSU and a friend of Defend ant’s, testified that

Defendant offered to s ell him an AR-15 , and Re avis gave Defen dant $200-$250

dollars toward the total purchase price of $500 . Reav is even tually returned the AR-

15 to Def enda nt bec ause thread s in the gun were stripped. Defendant then loaned

him an AK-47 . Reavis testified that som etime on the afternoon of N ovembe r 27,

1995, Defe ndan t had a sked to borro w a sm all caliber handgun from Reavis. The

two of them did not discuss why Defendant wanted the gun. Reavis drove from

MTS U to his home in Hillsborough, Tennessee, in order to retrieve the weapon for

Defen dant. He recalled that he gave th e wea pon to Defe ndan t at app roxim ately 2:00

p.m. that afternoon. Reavis also let Defendant borrow a box of .22 long rifle bullets.

Rea vis testified that he told Defendant that the weap on wa s a sing le-actio n pisto l.

That meant that in order to fire the weapon, the hammer had to be cocked. In other

words, the pistol could not be fired simply by pulling the trigger. Defendant returned

the pistol to Reavis that same evening at approximately 7:30 p.m. Reavis testified

that some of the bullets were missing and there were indications that the gun had

been fired. Again, they did not discuss the reason Defendant had needed the gun.

Two days after the murder, Defendant gave Reavis a duffle bag with “[v]arious

military surplus type of things and web gear” in it, such as rifle maga zines, a

bayone t, a knife, two m agazin e pouc hes, an d a pistol b elt.

Tommy Heflin, a forens ic scientist at the Tennessee Bureau of Investigation

crime lab, testified that “in order for the hammer to engage the firing pin [of the gun

-16-
in question], a transfer bar safety must come up and engage the hamm er. And the

only way you can do this is actually by applying pressure to this trigger area.” He

further testified that the trans fer bar safety is “designed to keep a person from

accidentally discha rging the wea pon.”

Jason Dowdy, a student at MTSU, testified that he lived on the same dorm

floor as Defendant. He said that he loaned Defendant a “silver knife, kind of like a

Swiss Army knife” two-three weeks before Poklemba’s murder for the purpose of

taking down bulletin boards in their dorm hallway. Defendant stated at the police

station that the victim had subsequently asked to borrow that knife from him and that

Defen dant no longer h ad it.

Robert S. Morrison testified that he saw Andrew Pokle mba at app roxim ately

6:00 p.m. on Novem ber 27, 19 95, at th e “Ga me M aster H obby S hop” in

Murfreesboro. Keith Kail, the owner of the shop, also recalled seeing Poklemba at

the hobby sho p that evening. M orrison recalled he aring Poklem ba say that his

roomm ate was coming to pick him up. When a medium-size or small-size two-door

car pulled up in front of the shop, Morrison asked Poklemba, “[i]s that your

roommate” to which Poklemba replied, “[y]es, that’s him.” As Poklemba was walking

out the doo r to get in the car, he told Morrison that he was going to the Day’s Inn.

This was at approximately 6:00 p.m.

At 6:13 p .m., po lice we re notifie d of a b ody in the parking lot at the Day’s Inn.

According to witnesses, Poklemba was lying face down on the pavement with a

hooded parka or jack et hoo d over his he ad. O ne of th ose w itness es, W illiam Nix,

pulled back the hood of the jacket in order to check Poklemba for a pulse. When he

-17-
didn’t find a pulse, he asked another witness to get the police . Mr. Nix wa ited with

the body until the police arrived. Mr. Nix also recalled that there was a silver military

style pocket knife laying next to the body.

The medical exa miner, Dr. Charles Harlan, found that Poklemba died from a

contact gunshot wound to the back of his head. The jacket hood did not have a

bullet hole in it.

During the sentencing phase, Defendant offered the testimony o f his father,

an older sister named Margaret, an older brother named Matthew, a family friend

and former teach er of D efend ant’s n ame d Ray Bould in, a fam ily friend and former

neighbor of the Munns named Abby Stokes, the family pediatrician named Dr. Jerry

Cam pbell, and a friend and fellow church mem ber, To ny Graff. A ccording to these

witnesses, Defendant was born on April 24, 1977, and was the third of the ten

children of Ron and R ita Mun n. His fa ther, R on Mu nn, is a senio r engineer with

Corporate Technology as an operating contractor at the Arnold Engineering

Developm ent Center. Defendant was raised in Manchester and was a member of

the Catholic church which he attended regularly. Defendant had done volunteer

work in a nursing hom e, was active in the Boy Scouts, and played soccer. He made

good grades in high school, was well-known, well-liked and came from a good

family.

At the time of Poklemba’s murder, Defendant was in his third month of college.

On Nove mbe r 6, 199 5, De fenda nt had com pleted a written application requesting

to change rooms because he was not comfortable with Poklemba as his roommate.

Defendant was never known to have been in trouble prior to this inc ident. D uring h is

-18-
release on bon d, Defen dant lived w ith his fam ily and help ed his m other with her

catering business.

I. Fourth A mend ment, 1 8 U.S.C . § 2510 et seq.,

and Tenn. Code Ann. § 40-6-301 et seq.

In his first issue, Defendant claim s that c ertain o f his videotap ed statem ents

shou ld have been suppressed because they were taped in violation of his Fourth

Amendment rights and in violation of federal and state statutes regarding

wiretapping and elec tronic surve illance. See 18 U.S.C. § 2510 et seq.; Tenn. Code

Ann. § 40-6-301 et seq.

When an issue involving the supp ressio n of evid ence is presented for review,

the appellate cou rt must afford the findings of fact made by the trial court the weight

of a jury verdict. State v. Odom, 928 S.W.2d 18, 23 (T enn. 19 96); State v. Makoka,

885 S.W.2d 366, 371-72 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 199 4).

In addition, “the party prevailing in the trial court is entitled to the stronge st legitima te

view of the e videnc e add uced at the s uppre ssion hearin g as w ell as all re ason able

and legitimate inference s that may be drawn from that evidence.” Odom, 928

S.W.2d at 23. Consequently, an appellate court must affirm the judgment of the trial

court unless evidence contained in the record preponderates against the findings of

fact made by the court or a ru le of law ha s been erroneo usly app lied. Id.; Makoka,

885 S.W.2d at 371-72. In evaluating the correctness of a trial court’s ruling on a

pretrial motion to suppress, this Court may consider the proof adduced both at the

suppression hearing and at trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn.

1998).

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A. Fourth Amendment

As to his Fou rth Am endm ent claim , Defend ant asserts that he had a

reaso nable expectation of privacy while seated in the police interrogation room.

Specifically, Defendant claims that the statements made to his mother and father

while they were “alone” in the booking room should be suppressed because they

were led to believe th at they we re carrying on private convers ations.

The Fourth Amendm ent provides:

Unreasonable searches and seizures. -- The right of the
peop le to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon
proba ble cause, supported by oath or affirmation, and
particu larly describing the place to be searched, and the
persons or things to be seized.

Under the Fourth Amendment, it is generally recognized that the application

of the constitutional limitations upon governmental intrusion into an individu al's

matters or activities, i.e., whether or not a search occurs, depends upon whether or

not the individual has a reasonab le expectation of privac y relative to those ma tters

or activities. See Califo rnia v. C iraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90

L. Ed. 2d 2 10 (198 6); United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct.

1652, 1656, 80 L. Ed. 2d 85 (1984); Katz v. United States, 389 U.S. 347, 360, 88 S.

Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J. concu rring); State v. Roode, 643

S.W.2d 651, 652-5 3 (Te nn. 19 82). T hese case s reflec t that in determ ining w hat is

a con stitution ally prot ected reaso nable expectation of privac y, a two-part inquiry is

made: (1) has the pers on man ifested a subjective expectation of privacy in the object

of the challenged intrusion and (2) is society willing to recognize that expectation as

reaso nable or justified. See also State v. Bowling, 867 S.W.2d 338, 341 (Tenn. Crim.

-20-
App. 1993). Pointing out that the Fourth Amendment was m eant to protec t peop le

and not places, the United States Supreme Court expressed in Katz that wha t a

person seeks to preserve as private, even in an area accessible to the public, may

be constitutionally protected. 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576.

Wh ere the go vernm ent viola tes an expec tation o f privacy which is both subje ctively

and reasonab ly entertained, evidence obtained thereby is not admissible in a

criminal p rosecu tion. Id. at 361, 88 S. Ct. 507, 19 L. Ed. 2d 576.

In this case , Defend ant was required to establish both that he expec ted his

conversations with his mother and father to be private and that such expectation was

objec tively rea sona ble or justified. As to the first requirement, the trial court made

no specific finding of facts about Defendant’s subjective expectation of privacy as to

his conversation with his parents. Therefore, due to the lack of factual findings

concerning this issue, we must employ a de novo standard of review. See State v.

Doug herty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996). After a careful review of the

video tape and the testimony presented, we conclude tha t Defendan t did in fact have

a subjec tive expec tation of priva cy.

The State argues that by Defendant and his mother leaning in close to each

other and speaking in more hushed tones than when others were present indicates

that they did not expect th eir conve rsation to be private. However, we believe that

Defendant and his mother expected just the opposite. First, Defendant had

previo usly asked for the officer to turn off the audio cassette recorder that was visibly

located on the table in the inte rroga tion roo m, the reby le ading him to believe that his

stateme nts were no longer b eing tape d. Seco nd, the offic er invited M rs. Munn to

speak with her son “by himself.” That specific phrase was repeated two additional

-21-
times. Officer Guthrie then asked Defendant if he wanted to “talk to your momma

by yourse lf?” W hen D efend ant sa id that h e wou ld, Offic er Gu thrie m oved a chair

next to Defendant for Mrs. Munn, and then both officers left the room and shut the

door behin d them . This likely could have le d Def enda nt to be lieve tha t he an d his

mother would be talking privately with one another. Third, the very nature of the

conversation, a son confessing to his mother that he killed anoth er hum an be ing, is

certain ly an emotional moment between a moth er and h er son. After w atchin g this

videotaped conversation, we believe the closen ess in proximity between Defendant

and his mother was a natural response under the circumstances. Detec tive Gu thrie

even testified at the suppression hearing that he found the mother’s actions to be

“suppo rtive.” Furthermore, it was the officer who placed the chair so close to the

Defen dant, not Mrs. Munn . Also, altho ugh the y may n ot have b een sp eaking quite

as loudly as when the officers were in the room , Defendan t and his mo ther were

certain ly not whispering so low as to lead us to believe that they though t they were

being secretly monitored. Based on all the above reasons, we find that Defendant

did in fact have a subje ctive ex pecta tion of p rivacy in his con versa tion with his

mother. Likew ise, alth ough the offic ers did not sp ecifica lly say ag ain that Defendant

and his fath er cou ld talk “a lone,” D efend ant’s e xpecta tion tha t the co nvers ations in

that room were private certainly carries over to his later conversations with his father

in that sam e room .

W e must next analyze the second prong as to whether the expectation was

objec tively reasonable. Thus, the question becomes, whether this expectation,

viewed objectively, was reasonable and justifiab le? This Court’s in quiry into

reasonableness asks “whether, if the particular form of surveillance practiced by the

police is permitted to go u nregulated b y constitutional restraints, the amount of

-22-
privacy and freedom remaining to citizens would be diminished to a compass

inconsistent with the aims of a free and open society.” United States v. Hendrickson,

940 F.2d 320, 322 (8th Cir.), cert. denied, 502 U.S. 992, 112 S. Ct. 610, 116 L. Ed.

2d 633 (1991) (citations omitted). Based upon the facts of this case, we find that

Defen dant did n ot have a justified and reason able exp ectation o f privacy.

It is well-settled law in this State that a person does not have an expectation

of privacy in a jail cell, State v. D ulswoth , 781 S.W.2d 277, 284 (Tenn. 1989), on a

jail house telephon e, State v. Leonard D. Hutchison, C.C.A. No. 1028, K nox Co unty

(Tenn. Crim. A pp., July 23 , 1987), o r in the bac k of a police cruiser, State v. Tilson,

929 S.W.2d 380 (Tenn. Crim. App. 1996). The United States Supreme Court has

held that “society is not prepared to recognize as legitimate any subje ctive

expectation of privacy that a prisoner might have in his prison cell . . . [t]he

recognition of privacy rights for prisoners in their individual cells simply cannot be

reconciled with the concept of incarceration and the needs and objectives of penal

institutions.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200, 82 L. Ed.

2d 393 (1 984). L ikewis e it follow s that th ere is no exp ectatio n of priva cy on a jail

house telephone since “it is obvious that a jail shares none of the attributes of

privacy of a home, an automo bile, an office, or a hotel room,” and it is not the

equivalent of a m an’s h ouse , within c onstitu tional p rotectio n, nor is it a place whe re

he can claim constitutional immunity from search or seizure of his person, papers,

or effects. Lanza v. Ne w York, 370 U.S. 139, 143-44, 82 S. Ct. 1218, 1220-21, 8 L.

Ed. 384 (1962). Again, courts have held that no reasonable expectation of privacy

exists in the back seat area of a police car as it has been argued that the back seat

of a police car is e quivale nt to a ja il cell. See United States v. McKinnon, 985 F.2d

525, 527-28 (11th Cir. 1993). Because the facts of the case before us involve

-23-
circumstances which differ somewhat from the above-mentioned cases, we analyze

the issue w ith thes e cas es in mind , while looking to other jurisdictions for guidance

as well.

In State v. Wilkins, 868 P .2d 12 31 (Ida ho 19 94), the arreste e-defe ndan t told

the police officer interrogating him that he would like to be alone with his parents.

He then asked the officer to turn off the tape recorder that had been used during the

interrogation. The officer turned off the tape recorder and left the booking room so

defendant could speak with his parents. However, the emergency dispatcher for the

city heard and recorded the conversation over an intercom system. The

conversation between the defendant and his parents was admitted into evidence.

In denyin g his motion to suppress, the trial court noted that “the dispatcher, who

recorded the conversation between the defendant and his parents, testified that she

listened to conversations in the police booking room regularly for the purpose of

police safety.” Id. at 1237. The dispatcher had testified that whenever someone

was booked, that the monitoring was used as a safety feature in case someth ing

happened and someone needed help. Th e trial court sta ted that “the need . . . to

have a safe and secure police station outweighs any expectation of privacy the

defendant could poss ibly ma intain in this particular setting.” Id. at 1238. The Idaho

Supreme Court agreed with the trial court and ruled that although the defendant had

a subjective expectation of privacy, it was not a reas onab le expectation of privac y.

The supreme court held that “[i]t would be contrary to the governmental interest in

maintaining security and order in facilities where those accused or convicted of crime

are detained or incarcerated to allow an ind ividual d efend ant to c urtail ele ctronic

surveillance of visiting areas by requesting privacy.” Id. It went on to say that

“[g]iven the nece ssity of th is surve illance , the fac t that the police officer in this case

-24-
turned off the tape recorder and left the booking room at [defendant’s] request is not

sufficient to establish an objectively reasonable and justifiable expectation of privacy

in [defendant’s] co nversation with his p arents.” Id.

In State v. Calhoun, 479 So . 2d 241 (Fla. Dist. Ct. App. 1985), the trial court

held that the incarcerated defendant did have a reas onab le expe ctation that his

conversation with his brother in a police interr ogation room w as secu re and p rivate

because such an expectation was deliberately fostered by the police officers and

because Defenda nt had previously expressly invoked his Fifth and Sixth amendment

rights. One o f the officers testified that the conversation was monitored “for

investigative purposes, not just for security.” The appellate court affirmed the

decision, but in a concurring opinion, the judge stated “[h]ad the suspect in this case

not exercise d his rights to rema in silent and to reque st cou nsel, th e video tape w ould

have been lawfully obtained evide nce.” Id. at 245-4 6.

In State v. Hauss, 688 P.2d 1051 (Ariz. Ct. App. 1984), the arrestee-defendant

told the police that he wou ld discus s the crim es with them if they wo uld first le t him

speak with his girlfriend. The officer told the girlfriend that the room was being

monitored and s he rep lied either “OK” or “All right.” Both of the officers involved

testified they were conce rned with the pass ing of a we apon, the discussion of

poss ible escape plans, plans to destroy evid ence , and e ven the girlfriend ’s

involvement in the crimes. The police had hoped the defendant would discuss the

case after talking with his girlfriend as he said he would. However, the defendant

confessed these crimes to his girlfriend an d these tapes w ere adm itted into

evidence. The police did not expec t that he would confess his involvement in these

crimes to his girlfriend. The court held that any expectation of privacy defendant had

-25-
was outweig hed by th e need to mainta in security. Id. at 1055. Also, the court

mentioned the fact that the girlfriend had at least impliedly consented to the taping.

In United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435

U.S. 1000, 98 S . Ct. 1656 , 56 L. Ed . 2d 90 (1 978), the court he ld that the taped

conversation between defendant and a childhood friend which was monitored and

recorded by jail officials was properly admitted, as the intrusion by jail officials,

pursuant to esta blishe d jail policy, did no t violate the F ourth Am endm ent. Also, there

was no violation of defendant’s Sixth Amendment right to assistance of counsel as

there was no interroga tion of defe ndant, either formally or surreptitiously, by the

governm ent durin g the con versation with his friend .

In the case sub judice, we do not believe the trial court erred in denying

Defe ndan t’s motion to sup press the statem ents mad e to his mothe r and his father.

Although we do not necessarily condone the surrep titious m anne r in which the police

video taped Defendant in this case, we cannot, as a matter of law, say that those

actions violated Defend ant’s Fourth A mendm ent rights. Officer Peel testified that the

hidden video camera is used in “[m]ajor felony interviews, major investigations. And

now mos tly just about all the time with a ny investiga tion since we’ve go t it operative.”

Although we can find no testim ony that th e hidde n cam era is use d for safety

purposes as was established in the cases cited above, we can say that this has

obviou sly become ordinary, police station procedure at this particular police station.

Although Defendant was not under arrest at the time he made the statements, as

again distinguished from the cases cited above, case law does not distinguish

between pre-arrest and post-arrest statements for purposes of analyzing the

-26-
reasonableness of a defen dant’s exp ectation o f privacy. See McKinnon, 985 F.2d

at 528.

W e do not ho ld that a defendant’s statements obtained through the

surreptitious taping in a police station interview room will always be admissible.

Howeve r, under th e facts of this case, we hold that although Defendant had a

subjective expectation of privacy, he did not have a legitimate or reasonable

expec tation of privacy. W e note that ha d the c onver sation s bee n of a le gally

recognized confidential nature by virtue of the relationship between Defendant and

the person with whom he was communicating at the time of the surveillance (e.g.

conversations between defendants and their attorneys, licensed physicians, and

religious a dvisers), ou r holding m ight be diffe rent.

B. Federal and State Wiretapping Statutes

Defendant also argues the recording of his conversation with his mother

violated Title III of the Omnibus Crime and Control and Safe Streets Act of 1968

(Title III), as well as the Te nness ee W iretapping and Ele ctronic S urveillance Act,

both of whic h proh ibit the u nauth orized interception and disclosure of oral

communications. See 18 U.S.C. § 2511(1)(a); Tenn. Code Ann. § 40-6-301 et seq.

“Oral communications” is defined in the federal sta tute as “any oral communication

uttered by a person exhibiting an expectation that such communication is not subject

to interception under circumstances justifying such expectation, but such term does

not include a ny electro nic com munic ation;” 18 U .S.C. § 2510(2 ). Our state statute

is essen tially identical. See Tenn. C ode Ann . § 40-6-303(1 4). The definition of “oral

communication” has been interpreted to include the reasonable expectation of

privacy standard used for Fourth A mend ment p urpose s. See United States v. Hall,

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488 F.2d 19 3, 196 (9 th Cir. 197 3); S. Re p. No. 10 97, 90th Cong . 2d Ses s., reprinted

in 1968 U.S. Code Cong. & Admin. News 2178 (the definition was intended to be

interpreted in accordance with the principles enunciated in Katz). In other words,

we should use the same standard for determining the protection of the wiretap laws

as is emp loyed in Fourth Amendment cases. Therefore, as we did in the case of the

Fourth Amendment claim above, we also conclude that Defendant was not entitled

to the pro tection of th e federa l and state wiretap law s. This iss ue is witho ut merit.

II. Miranda

(Defen dant’s Iss ue III.)

Defendant argues that the statements should have been suppressed because

he was not advised of his Miranda warnin gs eve n thou gh he was a lleged ly in

custody when he m ade incrimina ting statemen ts. In reviewing this issue, we are

again mindful that a n appe llate court m ust uph old a trial cou rt’s finding of fa ct in a

suppression hearing unless the evidence in the record preponderates against those

findings. Odom, 928 S.W.2d at 23.

In Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d

694 (1966), the United States Supreme Court ruled that the Fifth and F ourteen th

Amendmen ts' prohibition against compelled self-incrimination requires police

officers, before initiating questioning, to advise the putative defend ant of his righ t to

rema in silent and his rig ht to coun sel. Spe cifically, Miranda requires police to inform

the person being questioned that (a) he has the right to remain silent; (b) any

statement made may be used as evidence against him; (c) he has the right to the

presence of an atto rney; and (d) if he cannot afford an attorney, one will be

-28-
appointed for him prior to questioning, if he so desires. 3 84 U.S . at 444, 86 S. Ct.

at 1612, 16 L. Ed . 2d 694 . If these warnings are not given, statements elicited from

the individual may not be admitted for certain pu rposes in a crimin al trial. Stansbury

v. Califo rnia, 511 U .S. 318, 3 22, 114 S. Ct. 1526, 152 8, 128 L. Ed. 2 d 293 (199 4).

Howeve r, an officer's obligation to administer Miranda warnings only attaches

"where there h as be en su ch a re striction on a p erson 's freed om a s to ren der him ‘in

custo dy.’” Id. (quoting Oregon v. Mathiason, 429 U.S . 492, 495 , 97 S. C t. 711, 714,

50 L. Ed. 2d 714 (1977)). In Miranda, the Court explained that a "custodial

interrogation" refers to "questioning initiated by law enforcem ent officers after a

person has been taken into custody or otherwise deprived of his freedom of action

in any sign ificant way." 3 84 U.S . at 444, 86 S. Ct. at 16 12.

Thus, when determining whether or not there was custodial interrogation, the initial

inquiry is whether the suspect was "in custody." The trial court will be given a wide

latitude of discr etion in its decision, and that decision will not be overturned by this

Court unless it appears there has been an abuse of the trial court's discretion and

a violation of the appellan t's rights. See State v. S mith, 868 S.W.2d 561, 570 (Tenn.

1993), cert. denied, 513 U.S. 960, 115 S. Ct. 417, 1 30 L. Ed . 2d 333 (1994); State

v. Nakdimen, 735 S.W .2d 799 , 802 (T enn. C rim. App . 1987).

"The initial determination of custody depends on the objective circumstances

of the interrogation, not on the subjective views harbored by either the interrogating

officers or the person being question ed." Stansbury , 511 U.S . at 323, 11 4 S. Ct. at

1529, 128 L. Ed. 2 d 293 . Spec ifically, the inquiry is "how a reaso nable [perso n] in

the suspect's position would have understood his situa tion," i.e., w ould h e have felt

that he was not free to lea ve and, thus, in cu stody. Berkem er v. McC arty, 468 U.S.

-29-
420, 442, 10 4 S. Ct. 3138 , 3151, 8 2 L. Ed. 2 d 317 (1 984). See also Michigan v.

Chesternut, 486 U.S. 56 7, 573, 108 S . Ct. 1975, 197 9, 100 L. Ed. 2 d 565 (198 8);

State v. Mosier, 888 S.W.2d 781, 784 (Tenn . Crim. A pp. 199 4); State v. Furlough,

797 S.W .2d 631 , 639 (T enn. C rim. App . 1990).

The Tennes see Sup reme C ourt has expressly adopted the objec tive ana lysis

employed by the United State Supreme Court and rejected as irrelevant to the

determination of custody any inquiry into the subjective beliefs of law enforcement

officials about the culpability or g uilt of the per son be ing que stioned. State v.

Anderson, 937 S.W .2d 851 (Te nn. 1996). T he court ado pted several no nexclusive

factors to aid in the objecti ve ass essm ent of w hethe r a reas onab le pers on wo uld

consider hims elf or herse lf deprived o f freedom of move ment to a degree associated

with a formal arrest. Relevant factors include the following:

(1) the tim e and locatio n of the interrogation; (2) the
duration and character of the questioning; (3) the o fficer’s
tone of voice and general demeanor; (4) the method of
transportation to the place of questioning; (5) the number
of police officers present; (6) limitations on movement or
other forms of restraint imposed during the interrogation;
(7) interactions between the officer and the person being
questioned, including the words spoken by the officer and
the verbal or nonve rbal responses of the person being
questioned; (8) the extent to which the person being
questioned is confronted with the officer’s suspicions of
guilt or evidence of guilt; and finally (9) the extent to which
the person being ques tioned is awa re that h e or sh e is
free to refrain from answering questions or to end the
interview a t will.

Anderson, 937 S.W.2d at 855. Although Miranda says the type of interrogation

prohibited must be initiated by a law enforcement official, Anderson, 937 S.W.2d at

853, the term “interrogation” for Miranda purposes refers to “[N]ot only express

questioning, but also to any words or actions on the part of the police (other than

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those normally attendant to arrest and custody) that the police should know are

reaso nably likely to elicit an incriminating response from the suspect. . . . A practice

that the po lice sho uld kn ow is reasonably likely to evoke an incriminating response

from a suspe ct thus am ounts to interrogation.” Rho de Isla nd v. Inn is, 446 U.S. 291,

301, 100 S . Ct. 1682, 168 9, 64 L. Ed. 2d 297 (1980 ).

It should be noted that the fact that an interview takes place at a police station

or that the environm ent is perceived to b e “coercive” is not determinative of the

custody issue. For example, in Oregon v. Mathiason, the Court noted the following:

Any interview of one suspected of a crime by a police
officer will have coercive aspe cts to it, sim ply by virtue of
the fact that the police officer is part of a law enforcement
system which may ultimately cause the suspect to be
charged with a crime. But police officers are not required
to administer M iranda warning s to everyone whom they
question. Nor is the requirement of warnings to be
imposed simply because the qu estion ing tak es pla ce in
the station house, or because the questione d pers on is
one wh om the police su spect.

429 U.S. at 495, 97 S. Ct. at 714.

W e should m ention tha t our review of this issue is aided b y the fact that

Defe ndan t’s statem ents are in the record as audio visual tape recordings.

Considering the totality of the circ ums tance s, includ ing the factors deline ated in

Anderson, the evidence in the record does not preponderate against the lower

court’s finding that Defendant was not in custody when he was interviewed by law

enforcement officials. In this case there were actually a series of interviews. The

first one began at approximately 5 p.m. and it took place in a 12 x 12 foot room

marked “Felony Booking Room” at the Murfreesboro Police Department. The

officers had initiated contact with Defendant, but D efenda nt volunta rily agreed to

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come to the station with his fam ily to clear up discrepancies the officers had found

in Defe ndan t’s story about what happened. The officers talked with Defendant for

3 ½ - 4 hours after which time Defendant was formally arrested. At times, the

officers ques tioned Defe ndan t alone in the ro om, a t times certain family mem bers

and the officers were present, and at times, it was just Defendant and one or both

of his pa rents p resen t. The police did vigo rously q uestio n Def enda nt and at certa in

times even accused Defendant of not telling the truth or at least not telling the whole

story. Specifically, the officers told Defendant “it’s time to tell the truth,” “you know

who killed him ,” and “y our sto ry doe sn’t ho ld wate r.” The officers even to ld

Defe ndan t’s mother, in the presence of Defendant, that they knew Defendant had

killed the victim. However, even though the officers were extremely inquisitive and

often times accusatory, their demeanor was always polite and courteous towards

Defen dant. In fac t, during the interview D efendant told h is mother that the officers

were being nice to him and that they were no t intimid ating h im. De fenda nt is

reminded throughout the interview that he is not under arrest and is free to leave at

any time. However, on at least three o ccas ions, D efend ant m ention ed tha t he wo uld

like to come back the following Monday and talk to the officers w hen his pare nts are

not with him. On each occasion, it appears that the officers either changed the

subject or kept pressing him to tell the truth. Nonetheless, until near the end of the

interview when Defendant indicated that he thought he could go home and the

officers advised him that he would be arrested that night, there is no evidence in the

record th at Defen dant tried to leave the room a nd that the officers refu sed.

In consideration of all the foregoing, we cannot say that Defendant was

subject to custodial interrogation. Although there are certainly some factors which

point towards custo dial inte rroga tion, the eviden ce as a who le in the rec ord sim ply

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does not preponderate against the trial court’s determination that Defendant was not

in custod y during th e interview . There fore, this issu e is withou t merit.

III. Voluntariness

(Defen dant’s Iss ue II.)

In addition to his argument in the preceding issue tha t he was subject to

custodial interrogation, Defendant also contends that his statements were not

volunta rily given. Specifically, Defendant argues that all of his statements sho uld

have been suppressed, or at least the statem ents mad e to his mothe r and father,

because they were not voluntarily given. In denying Defendant’s motion to suppress,

the trial court sim ply stated th at Defen dant’s sta temen ts were “certainly volunta ry”

but did not further address this issue or make any detailed findings of fact as to why

the stateme nts were in fact volun tary.

Along with the principles discussed in Issue II, the United States Supreme

Court has also interpreted the Fifth Amendment to require that an incriminating

statement or confession be freely and voluntarily given in order to be admissible.

This even applies to statements obtained after the prop er Miranda warnings ha ve

been issued. See State v. Kelly, 603 S.W.2d 726 (Tenn. 1980). Statements and

confessions not made as a result of custodial interrogations must also be voluntary

to be adm issible. See Arizona v. Fulima nte, 499 U.S. 279, 286-88 , 111 S. C t. 1246,

1252-53, 113 L. E d. 2d 30 2 (1991 ). It must not be extracted by “any so rt of threats

or violence, nor obtained by any direct or implied promises, however slight, nor by

the exertion o f any imp roper influe nce.” Bram v. United States, 168 U.S. 532, 542-

43, 18 S. Ct. 183, 187, 42 L. Ed. 568 (1897) (citation omitted). Moreover, due

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process requires that confessions tendered in response to either physical or

psychological coercion be supp ressed . Rogers. v. Richmond, 365 U.S. 534, 540-41,

81 S. Ct. 735, 739, 5 L. Ed. 2d 7 60 (196 1); Kelly, 603 S.W.2d at 728-29. This has

evolved into the “tota lity of circum stance s” test to determine whether a confession

is voluntary. Fulima nte, 499 U.S. at 285-87, 111 S. C t at 1251- 52; State v. Crump,

834 S.W .2d 265 , 271 (T enn.), cert. denied, 506 U.S. 905, 113 S. Ct. 298, 121 L. Ed.

2d 221 (19 92).

The voluntariness test under the Tennessee Constitution has been said to be

more protective of individual rights than the test under the United States

Constitution. See State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). For the

relinquishment of rights to be effective, Defendant must have personal awareness

of both the n ature of the right and th e cons equen ces of ab andon ing his righ ts. See

id. at 544-45. Additionally, his statements cannot be the result of intimidation,

coercion or dece ption. Id. at 544. In determining whether the statem ents were

voluntary, the reviewing court looks at the totality of the circumstances surrounding

the relinqu ishme nt of the righ t. Id. at 545.

The trial court found that the statem ents were m ade voluntarily. W e have

studied th e eviden ce, cons idering the totality of the circumstances, and we cannot

conclude that the trial court erred by denying Defendant’s motion to suppress on this

issue. The court’s determination that the statements were given knowingly and

volunta rily is binding upon the appellate courts unless the defendant establishes that

the evidence in the record preponderates against th e trial court’s ru ling. Odom, 928

S.W.2d at 23. There is no sufficient basis for holding that the alleged admissions

were not free and voluntary simply because the Defendant was unaware, at the time

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of the conversations, that he was being recorded. Deception itself does not render

statem ents inadm issible where the deception is not of the type reason ably likely to

procure an untru e statem ent. See R.K. Procu nier v. A tchely, 400 U.S. 446, 448-49,

91 S. Ct. 485, 487, 27 L. Ed. 2d 524 (1971). Therefore, Defendant has fa iled to

meet his burden of demonstrating that the evidence preponderates against the trial

court’s holding. Although the atmosp here surroun ding the interroga tion may have

proved distressin g to this 18 -year-old m an, there is little evidence to support that the

statement was coerced or in any way involuntarily g iven. This issue is with out me rit.

IV. Fifth Amendment Right to Counsel

Defendant argues that his videotaped statements should have been

suppressed beca use th ey wer e obta ined in violation of his Fifth Am endm ent right to

coun sel. Defen dant a sserts that he expre ssed a des ire to have coun sel prese nt,

and that the officers should have ceas ed all q uestio ning o r shou ld have limited their

questioning to a clarification of whether he desired to have an attorney.

First of all we will m ention tha t the Fifth Amendment provides the right to

counsel at any po lice-initiated cu stodial interr ogation . See, e.g., Edwards v. Arizona,

451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2 d 378 (1 981); State v. Huddleston, 924

S.W.2d 666 (Ten n. 1996); State v. Bates, 804 S.W.2d 868 (Tenn. 1991). Only the

suspect can ass ert his right to c ounse l. See Huddleston, 924 S.W .2d at 669-7 0

(citing Davis v. United States, 512 U.S . 452, 114 S. Ct. 2350, 1 29 L. E d. 2d 362

(1994). H oweve r, as discu ssed a t length in Iss ue II, Defendant was not subject to

custodial interrogation and therefore the officers were under no obligation to issue

Miranda warnings.

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 At some point after Defendant confessed to the murder, the officers did tell

Defendant to read a sheet of paper containing the Miranda warnings. When he

finished reading them, Defendant refused to sign the wa iver, bu t he told the officers

that he did unde rstand the wa rnings. Soon after he read the warnings, the o fficers

asked Defendant, “Reckon we can find the billfold,” to which Defendant responded,

“I can help you find it, the ke ys too.” Defen dant h ad no t reque sted a lawyer at this

point, so these statements are admissible.

Defendant did eve ntually te ll the officers that he wanted a lawyer. Specifically,

he said, “get a lawyer, that would probably be the best thing . . . get lawyer.” He

went on to say that he w as “waiting on a lawy er.” Once Defendant had

uneq uivoca lly requested a n attorney, the officers were required to cease further

questioning of Defen dant. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880,

68 L. Ed. 2d 378 (1981); State v. Huddleston, 924 S.W .2d 666 (Te nn. 1996).

Howeve r, after carefully reviewing the transcript of the tapes and the tapes

themselves, we are of the opinion that any incriminating statement Defendant made

after asserting his Fifth A men dme nt right w as in re spon se to q uestio ns by h is

mother, not the officers. The following conversation ensued between Defendant and

Mrs. Munn after he express ed a desire for a n attorney:

Mrs. Munn : Rudy are you sorry?

Defenda nt: Not really.

Mrs. Munn : Why?

Defendant: He was a dirty little son of a bitch, looked at
porno m agazin es, . . which is why . .

Mrs. Munn : W hy wou ld you w ant to k ill him, did he do
something to you?

-36-
 Defen dant: . . . other th an he w as a jerk.

The type of interrogation prohibited by Miranda must be initiated by a law

enforcement official. Anderson, 937 S.W.2d at 853. Since the incriminating

statem ents were m ade in response to his mother’s questions, those statem ents are

admissible. The trial court made no finding of fact that Mrs. Munn was acting as an

“agent” or an “exte nsion” of th e officers. Likewise , we do no find an y objective

evidence in the record that the officers were using the mother to elicit further

information from Defendant. Defendant has made no showing that his mother acted

at the beh est of the o fficers or an y other Sta te agen t.

Furthermore, any error in the admission of Defendant’s statements after

stating he wanted a lawyer wa s, at mos t, harmle ss beyo nd a rea sonab le doub t.

Tenn. R. App . P. 36(b). Proof of guilt was overwhelming, and the foregoing

statem ents were merely cumulative to other admissible evidenc e whic h clea rly

establish ed guilt. See Hartm an v. State , 896 S.W .2d 94 (Ten n. 1995).

V. De rivative E videnc e Rule

Defendant argues that the admissibility of his taped confession to his mother

violated his constitutional rights, and that any subsequent confession is also tainted.

Since we have ruled that Defendant’s confession of the murder to his mother did not

violate any of his constitutional rights, the derivative evidence rule, or “fruit of the

poisonous tree” rule, is wholly inap plicable. See State v. Underwood, 669 S.W.2d

700 (Tenn. Crim . App.), perm. to appeal denied (Tenn. 1984). This issue is without

merit.

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 VI. Sufficiency of the Evidence

Defendant argues that the evidence is insufficient to support the jury’s gu ilty

verdict of first degree murder. When an accused challenges the sufficiency of the

convicting evidence, the standard is whether, after reviewing the evidence in the light

most favorable to the prosection, any rational trier of fact could have found the

essential elements of the crime b eyond a reason able do ubt. Jack son v. V irginia,

443 U.S. 3 07, 31 9 (197 9). Th is stan dard is applic able to finding s of gu ilt predicated

upon direct e videnc e, circumstantial evidence or a combination of direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990). On appeal, the State is entitled to the stronges t legitimate view of the

evidence and all inferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the trier

of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493

S.W .2d 474, 476 (Tenn. 197 3).

Questions concerning the credibility of the witnesse s, the weig ht and va lue to

be given the evidence, as well as all factual issues raised b y the evidence, a re

resolved by the trier of fact, not this c ourt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied (Tenn . 1987). Nor may this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W .2d at 476 .

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 All homicides are presumed to be murder in the sec ond de gree. State v.

West , 844 S.W .2d 144 , 147 (T enn. 19 92); State v. Brown, 836 S.W .2d 530 , 543

(Tenn. 1992). That State b ears the burd en to pro ve prem editation in order to e levate

the offens e to mu rder in the firs t degree . West, 844 S.W.2d at 147.

At the time the offense was com mitted , first deg ree m urder not co mm itted in

the perpetration of one of several specifically enumerated crimes required the

“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1). A prem editate d act is one “done after the exercise of reflection and

judgm ent” and requires a previously formed desig n or inte nt to kill. Tenn. Code Ann.

§ 39-13-2 02(d); West, 844 S.W .2d at 147 . The ele ment of premeditation is a

question for the jury and may be inferred from the manner and circumstances of the

killing. State v. Bord is, 905 S.W.2d 214, 221 (Tenn. Crim. App. ), perm. to appeal

denied (Tenn . 1995); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993),

perm. to appeal denied (Tenn. 199 4).

In the present case, Defendant clearly planned the murder, procured a

weapon, lured the victim to the D ay’s Inn , and c ause d the vic tim to pos ition him self

so that Defendant could deliver a single shot to the back of his head. Following the

murder, Defendant hid the victim ’s vehicle a nd then attemp ted to mislead the police

during their investig ation. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997)

(citation omitted) (evidence of use of deadly weapon on unarmed victim,

preparations prior to killing for purposes o f concealm ent, and cruelty of killing are

relevant circum stanc es in establishing prem editatio n). As m ention ed ea rlier in this

-39-
opinion, Defendant offered the following detailed statements showing a

“premeditated and intentional killing” of the victim:

W ell, we had to go somewhere else. I told him we were
going to go ___ and meet somebody but he ___ the
license plates on the car, so if we did get ca ught it w ould
be hard to find when we did that, when he knelt dow n to
unscrew the license plate. Then I shot him in the back of
his head. He fell down and I ro lled him over an d took his
license a nd wallet.

...

Ron Munn: You shot him?

Defendant: Yes.

Ron M unn: W hy’d you d o it?

Defenda nt: For mon ey.

Ron M unn: Fo r what?

Defen dant: For money. I hate it that I had to ask you for
money, never enough.

Ron Mu nn: Rudy.

Defendant: Plus, I hated the kid -- he was a jack-ass.

Ron Mu nn: Rudy.

...

It was in tention al. I did it on purp ose. I knew exactly what
I was gonna to do. I knew wha t to take to take his
identification. I wish I co uld ha ve put h is car somew here
else but Abernathy was the farthest away from Sharp that
there was, that I could think of, without having to walk too
far. That’s why I put it over there.

Furthermore, Defendant confessed to the murder, and we h ave pr evious ly

found that confe ssion to b e adm issible. Eve n abse nt the con fession, there is still

certain ly sufficient circumstantial evidence from which the jury could find that

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Defendant had a “previou sly formed de sign or intent to kill.” West, 844 S.W.2d at

147. Th is issue is w ithout me rit.

VII. Mistrial

In this issue, Defendant argues that certain comm ents mad e by Detective

Guthrie should have resulted in a mistrial. Specifically, Detective Guthrie testified

during direct examination to the following:

Q: (General Newman) Now, I believe that there has been
prepared and you have helped in preparing a transcript of
this particu lar interview; is th at correc t?

A: (Detective G uthrie) Yes, sir.

Q: (General Newman) And what is the significance of the
blank portions of that interview or the blank spaces: What
does that indicate?

A: (Detective Guthrie) Certain th ings we re left out that
would b e dam aging to th e defen se.

Following this exchange, defense counsel objected and moved for a mistrial. The

blank spac es in the transcript and o n the tape we re there b ecau se the parties could

not agree as to what was being said during that particular portion of the videotape.

The judge ruled that the transcript would not be submitted to the jury and then ga ve

the following curative instruction:

Ladies and Gentlem en, the videotap es or tapes yo u are
about to view th is mo rning h ave be en ed ited to delete
portions thereof which were deemed by the court to be
either irreleva nt or im mate rial to this particular case. So
don’t concern yourselves with -- you’ll see some jumps
and there may b e some blank spots. D on’t concern
yours elf with those. There is nothing in there that you
should hea r.

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 Whether an occurren ce during the c ourse of a trial warrants the entry o f a

mistrial is a matter which addres ses itself to th e soun d discretio n of the trial co urt,

and this Cou rt will not interfere with the exercise of that discretion absent clear

abuse. State v. McPherson, 882 S.W .2d 365 , 370 (T enn. C rim. App . 1994), perm.

to appeal denied (Tenn. 1994). The burden of establishing the necessity for mistrial

lies with the pa rty seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim.

App. 1996). In making this determination, no abstract formula should be

mec hanic ally applied, and all circu mstan ces sho uld be tak en into ac count. State v.

Mounce, 859 S.W .2d 319, 322 (Tenn. 199 3).

It is well-established that jurors are presumed to follow the instructions given

by the trial judge. See State v. Laney, 654 S.W.2d 383, 389 (T enn. 19 83); State v.

Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985). Based on the adequacy

of the trial court’s instruction and Defendant’s failure to demonstrate prejudice, we

cannot say tha t the sta teme nt by D etective Guth rie “mo re prob ably than not affected

the judgm ent” in this ca se. Tenn. R . App. P. 36(b); Tenn. R. Crim. P. 52(a). Thus,

the trial court did not abuse its discretion in denying Defendant’s motion for a mistrial

as the statem ent did no t create a manifest necessity for a mistrial. Any error was

harmless . Tenn. R. A pp. P. 36(b); Te nn. R. Crim . P. 52(a).

VIII. Aggravating Circumstance (i)(7)

Defendant argues in this issue that there is an insufficient nexus between the

murder and the und erlying felony, thus m aking aggra vating circumstance (i)(7)

inapplicable.

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 The jury found that the “murder was knowingly committed, solicited, directed,

or aided by the de fenda nt while the defendant had a substantial role in committing

or attempting to commit, or was fleeing after ha ving a s ubsta ntial role in committing

or attempting to commit, any . . . robbery . . . [or] theft.” Tenn. Code Ann. § 39-13-

204(i)(7).

In supp ort of his argument that the nexus between the murder and the

underlying felony is insufficient, Defendant relies on State v. Terry, 813 S.W.2d 420

(Tenn. 1991). In Terry, the defendant was a preacher whom had embezzled

substantial sums of money from his congregation over a period of time. He began

stealing the money in March of 1987, and in June of 1987 the defendant killed the

church handyman, placed him in the church building, and then torched the building

in hope s that a uthoritie s wou ld think that it wa s defe ndan t’s body that would be found

in the ruins. Id. at 421. In sentencing the defendant to death for this offense, the

jury applied the felony murder aggravating circumstance on the basis of the

underlying larceny. Id. At the motion for new trial hearing, the trial judge granted the

defendant a new sentencing hearing. The judge found that the jury was warranted

in finding that a larceny had o ccurred, but he also found tha t the State did not pro ve

that the m urder was c omm itted wh ile the defendant was engaged in the commission

of the larcen y. Id. at 422. The Tennessee Supreme Court agreed with the trial

judge that there was an insufficient nexus between the murder and the larceny. Id.

at 424. In so holding, our supreme court stated that application of the felony murder

aggravating circumstance depends upon the “temporal, spatial and motivational

relationships between the capital murder and the collateral felony.” Id. at 423

(quoting 67 A.L.R .4th 887 , 892 (19 89)).

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 Applying those factors to the circumstances of this case, it is clear that

Defe ndan t’s argument is without merit. Here, the murder and the collateral felony

occurred at the same tim e and in th e sam e place. T he victim w as disco vered w ith

his pants po ckets turn ed inside out. Defendant confessed numerous times that he

killed the victim because of mo ney. Fu rtherm ore, he told the officers that he could

help them in finding the victim’s wa llet. Based on the physical evidence as well as

Defendant’s own admission, we conclude that the evidence is sufficient to support

the jury‘s findings as to ag gravating circum stance (i)(7).

IX. Jury Charge

Defendant argues in this issue that the trial court committed reversible error

as a result of several jury instructions prior to the jury’s deliberation concerning

sentencing.

A. Aggravating Circumstances

The jury was instructed on two aggravating circumstances: (1) the murder was

committed in order to avoid lawful arrest and (2) the murder was committed during

the course of a felony. See Tenn. C ode Ann . § 39-13-204 (i)(6) and (7). Howe ver,

the jury only found Defe ndan t had c omm itted the murd er durin g the cours e of a

felony. It did not find th at he had committed the murder in order to avoid lawful

arrest. Defen dant n everth eless argue s that n either a ggrav ating circumstanc e is

applic able to this ca se an d that in structin g the ju ry on tw o agg ravato rs resu lted in

great prejudice.

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 First, as discussed in the previous issue, the jury was prese nted w ith am ple

evidence in support of the aggravating circumstance that the murder was committed

during the cour se of a felo ny. See Tenn. Code Ann. § 39-13-204(i)(7). Second,

Defendant has not shown how instructing on the murder to avoid lawful arrest

prejud iced h im in any wa y. See Tenn . Code Ann. § 39-13-204(i)(6). Although we

may agree that aggravating circumstance (i)(6) was inapplicable to the facts o f this

case, we find no prejudice and any error in charging this was harmless. Tenn. R.

App. P . 36(b); Te nn. R. C rim. P. 52 (a).

B. Statutory De finition of Theft and R obbery

Defendant argues that the trial court erred by failing to instruct the jury on the

statutory definitions of theft and robbery. Specifically, Defendant argues that the trial

court’s use of T.P.I. Criminal 9.01 and 11.01 in charging the definitions of these

offenses wa s confusing to the jury.

The supreme court has held that a trial court is required to provide the jury

with the statutory definition of any felony relied upon by the State as an aggravating

circumstance under Tenn. Code Ann. § 39-13-20 4(i)(7). State v. Nich ols, 877

S.W.2d 722, 73 5 (Ten n. 1994 ); State v. Hines, 758 S.W.2d 515, 521-24 (Tenn.

1988). Furthermore, pattern jury instructions are not officially approved by this Court

or by the General Assembly and should be used only after careful analysis. They

are merely patterns or suggestions. While previously printed forms may be

conven ient, they m ust be revised or sup plem ented if nece ssary in order to fully and

accurately con form to applica ble law. See State v. Hodges, 944 S.W.2d 345, 354

(Tenn. 19 97).

-45-
 After a careful review of the pattern instructions charged by the trial court and

the statutory de finitions of the ft and rob bery, we fin d that the d efinitions are very

similar, albeit the pattern instructions are lengthier and more specific. However, we

find no significant difference between the statutory definitions and the pattern

instructions and therefore, any error in not charging the statutory definitions of theft

and robbe ry is harmless. T enn. R. Ap p. 36(b); Ten n. R. Crim. P. 5 2(a).

C. Nonstatutory Mitigating Factor

Next, Defenda nt argues that the trial court erred by refusing to instruct the jury

that he had “n o crim inal rec ord or c onvictio n.” W e em phas ize at th e outs et that th is

alleged error is not of constitutiona l magnitude , as jury instructions on specific non-

statutory mitigating circumstances are not co nstitutiona lly mand ated. See Hodges,

944 S.W .2d at 351 -52; Odom, 928 S.W .2d at 30; State v. Hutchison, 898 S.W.2d

161, 173-7 4 (Tenn. 19 94). Therefore, the right to such instructions, as well as the

form an d conte nt of the ins tructions, d erives so lely from the statute.

The court charged the jury with the statutory mitigating factor which states that

“defendant has no significant h istory of prior crim inal activity.” Te nn. Co de Ann . §

39-13-204 (j)(1). However, Defendant urged the trial court to charge the jury that

Defendant had “no criminal record or conviction.” In Odom, which was decided

some six mo nths b efore th e insta nt cas e wen t to trial, the suprem e court interpreted

Tenn. Code Ann. § 3 9-13-20 4(e)(1) to re quire jury ins tructions o n non-s tatutory

mitigating circumstances raised by the evidence and proffered by a defendant as

having mitigating value. In addition, the court stated tha t instructing on non statutory

mitigating circumstances must n ot be fact s pecific an d imply to the jury that the judge

-46-
had made a finding of fact. Instead, the instructions on nonstatutory mitigating

circumstances must be “dra fted so that whe n they are considered by the jury, the

statutory mitigating circumstances are indistinguishable from the nonstatuto ry

mitigating circumstanc es.” Odom, 928 S.W.2d at 32. The supreme court further

interpreted the “no distinction” portion of the statute as precluding the trial judge from

revealing to the jury that a request was made and from identifying the party making

the requ est. Id.

Defendant does not specifically state why the mitigating factor proposed by

him should have been included. We do not believe that the instruction offered by the

court that the “defendant has no significant history of prio r criminal a ctivity” failed to

convey Defendant’s theory of mitigation to the jury. We find very little difference

between the two instructions. Furthermore, had the trial judge offered Defe ndan t’s

fact-sp ecific instruction, it could have implied to the jury that the judge had made a

finding of fact in contravention of Article VI, § 9 of the Tennessee Constitution.

Odom, 928 S.W.2d at 32. Though not explicitly stated in Odom, the clear implication

is that instruction s on n onsta tutory m itigating circum stanc es m ust be phras ed in

general catego ries similar to the statuto ry mitigating circums tances . In this case, the

trial court offered the more ge neralized instruction to the jury to conform to the

evidence and the law. See id. The statutory mitigating factor charged was not as

spec ific as Defendant’s special request. However, the instruction given by the trial

court generally encompassed the su bject con tained w ithin the sp ecial requ est.

There fore, we conclud e that the trial court’s refusal to ch arge the jury on the

nonsta tutory mitiga ting circum stance did not co nstitute erro r.

D. Request for Modified T.P.I. Instruction

-47-
 Defendant asserts that the trial co urt com mitted er ror when it refused to

charge Tennessee Pattern Jury Instruction 43.03 during the sentencing phase of

trial. That instruction addresses the situation where the defendant refuses to testify

during the guilt phase of trial. It states:

The defendant has not taken the stand to testify as a
witness but you shall place no sign ificance o n this fact.
The defendant is presumed innocent and the burden is on
the state to prove his gu ilt beyon d a rea sona ble doubt. He
is not req uired to take th e stan d in his own beha lf and h is
election not to do so cannot be considered for any
purpose against him, nor can any inference be drawn from
such fac t.

T.P.I. 43.03.

The jury in this case was g iven this instruc tion du ring the guilt phas e of trial.

Defe ndan t’s concern at the sentencing hearing was that the jury should be instructed

that the burden is upon the State to prove aggravating circumstances. In response

to his concern, the trial cou rt correctly advised Defendant that the pattern instruction

for sentencing for life imprisonment or life imprisonment without the possibility for

parole addressed this concern. That instruction included the following language:

The burden of proof is upon the state to prove any
statutory aggravating circu mstance or circumstances
beyond a reasonable doubt. A reasonable doubt is a
doubt based upon reason and common sense after careful
and impa rtial con sidera tion of a ll the evid ence in this case.

See T.P.I. 7.04(a).

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 In light of the foregoing instruction, we find Defendant’s request to be

unwarranted. Defendant wanted the jury to know that the State had the burden of

proof as to the aggravating circumstances, and we find that the instruction given

accomplished that purpose. Any error in not charging T.P.I. 43.03 was harmless and

does not co nstitute reversible error.

X. Admissibility of Certain Testimony

Defendant argue s that th e trial co urt com mitted error b y perm itting ce rtain

testimony at the sentencing hearing. First, he argues that the testimony of Vale rie

Roscoe, the victim’s fiancee, was irrelevant and inadmissible under Tenn. R. Evid.

403. Ms. Roscoe testified conc erning her we dding plans with the victim and the fact

that she intended to convert to Catholicism. Defendant objected to Ms. R osco e’s

testimony and the trial court overruled it on the ground that her relationship with the

victim was in fact ma terial. Secondly, Defenda nt asserts that the trial cou rt abused

its discretio n by allowing the State to call Officer Peel as a rebuttal witness

concerning Defenda nt’s statemen ts regarding his p rior criminal activity. The S tate

offered the testim ony of Peel in order to demonstrate to the jury that Defendant

stated that he had p rior criminal ac tivity and to clarify or correct what the defense

had charac terized as a statem ent mere ly bein g attributed to him. T he trial court

found the officer’s testimony to be in rebuttal and not beyond the scope of

Defen dant’s pro of.

Defendant has not sho wn how the testimony of M s. Roscoe or Officer Peel

prejudiced him. Although we find the relevancy of parts of Ms. Roscoe’s testimony

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to be questionable, any error in admitting the testimony would be harmless. Tenn.

R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Therefore, we find no merit to this issue.

XI. Jury Instruction to “Continue Deliberations”

During deliberations following the sentencing hearing, the jury twice sought

guidance from the judge. In the first instance, the jury sent two questions to the

judge. First, the jury wanted to know “C an the 5 1 years s entenc e [for life

imprison ment] ever be changed by statute,” and se condly “W hat happe ns if the Jury

cannot come to a unanimo us decision? ” In response to those questions, the judge

simp ly replied that he could not answer those questions. A few minutes later, the

jury sent a statement to the judge informing him that they could all agree on the

aggravating circumstances, but that they could not reach a decision as to the

sentence to impose. The jud ge sen t a written response instructing them to “continue

deliberatio ns per e arlier instruc tions.”

Defendant argue s that th e trial co urt failed to follow the gu ideline s set fo rth in

Kersey v. State, 525 S.W .2d 139 (Tenn . 1975) a nd in Se ction 5.4 of the ABA

Standards Relating to Trial by Jury by directing the jury to “co ntinue de liberations .”

Defendant argues that the statement essentially coerced the jury into returning the

verdict. Specifically, the Kersey court formulated the following instructions a judge

should issue when face d with a dead locked jury:

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 The verdict must represent the considered judgment of
each juror. In orde r to retu rn a ver dict, it is necessary that
each juror agre e thereto . Your verd ict must be
unanim ous.

It is your duty, as jurors, to consult with one anoth er and
to deliberate with a view to reaching an agreement, if you
can do so withou t violence to individual jud gmen t.
Each of you must decide the case for yourself, but do so
only after an impartial consideration of the evide nce with
your fellow jurors. In the course of your deliberations, do
not hesitate to reexamine your own view and change your
opinion if convinced it is erroneous. But do not surrender
your honest conviction as to the weight or effect of
evidence solely because of the opinion of your fellow
jurors, or for th e mere purpos e of return ing a verd ict.

Kersey, 525 S.W.2d at 145. T he co urt also noted that the charg e ma y be giv en on ly

in the form specified in that opinion, and then, only when it was given as part of the

main charge. “Strict adherence is expected and va riations will not be pe rmissible .”

Id. at 145.

As to the first set of questions sent to the judge by the jury, we find that the

questions alone are insu fficient to show that the jury wa s deadlock ed. The jury

simp ly asked if the verdict h ad to b e una nimo us; it did not actually say tha t they were

deadlo cked. T herefore , we find tha t the dictate s of Kersey do not ap ply.

As to the judge’s response to the second question sent to him, “continue

deliberations per earlier instructions,” we find that the comment was not directe d to

jurors in the minority, nor did it urge such jurors to reevaluate or to cede their views

to those of th e majo rity. Similarly, the court did not impose a deadline on the jury for

its deliberation. We find tha t the ca se is sim ilar to State v. Baxter, 938 S.W.2d 697,

703 (Tenn . Crim. A pp. 199 6), perm. to appeal denied (Tenn. 1997), in which the

judge told the jury, “I’m g oing to ha ve you co ntinue to d eliberate.” See also State v.

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Dick, 872 S.W .2d 938 , 946 (T enn. C rim. App . 1993). As in Baxter, we do not view

the trial court’s comments as requirin g a reve rsal of th e con viction. A n error in the

charge to the jury is not grounds for reversal unless it affirmatively appears that the

error has affected the results of the trial. Tenn. R. App. P. 36(b); Vanderbilt

Univers ity v. Steely , 566 S.W .2d 853, 854 (Tenn. 197 8). The rem arks by the cou rt

were not an “und ue intrusio n . . . into this exclu sive provin ce of the ju ry . . . .”

Kersey, 525 S.W .2d at 144 ; see also State v. Goad, 707 S.W.2d 846, 851 (Tenn.

1986); Bass v. Bark sdale , 671 S.W.2d 476 (Tenn. App. 1984) (adopting Kersey and

noting that “[n]othing should be done or said to a juror which can in any manner be

taken by that juror to indicate that he or she should abandon an honestly h eld

conviction in order to reach a verdict . . . .”). Therefore , Defend ant is not e ntitled to

relief on this ground.

XII. Viewing of Video Taped Confession in Jury Room

In this issue, Defendant contends that the trial cour t abuse d its discretion by

permitting the jury to view the video tape of his confession during the deliberations

following the sentencing phase of the trial. Rule 30.1 provides as follows:

Jury Exam ination of E xhibits -- Upon retiring to consider
its verdict, the jury shall take to the jury room all exhibits
and writings wh ich have been re ceived in e vidence , except
depositions, for their examination during deliberations,
unless the cour t, for good cause, determines that an
exhibit should not be taken to the jury room.

Tenn. R. Crim. P. 30.1 (emphasis added). First, it is well established that a jury in

a bifurcated trial may rely upon the evidence presented during the guilt phase of trial.

See Tenn . Code Ann. § 3 9-13-20 4(e); State v. Teague, 897 S.W.2d 248, 250-51

(Tenn . 1995). T herefore , contrary to Defendant’s assertion, it is irrelevant that the

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State did not introduce the videotape as evidence during the sentencing hearing.

Defendant also argues that the tape should have been excluded because it was

made in violation of his federal and state constitutional rights as discussed

previo usly in this opinio n. Tenn. Code Ann. § 39-13-204(c) states that “introduction

of any evidence secured in violation of the constitution of the United States or the

constitution of Tenne ssee” is not auth orized. Howe ver, as we determined in Issues

I-IV, introduction of the tape was not a violation of any of Defendant’s constitutional

rights. We can find no “good cause” reas on as to why th e videotape sh ould not have

been ta ken to the jury room . There fore, this issu e is withou t merit.

Conclusion

After a careful review of the entire record, including the transcripts, exhibits,

video ca ssettes, a nd briefs, w e respe ctfully affirm the judgm ent of the tria l court.

____________________________________
THOMAS T. W OODALL, Judge

CONCUR:

___________________________________
JOSEPH M. TIPTON, Judge

___________________________________
JOE G. RILEY, Judge

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