State of Tennessee v. Antonio Robinson

06/29/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 1, 2020 Session

STATE OF TENNESSEE v. ANTONIO ROBINSON

Appeal from the Criminal Court for Shelby County
No. 16-02201 Paula L. Skahan, Judge
___________________________________

No. W2019-01313-CCA-R3-CD
___________________________________

The Defendant-Appellant, Antonio Robinson, was convicted by a Shelby County jury of
aggravated robbery, facilitation of aggravated assault, and criminally negligent homicide
in violation of Tennessee Code Annotated sections 39-13-402, 39-11-403, 39-13-102, and
39-13-212. On appeal, the Defendant-Appellant claims: (1) the trial court erred in denying
his motion to suppress, and (2) the evidence presented at trial was insufficient to support
his convictions. Upon review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and J. ROSS DYER, J., joined.

Phyllis Aluko, District Public Defender, and Glover Wright, Assistant Public Defender, for the
Defendant-Appellant, Antonio Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Ronald Coleman, Assistant Attorney
General; Amy Weirich, District Attorney General; and Theresa McCusker, Assistant District
Attorney General, for the Appellee, State of Tennessee.

OPINION

On August 18, 2015, the Defendant and his co-defendant, Michael Wilson,
approached a home on Oakview Street. Dyrell Sims and his friend, Bryant James, were
sitting on the front porch of the home when the Defendant and codefendant Wilson ran
onto the porch, drew their guns, and began robbing them. During the robbery, Sims
struggled with the perpetrators and was fatally shot. Law enforcement received a tip from
CrimeStoppers implicating the Defendant in the crime and placed his photo in a line up.
The surviving victim, Bryant James, viewed the lineup and identified the Defendant as one
of the perpetrators. On September 24, 2015, three days after James identified the
Defendant, law enforcement interviewed the Defendant, who provided a statement
admitting his involvement in the robbery and Sims’ death. The Defendant was
subsequently charged with felony murder, attempted first-degree murder, employing a
firearm during the commission of a dangerous felony, and aggravated robbery. See Tenn.
Code Ann. §§ 39-13-202(a)(2), 39-12-101, 39-17-1324, 39-13-402.

Suppression Hearing. On July 13, 2016, the Defendant filed a motion to suppress
the statement he provided to law enforcement. In his memorandum to support the motion,
the Defendant alleged he was not adequately advised of his right to be free from self-
incrimination, his waiver of this right and his subsequent statement were not knowing,
voluntary, or intelligent, and his statements were improperly elicited in the absence of
counsel.

The Defendant was questioned by law enforcement at a Memphis Police
Department (MPD) homicide office from the evening hours of September 23, 2015, to the
early morning hours of September 24, 2015. Initially, the Defendant came to the office to
be questioned about a case, which we will refer to as the “Scooter” case. Later, while still
at the office, the Defendant was questioned about a second case, which we will refer to as
the instant case. The two cases are unrelated. The Defendant gave a written statement in
each case. For the sake of clarity, we will refer to the Defendant’s statement regarding the
“Scooter” case as the first statement, and the Defendant’s statement regarding the instant
case as the second statement. The following testimony was offered at the Defendant’s
December 4, 2018 suppression hearing.1

Lieutenant James Sewell, a sergeant for the Homicide Bureau of the MPD,
interviewed the Defendant on September 23, 2015.2 Lieutenant Sewell testified he had been
looking for the Defendant because he wanted to question him about the “Scooter” case. At
some point on September 23, the Defendant’s mother called the department and said she
would bring the Defendant to the homicide office. The Defendant arrived at the office at
9:00 that evening, accompanied by family members who were asked to wait in the lobby,
and was taken to an interview room.

Upon entering the interview room, Lieutenant Sewell and his colleague, Detective
Dandridge, began to “chit-chat” with the Defendant about personal topics to get him
“relaxed.” Lieutenant Sewell provided the Defendant with an advice of rights form, which
was not included in the record on appeal, and asked him to read it aloud. After reading it,
the Defendant indicated that he understood his rights, asked no questions, did not request
an attorney, and signed the form. Lieutenant Sewell testified that the Defendant was not
1
We recognize that over two years passed between the filing of the Defendant’s Motion to Suppress and
the suppression hearing. The record does not provide an explanation for this lapse in time.
2
James Sewell was a sergeant at the time of the events but was promoted to lieutenant sometime prior to
the suppression hearing.
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pressured or coerced to sign the form and did so voluntarily. After administering the advice
of rights form, Lieutenant Sewell proceeded to question the Defendant about his possible
involvement in the “Scooter” case. Shortly after the interview began, Lieutenant Sewell
determined that the Defendant was a witness in the “Scooter” case and not a suspect. At
12:40 in the morning on September 24, Lieutenant Sewell began taking the Defendant’s
written statement, which the Defendant read and made corrections to before signing. The
Defendant’s statement was not audio or video recorded. Lieutenant Sewell testified that
the Defendant never asked for an attorney during the course of their interaction.

Lieutenant Sewell stated that he did not talk to the Defendant about the instant case
and said he did not know about the case at the time. However, after speaking with the
Defendant, Lieutenant Sewell notified the lead investigator of the instant case, Detective
Spearman, that the Defendant was at the office because he knew “Spearman was interested
in talking” to the Defendant.

On cross-examination, Lieutenant Sewell testified that he spoke with the
Defendant’s mother on the phone before she brought him in for questioning and indicated
that he wanted to speak with the Defendant specifically about the “Scooter” case.
Lieutenant Sewell clarified that he administered the advice of rights form at 9:55 in the
evening, before he interviewed the Defendant. When advising the Defendant of his rights,
Lieutenant Sewell informed him these rights were specific to the “Scooter” case.

Lieutenant Sewell testified that at some point during the interview, he became aware
that the Defendant was a suspect in the instant case, though he does not remember when or
how he discovered this. Detective Dandridge, who interviewed the Defendant alongside
Lieutenant Sewell, was investigating the instant case and took a statement from
codefendant Wilson three days before the Defendant’s interview took place. Lieutenant
Sewell could not recall whether he was aware that Detective Dandridge was investigating
the instant case.

On re-direct examination, Lieutenant Sewell stated that the Defendant did not
appear to be under the influence and was never tired or falling asleep.

Detective Michael Spearman, who worked for the MPD Homicide Bureau,
interviewed the Defendant about the instant case after Lieutenant Sewell notified him that
the Defendant was in the office. Prior to the interview, Detective Spearman had received
a CrimeStopper’s tip implicating the Defendant. Detective Spearman testified that upon
entering the room, he and his colleague, Detective F. Frias, orally advised the Defendant
of his Miranda rights and the Defendant agreed to speak with them.

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 When asked how he Mirandized the Defendant, Detective Spearman stated that he
“read over the Advice of Rights Form” with the Defendant. When shown a copy of the
Defendant’s second statement, Detective Spearman stated that the rights listed on the first
page of this document was the “Advice of Rights” he was referring to, not a separate advice
of rights form, like the one utilized by Lieutenant Sewell. Detective Spearman testified
that he orally advised the Defendant of these rights.

Detective Spearman said the Defendant seemed to understand his rights, did not ask
any questions, signed and initialed the statement, and never requested an attorney during
their interaction. He confirmed that the Defendant’s initials on his second statement was
the only written documentation showing the Defendant received renewed Miranda
warnings. Detective Spearman testified that the Defendant was not forced or coerced to
give a statement and did so voluntarily. While in Detective Spearman’s presence, the
Defendant identified and made handwritten notes on several photographs of the crime
scene, codefendant Wilson, and the victims, Bryant James and Dyrell Sims.

During the interview, the Defendant was given pizza and water and was offered
bathroom breaks. Detective Spearman stated that the Defendant did not appear to be tired
or under the influence.

On cross-examination, Detective Spearman stated that he developed the Defendant
as a suspect based on the statement the surviving victim, Bryant James, gave to law
enforcement along with the CrimeStoppers tip. Detective Spearman had previously
interviewed codefendant Wilson, alongside Detective Dandridge. He testified that the
entire homicide team, which consisted of seven people, were working on the instant case.
Detective Spearman stated that prior to the Defendant coming into the homicide office, he
told Lieutenant Sewell that he was trying to locate the Defendant as a possible suspect in
the instant case.

Detective Spearman said Lieutenant Sewell notified him that the Defendant was at
the homicide office at 1:43 in the morning, while he was en route to the office from another
investigation. Lieutenant Sewell told Detective Spearman that he had given the Defendant
his Miranda rights, though Detective Spearman was aware these rights were given in
relation to the “Scooter” case. After Detective Spearman entered the interview room, the
same room where Lieutenant Sewell interviewed the Defendant, he told the Defendant he
wanted to speak with him about a second unrelated case.

Detective Spearman and Detective Frias began speaking to the Defendant at 1:48 in
the morning. They told the Defendant that they were not accusing him of anything and
that he was not under arrest. Detective Spearman asked the Defendant if he knew what he
wanted to speak to him about and the Defendant indicated he did not. Detective Spearman
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testified that he always advises suspects of their Miranda rights before speaking with them.
He stated that while he was trained to use a new, separate advice of rights form before
speaking with a suspect, he did not do so before interviewing the Defendant. Detective
Spearman testified that he utilized the advice of rights form that Detective Sewell had
previously completed and had the Defendant read the form aloud. After reading the form
aloud, the Defendant said that he wanted to give a statement and did not need an attorney.

Detective Spearman prepared the state report and supplement for this case, which
were not included in the record on appeal. He testified that the supplement stated the
Defendant signed a separate advice of rights form, apart from the rights listed on the first
page of his second statement, before agreeing to speak with him about the instant case.
However, Detective Spearman admitted he did not know what the supplement was
referring to. The Defendant signed the advice of rights form used by Lieutenant Sewell
only once, before he was questioned about the “Scooter” case, and as he previously stated,
he did not complete a second advice of rights form. Additionally, Detective Spearman
clarified his earlier testimony, stating that the Defendant did not initial next to the rights on
the first page of his second statement until 5:20 in the morning, after he had been
questioned.

After the Defendant was interviewed, he was moved from the interview room to an
investigator’s desk to give his typed statement, where he was handcuffed to a chair. At
this point, detectives advised the Defendant that he was under arrest. The detectives did
not audio or video record the Defendant’s interview or statement. Detective Spearman
stated that he has never audio or video recorded a suspect’s statement because he had been
trained that there were downsides to doing so, though he was never explicitly told not to
record statements.

Detective Spearman arrested the Defendant after he finished taking his written
statement. After refreshing his memory with the Defendant’s record of arrest, which was
not included in the record on appeal, Detective Spearman confirmed that it was time
stamped at 11:30 in the evening on September 23. The record of arrest stated that the
Defendant was being charged with first degree murder in the perpetration of a felony.
Detective Spearman testified that he did not create the record of arrest and stated that
“another investigator actually completed the arrest ticket. . . just because the tickets are
pretty much [computer generated].” However, the record of arrest listed Detective
Spearman as the arresting officer and contained his signature and initials. Detective
Spearman testified that he signed the record of arrest after consulting with Assistant District
Attorney Ray Lapone, who advised him to charge the Defendant with first-degree murder.

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 On re-cross examination, Detective Spearman testified that after the Defendant
began making incriminating statements in the interview room, he was not free to leave,
regardless of whether he had authority from the attorney general to arrest the Defendant.

Following the testimony at the suppression hearing, the trial court issued a written
order denying the Defendant’s motion to suppress on March 1, 2019. The order stated, in
pertinent part:

[P]rior to questioning the defendant, Detective Spearman testified that he
again reviewed the prior Advice of Rights form with the Defendant. The
statement given by [the] defendant contains a recitation of those rights and
an acknowledgment by the Defendant that he was informed of those rights
and chose to waive them. Nothing in the record indicates [that the] defendant
was incapable of understanding that officer Spearman was questioning him
about a different matter. Thus, under the totality of the circumstances, the
court finds that the warnings provided to the defendant were sufficient to
appraise him of his rights and the consequences of waiv[ing] those rights.
…
Although the warnings were only given orally and no additional written
waiver was executed… a written waiver is not required to establish the
constitutionality of the statement.
…
Although officers did not initially inform the defendant that he was a suspect
in the instant homicide, they did inform him that officers wanted to discuss
the events of August 18, 2015[,] with him and eventually their questioning
clearly indicated that they were interested in discussing the homicide for
which [the] defendant was subsequently charged…. [P]rior to Detective
Spearman’s questioning the defendant was orally advised of his rights and
the defendant acknowledged as part of the statement that he was read his
rights and was waiving those rights. He initialed that part of the statement….
[T]he court finds nothing about this procedure rendered the Defendant’s
confession constitutionally inaccurate.
…
Even if the detectives somehow conspired to get the defendant in for
questioning, there is nothing to suggest this fact, alone, was insufficient to
overbear his will and render his waiver involuntary. Thus, the court finds
nothing to suggest the defendant’s waiver was not knowing, voluntary, and
intelligent.
…

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 This court finds the preparation of a computer-generated arrest ticker did not
initiate formal proceedings in this case. Thus, the Sixth Amendment right to
counsel was not implicated.
…
[T]he court finds the State established by a preponderance of the evidence
that the defendant was properly informed of his Miranda rights and executed
a knowing, voluntary and intelligent waiver of those rights prior to
questioning. The court further finds [the] defendant never invoked his right
to counsel and was not entitled to counsel at the time of questioning without
such an invocation.

Trial. The following proof, relevant to the Defendant’s issues on appeal, was
adduced at the Defendant’s March 4, 2019 trial.

Dorothy Sims, the mother of the victim, Dyrell Sims, testified that her son was
thirty-three years old and in good health at the time of his death. She stated that her son
died on August 20, 2015, two days after he was shot.

Marcus Kirkwood, an MPD officer, responded to a robbery call at a home on
Oakview Street on August 18, 2018. When he arrived, he saw Dyrell Sims, who had been
shot, laying in the front yard and the other victim, Bryant James, pressing a towel to his
head to stop the bleeding. James told Officer Kirkwood that someone had robbed them
while they were on the front porch of the home. Officer Kirkwood said that approximately
fifteen to twenty people were present at the scene. He testified that he noticed shell casings
at the scene, though he did not collect these shell casings or recover any weapons.

On cross-examination, Officer Kirkwood stated that to his knowledge, none of the
bystanders gave a written or recorded statement.

Bryant James, the surviving victim, was a friend of Dyrell Sims and had known him
for over twenty-five years. James testified that he went to visit Sims at Sims’ mother’s
home around 5:00 in the afternoon on August 18, 2015. James and Sims sat down on the
front porch and talked for about an hour. During that time, James noticed two men standing
at the corner of Oakview and a connecting street. James and Sims decided to go get
something to eat and began to walk towards the front porch steps. James testified that
when they were approaching the steps, the two men he saw on the sidewalk corner “ran up
on the porch.” One of the men entered the porch from the side and the other came up the
front porch steps. James stated that one of the men, later identified as the Defendant, was
short and stocky and the other, later identified as codefendant Wilson, was taller with a
face tattoo and gold teeth. The Defendant approached James, codefendant Wilson
approached Sims, and both men drew their guns. The Defendant told James to “give him
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everything.” James told the Defendant he did not have anything, and the Defendant
proceeded to take seventy to eighty dollars from James’ pocket. At this point, the
Defendant approached Sims and codefendant Wilson approached James. The Defendant
took Sims’ phone and a few dollars from his pockets. Codefendant Wilson was holding
James by the front of his shirt and pointing his gun at him.

At some point, the struggle moved to the front yard. James stated that he and
codefendant Wilson began “tussling” and that he could see Sims struggling with the
Defendant. James stated that “[a]t the time Dyrell end up getting up, they was off the porch
and, well, I heard a shot. Dyrell swung at him and he was like fighting with him.” James
testified that codefendant Wilson told the Defendant to “shoot.” James was able to push
codefendant Wilson off of him and began to run away as codefendant Wilson slid down
the incline of the front yard. As James was running away, he saw the Defendant fire three
to four more shots at Sims. James stated that shots were also fired at him as he was running
away, but that he could not see who was shooting. James ducked behind a car parked on
the street. James testified that when he looked back towards the yard, he saw Sims standing
but slumped over. Another shot was fired and Sims fell forward. James stated that he did
not see who fired the last shot. After a bystander called 9-1-1, Sims ran back to the front
yard to check on Sims as the perpetrators fled the scene and rounded the street corner.
James knocked on the door of the home to let Sims’ mother, who was inside the home,
know what was going on. Sims attempted to stand but fell back to the ground. James and
Sims’ mother attempted to render aid as they waited for the ambulance to arrive. James
stated that the entire encounter lasted six to seven minutes.

On cross-examination, James testified that he and Sims’ were not smoking or
drinking before the encounter. James stated that he did not see the first shots fired, because
he was focused on codefendant Wilson, who was pointing a gun at him. During direct
examination, James stated that the first shot was a single shot. On cross-examination,
James indicated that there were multiple shots. When James heard the first shots, he turned
towards the Defendant and Sims and saw them fighting over the gun, with the gun pointing
towards the ground. James testified that codefendant Wilson was running past Sims as the
final shot rang out.

James spoke with the police officers who arrived at the scene and was transported
to a police precinct to give a typed statement. In the statement, James gave descriptions of
the perpetrators. James described the Defendant as approximately five foot four with a thin
mustache, “stubby but not fat,” and in his mid-twenties to early thirties with a “light brown
paper sack like complexion.” James described codefendant Wilson as five foot eight to
five foot nine, in his twenties to early thirties, and noted that he had a darker complexion
than the Defendant. James also stated that codefendant Wilson had a “W” tattoo on the
side of his face. On September 11, 2015, James identified codefendant Wilson as one of
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the perpetrators in a photographic lineup. James noted that it was easy to identify him by
his face tattoo. On September 21, 2015, James identified the Defendant in a second
photographic lineup. James testified that he did not know either the Defendant or
codefendant Wilson prior to the offense in this case.

Detective Michael Spearman testified at trial, reiterating his testimony from the
suppression hearing. Detective Spearman also testified that when he entered the interview
room, he asked the Defendant if he could talk to him about a case involving a victim named
Dyrell Sims. Detective Spearman stated that the Defendant initially stated that he did not
know anything about the instant case. Eventually, the Defendant admitted that he had
information about the crime and gave his second statement, recounting the events that
occurred. In the statement, the Defendant said that two other individuals were involved in
the perpetration of the crime: codefendant Wilson, who he referred to as “Dirty,” and a
driver, who he referred to as “Donnell.” Detective Spearman read the Defendant’s second
statement aloud, including the following excerpt:

…Dirty called me and asked did I talk to Donnell. I was like naw, I hadn’t
talked to him. I was like what is going on? He was like, I was about to give
you -- give him your number and then y’all come and get me. I was like
aight (sic).

Then Donnell called me like twenty minutes later and then pull up and got
me from the Pendleton Place Apartments in his black Benz. Then went to
Southern and picked up Dirty. Then he hopped in the car. Donnell started
saying that they got a move for us and he said it was going to be sweet. He
said the n**** be walking around with about four to five thousand dollars on
him. We were on our way over to Glenview. We rode past the street and
then seen him back -- and then we see him make -- seen him make a
transaction. Then Donnell parked around the corner in front of the school.
Me and Dirty got out of the car and walked toward the house that Donnell
pointed out when he drove by.

Dirty ran up on the porch first and said don’t move, I’m going to blow your
ass off. By that time I then ran up on the other side -- on the other guy and
went in his pocket and found a quarter of weed. Dirty was grabbing the
money from the big guy. He then walked off and said take me inside the
house. I was going toward the big dude and grabbing him and I said where
the money at? He said all I got man -- he said that all I got man, I don’t, I
don’t live here, my mama inside of there. By that time I was about to leave
the porch and I had my gun in my right hand. The big guy then started to
struggle for the gun. While we were struggling some shots went off. I think
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 I shot him in the leg and somewhere in his side. Shit, when I knew he was
shot I got up and ran. While I was running I heard some more shots and
turned around it was Dirty shooting at them. We then ran to the car and I got
in the passenger side and Dirty got into the back seat. When we got back in
the car Dirty took my gun from me. Donnell then dropped me off at my
grandmomma’s house and Dirty stayed in the car with him.

The Defendant’s second statement was time stamped at 6:35 in the morning on
September 24, 2015. The Defendant was given an opportunity to make corrections and
subsequently signed and initialed the statement.

On cross-examination, Detective Spearman testified that he did not audio or video
record his interrogation of the Defendant because it is the policy of the MPD not to record.
He stated that he had not been trained that there are downsides to recording interrogations.
Detective Spearman admitted that he knew what he wanted to hear from the Defendant
before he began interviewing him. He said that although he told the Defendant he was not
accusing him of anything and that he was not under arrest, he believed that the Defendant
was a suspect in the instant case and intended to charge him with first-degree murder,
regardless of what he said during the interrogation.

Detective Spearman testified that after reviewing Bryant James’ initial statement,
he had remaining questions. Bryant James told Spearman that the perpetrators had used
semi-automatic weapons during the crime, which would leave shell casings behind, yet no
casings were recovered by the crime scene investigator. Detective Spearman met with
James at a Burger King ten days after the crime to ask him follow up questions. The
following day, Detective Spearman spoke with James on the phone and asked him to
provide descriptions of the perpetrators. Detective Spearman confirmed that during this
conversation, James told him that one of the suspects had dreadlocks. However, in the
photo line ups that James viewed, neither the Defendant, nor codefendant Wilson, had
dreadlocks.

On re-direct examination, Detective Spearman testified that he did not tell the
Defendant what to say in his second statement. Detective Spearman stated that no guns
were recovered in this case.

On re-cross examination, Detective Spearman confirmed that Bryant James was the
only witness to give a formal statement to law enforcement.

J.R. Rector, an MPD crime scene investigator, was assigned to process the crime
scene at Oakview. When he arrived, he spoke to the officers who were present, gathered

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background information on Sims, and began to process the scene. Officer Rector
completed a grid search of the scene for shell casings but did not recover any.

On cross-examination, Officer Rector clarified that as a crime scene investigator, he
works at the request of case investigators. In this case, he was working under the direction
of Detective Spearman. Officer Rector testified that he was not asked to collect
fingerprints, blood, or anything else that could contain DNA from the crime scene.

Dr. Marco Ross, the deputy chief medical examiner at West Tennessee Regional
Forensic Center, performed Sims’ autopsy. Dr. Ross testified that Sims’ had five gunshot
wounds. He identified one of the wounds, to the back of the head, as the fatal shot. Dr.
Ross stated that the trajectory of this wound was consistent with Sims standing bent
forward towards the shooter as the shot was fired. The second wound was to the torso. Dr.
Ross stated this wound was potentially fatal, but not as fatal as the head wound. The three
other wounds, located on the hips and thighs, were not fatal in nature. Dr. Ross was unable
to determine the order that the injuries were sustained. He determined that the cause of
death was multiple gunshot wounds and that the manner of death was homicide.
Additionally, Dr. Ross stated that a test of Sims blood showed the presence of
cannabinoids.

On cross-examination, Dr. Ross stated that the autopsy was performed on August
22, 2015, the day after Sims died. He said that either the head wound or the torso wound
alone could have caused Sims’ death, without the other wounds. He did not inspect the
clothing that Sims was wearing when he was shot because the clothing was not provided
to him. Dr. Ross explained that it is impossible to tell when Sims smoked or ingested
cannabinoids from the blood test results.

Following the proof at trial, the Defendant was convicted of the lesser charge of
criminally negligent homicide in Count 1. Tenn. Code Ann. § 39-13-212. He was
convicted of the lesser charge of facilitation of aggravated assault in Count 2. Id. § 39-11-
403, 39-13-102. He was found not guilty of employing a firearm during a robbery in Count
3. He was found guilty of aggravated robbery in Count 4. Id. § 39-13-402. Subsequently,
at the sentencing hearing, the Defendant was given an effective sentence of 10 years
imprisonment. The Defendant filed a “Motion for Judgment of Acquittal or, in the
Alternative, a New Trial,” which was overruled following a hearing. The Defendant filed
a timely notice of appeal on July 17, 2019.

ANALYSIS

I. Motion to Suppress. The Defendant claims that the trial court erred in denying
his motion to suppress the incriminating statement he gave law enforcement, arguing that:
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(1) his waiver of the right to be free from self-incrimination and statement were not
knowing, voluntary, and intelligent; (2) law enforcement elicited his statement during
custodial interrogation without adequately advising him of his right to be free from self-
incrimination; and (3) law enforcement elicited his statement without the presence of
counsel.

This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise. State v. McCormick, 494 S.W.3d 673, 678 (Tenn.
2016) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he
prevailing party in the trial court is afforded the ‘strongest legitimate view of the evidence
and all reasonable and legitimate inferences that may be drawn from that evidence.’” State
v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn.1998)). “Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of
law to the facts is de novo, with no presumption of correctness. McCormick, 494 S.W.3d
at 678. When the trial court’s findings of fact are based entirely on evidence that does not
involve issues of witness credibility, however, appellate courts are as capable as trial courts
of reviewing the evidence and drawing conclusions and the trial court’s findings of fact are
subject to de novo review. State v. Clark, 452 S.W.3d 268, 282 (Tenn. 2014) (citing State
v. Northern, 262 S.W.3d 741, 748 n.3 (Tenn. 2008); State v. Payne, 149 S.W.3d 20, 25
(Tenn. 2004)). The trial court’s determination at the suppression hearing that a confession
was voluntary is presumptively correct on appeal. State v. Stephenson, 878 S.W.2d 530,
544 (Tenn. 1994). Further, we note that in evaluating the correctness of a trial court’s
ruling on a pretrial motion to suppress, appellate courts may consider the proof adduced
both at the suppression hearing and at trial. State v. Thacker, 164 S.W.3d 208, 248 (Tenn.
2005).

The Fifth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, states that “[n]o person ... shall be compelled in any
criminal case to be a witness against himself.” Similarly, the Tennessee Constitution states
“that in all criminal prosecutions, the accused ... shall not be compelled to give evidence
against himself.” Tenn. Const. art. I, § 9. However, an accused may waive the right against
self-incrimination, assuming the waiver is made voluntarily, knowingly, and intelligently.
State v. Climer, 400 S.W.3d 537, 557 (Tenn. 2013) (citing Miranda v. Arizona, 384 U.S.
436, 479 (1966)). Pursuant to Miranda, a suspect “must be warned prior to any questioning
that he has the right to remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any questioning if he so desires.” State
v. Lowe, 552 S.W.3d 842, 866 (Tenn. 2018) (quoting Miranda v. Arizona, 384 U.S. 436,
479 (1966)).
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 The Defendant makes three arguments to support his claim that the trial court erred
in denying his motion to suppress the incriminating statement he made to law enforcement.
Each of these arguments, while based in different bodies of law, relate to whether the
defendant was adequately advised of his Miranda rights before he was questioned by
Detective Spearman. The Defendant claims that the State failed to offer credible testimony
to prove Detective Spearman advised him of his constitutional rights, arguing that
inconsistencies in Detective Spearman’s testimony make him an unreliable witness.
Specifically, the Defendant notes that Detective Spearman’s supplement states the
Defendant signed a second separate advice of rights form prior to interrogation, though
Spearman admitted he failed to use a second separate advice of rights form, and the advice
of rights form utilized by Lieutenant Sewell does not contain a second signature.
Essentially, the Defendant asks us to completely disregard Detective Spearman’s
testimony.

However, “[q]uestions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge
as the trier of fact. The party prevailing in the trial court is entitled to the strongest
legitimate view of the evidence adduced at the suppression hearing as well as all reasonable
and legitimate inferences that may be drawn from that evidence. So long as the greater
weight of the evidence supports the trial court’s findings, those findings shall be upheld.”
State v. Odom, 928 S.W.2d 18. 23 (Tenn. 1996).

Here, the trial court found that before questioning began, Detective Spearman used
the advice of rights form that Lieutenant Sewell previously completed and had the
Defendant read it aloud. The evidence supports this finding. Detective Spearman testified
to this fact at the suppression hearing, and no contradictory or conflicting proof was offered
by the Defendant. Though the Defendant correctly notes that no written waiver of rights
was completed before he was questioned, the record adequately supports, and the trial court
correctly found, that Detective Spearman orally advised him of his Miranda rights before
interrogation began.

Additionally, the trial court also found that before the Defendant gave his formal
statement, he was advised of his rights and initialed next to each right listed on his second
statement, a fact that the Defendant does not dispute. Detective Spearman testified that the
Defendant initialed by the rights listed on his second statement at 5:20 in the morning. The
Defendant’s statement was time stamped at 6:35 in the morning. We conclude that the
Defendant was adequately advised of his constitutional rights, waived them prior to
speaking with law enforcement, and gave a written statement.

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 a. Knowing, Voluntary, and Intelligent. The Defendant asserts that under the
totality of the circumstances, his waiver of the right to be free from self-incrimination and
his later statement were not made knowingly, voluntarily, and intelligently. Specifically,
the Defendant notes that law enforcement did not tell him the subject of interrogation
before questioning began. The Defendant also contends that law enforcement used
deception tactics to elicit his statement without adequately advising him of his Miranda
rights. The State responds that the Defendant was explicitly informed both of the subject
of interrogation and his rights.

A court must look to the totality of the circumstances in determining whether a
defendant has validly waived his Miranda rights. State v. Middlebrooks, 840 S.W.2d 317,
326 (Tenn.1992) (citations omitted). A court should consider the following when looking
at the totality of the circumstances: The age of the accused; his lack of education or his
intelligence level; the extent of his previous experience with the police; the repeated and
prolonged nature of the questioning; the length of the detention of the accused before he
gave the statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bringing him before a magistrate before
he gave the confession; whether the accused was injured intoxicated or drugged, or in ill
health when he gave the statement; whether the accused was deprived of food, sleep or
medical attention; whether the accused was physically abused; and whether the suspect
was threatened with abuse. State v. Huddleston, 924 S.W.2d 666, 671 (Tenn.1996)
(citations omitted).

First, we address the Defendant’s contention that his waiver could not have been
knowing because he “did not have ‘any idea’ what Detective Spearman wanted to speak
with him about.” This court has held that “the failure of law enforcement officials to inform
a suspect of all the possible subjects of interrogation is not relevant to determining whether
the suspect voluntarily, knowingly, and intelligently waived his or her Fifth Amendment
privilege.” State v. Green, 995 S.W.2d 591, 600 (Tenn. Crim. App. 1998) (citing Colorado
v. Spring, 479 U.S. 564 (1987)). Furthermore, the record indicates that the Defendant was
informed of the subject of questioning before interrogation began. At trial, Detective
Spearman testified that when he entered the interview room, he told the Defendant that he
wanted to “talk about a case that was concerning our victim, Dyrell Sims.”

Next, the Defendant claims that “the police employed deception to elicit statements
from [him] without a knowing, intelligent, and voluntary waiver of his rights . . . .” The
Defendant implies that police brought him into the station under the pretense of questioning
him about the “Scooter” case with the intent to subsequently charge him in the instant case.
The Defendant notes Lieutenant Sewell’s inconsistent testimony regarding whether he
knew the Defendant was a suspect in the instant case. However, as noted by the trial court,
Detective Spearman was not at the homicide office when the Defendant was brought in for
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questioning on the “Scooter” case. Further, deception by law enforcement does not, alone,
render a statement involuntary. State v. Smith, 933 S.W.2d 450, 455-65 (Tenn. 1996).
Rather, the question is, under the totality of the circumstances, “‘whether the behavior of
the state’s law enforcement officials was such as to overbear petitioner’s will to resist and
bring about confessions not freely self-determined....’” Id. at 465 (quoting State v. Kelly,
603 S.W.2d 726, 728 (Tenn. 1980).

Looking to the totality of the circumstances, we conclude that the Defendant’s
waiver of rights and subsequent statement were made knowingly, voluntarily, and
intelligently. First, as discussed above, the record and proof presented at trial show that
the Defendant was adequately advised of his rights. Turning to the remaining factors, the
Defendant was accompanied to the homicide office by family members, offered bathroom
breaks, given food and water, and officers testified that he did not appear to be tired or
under the influence. Though the Defendant was nineteen years old at the time of
questioning and had little experience with law enforcement, nothing in the record indicates
that he was incapable of understanding his Miranda rights. Additionally, the Defendant
does not allege that he was abused or threatened by law enforcement.

Lastly, the Defendant argues that this court should consider the absence of audio or
video record of his statement in our analysis. As the trial court correctly noted, “there is
no constitutional requirement under the Tennessee Constitution or the United States
Constitution which requires the [D]efendant’s confession to be recorded.” Upon reviewing
the totality of the circumstances, we conclude that the Defendant waived his constitutional
rights and subsequently made a statement.

b. Right to be Free from Compelled Self-Incrimination. The Defendant argues
that police elicited his statement during custodial interrogation without adequately advising
of his right to be free from compelled self-incrimination. He claims that the Miranda
warnings Lieutenant Sewell provided were not sufficient to adequately advise him of his
rights in the instant case, that new warnings were required, and that the record does not
prove that he received renewed warnings. In response, the State argues that the warnings
provided by Lieutenant Sewell were sufficient, that the Defendant’s waiver of rights
remained valid when he was interrogated by Detective Spearman, and further, that
Detective Spearman provided the Defendant with renewed warnings.

First, the State does not dispute the trial court’s finding that the Defendant was in
custody when he was interrogated by Detective Spearman. Next, we must determine
whether Detective Spearman was required to readvise the Defendant of his Miranda rights
before questioning him about the instant case. “A valid waiver of Miranda rights remains
valid unless the circumstances change so seriously that the suspect’s answers to
interrogation are no longer voluntary or unless the suspect is no longer making a knowing
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and intelligent waiver of his rights.” State v. Rogers, 188 S.W.3d 593, 606 (Tenn. 2006)
(citing Wyrick v. Fields, 459 U.S. 42, 47 (1982)). “Courts must examine the totality of the
circumstances to determine whether renewed warnings are required.” Id. The
circumstances to be examined include but are not limited to:

1) the amount of time that has passed since the waiver; 2) any change in the
identity of the interrogator, the location of the interview, or the subject matter
of the questioning; 3) any official reminder of the prior advisement; 4) the
suspect's sophistication or past experience with law enforcement; and 5) any
indicia that the suspect subjectively understands and waives his rights.

Id.

In its order denying the Defendant’s motion to suppress, the trial court implicitly
found that the renewed warnings were not required before Detective Spearman began
questioning the Defendant. The trial court found that the length of time between the
Defendant’s initial waiver of rights and his second interview with Detective Spearman,
three hours, was insignificant. Additionally, the trial court noted that although the identity
of the interrogator and the subject of the interrogation changed, the Defendant remained in
the same room for both interviews and was in continuous police presence. However, the
trial court failed to analyze the circumstances that indicate renewed warnings were
required. The Defendant was nineteen years of age and had no previous experience with
law enforcement. Since the Defendant was determined to be a witness in the “Scooter”
case and a suspect in the instant case, the tone of questioning changed substantially between
the first and second interview. Most importantly, when Mirandizing the Defendant,
Lieutenant Sewell explicitly stated that these rights were specific to the “Scooter” case,
conceivably leading the Defendant to believe that these rights, and his waiver of these
rights, did not apply to his second interrogation with Detective Spearman. Though we note
that it is a close call, we conclude that the circumstances had so seriously changed that the
Defendant’s initial waiver of rights was no longer valid.

More important to our analysis is the trial court’s finding that the Defendant did, in
fact, receive renewed warnings before he was questioned about the instant case. As
previously noted, the trial court found that Detective Spearman utilized the advice of rights
form used by Lieutenant Sewell before questioning began. Though the Defendant correctly
notes that no written waiver exists to document the renewed warnings, “the law does not
require a written waiver.” State v. Mann, 959 S.W.2d 820, 823 (Tenn. Crim. App. 1986).
Based on the above analysis, we conclude that the Defendant received renewed warnings
and was adequately advised of his right to be free from compelled self-incrimination.

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 c. Statement Elicited Without Counsel. The Defendant contends that police
improperly elicited his statement in the absence of counsel. In response, the State argues
that the right to counsel had not attached because the adversarial judicial process had not
begun. Additionally, the State claims that even if the right to counsel had attached, the
Defendant was adequately advised of his constitutional rights and chose to waive them.

The Sixth Amendment of the United States Constitution ensures that “[i]n all
criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel
for his defense.” U.S. Const. amend. VI. In Tennessee, the Sixth Amendment right to
counsel attaches when judicial proceedings are initiated. State v. Frasier, 914 S.W.2d 467,
469 (Tenn. 1996) (citing State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980)). Initiation
is marked by formal charge, which includes indictment when the charge is initiated by a
grand jury. Id. “[O]nce the adversary judicial process has been initiated, the Sixth
Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages
of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing
United States v. Wade, 388 U.S. 218, 227-28 (1967); Powell v. Alabama, 287 U.S. 45, 57
(1932)). Interrogation by the State is considered a “critical” stage of the criminal
proceedings. Id. (citing Massiah v. United States, 377 U.S. 201, 204-05 (1964); United
States v. Henry, 447 U.S. 264, 274 (1980)).

The Tennessee Supreme Court has held that “the right to counsel attaches ‘at the
time an arrest warrant issues, a preliminary hearing is held (if no arrest warrant is issued),
or an indictment or presentment is returned.’” State v. Jackson, 889 S.W.2d 219, 222
(Tenn. Crim. App. 1993) (citing State v. Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980)).

Adversarial judicial proceedings had not yet begun when the Defendant was
questioned by Detective Spearman about the instant case. No arrest warrant had been
issued, no preliminary hearing had been held, and there had been no indictment. The
Defendant argues that by creating an arrest ticket before interrogation began, “the police
sought to skirt the bounds of the law, which requires the State to provide [him] with counsel
once formal proceedings have begun.” The Defendant implies that an arrest ticket is the
equivalent of an arrest warrant, however, he provides no analysis to support this claim.

In any case, as discussed above, the Defendant was adequately advised of his
constitutional rights before he was questioned by Detective Spearman. The Defendant
chose to waive these rights and never requested an attorney during his interaction with
Detective Spearman. No relief is warranted.

After reviewing each of the Defendant’s arguments in turn, we determine that the
trial court properly denied the Defendant’s motion to suppress. The Defendant is not
entitled to relief on this issue.
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 II. Sufficiency of the Evidence. The Defendant argues that without his
incriminating statement to law enforcement, the evidence is insufficient to maintain his
convictions. In response, the State contends that the Defendant’s statement was properly
admitted, and that, even without the statement, the testimony of Bryant James is sufficient
evidence to support the convictions. We agree with the State.

The Defendant does not challenge any specific element of the crimes with which he
was charged. Instead, the extent of the Defendant’s argument is that without his statement,
“the only evidence tying him to Mr. Sim’s homicide is Bryant James’s identification of
him in a photo lineup.” The Defendant contends that the “identification should carry little
weight.” The Defendant notes that James described the Defendant as shorter and darker-
complected than co-defendant Wilson and claims that this description is inaccurate. This
is the only evidence the Defendant provides to discredit James’ identification.
The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as triers of
fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). Accordingly, this
court will not reweigh James’ testimony or substitute the inferences drawn by the jury with
our own. State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (citing State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). We conclude that the evidence was sufficient to support
each of the Defendant’s convictions.

CONCLUSION

Upon review, we affirm the judgment of the trial court.

____________________________________
CAMILLE R. MCMULLEN, JUDGE

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