IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1997 SESSION
FILED
August 15, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9611-CR-00428
Appellee, )
) SHELBY COUNTY
VS. )
) HON. BERNIE WEINMAN,
) JUDGE
JOHNNY R. GOODE, )
) (Voluntary Manslaughter)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD WITT CHANDLER JOHN KNOX WALKUP
2025 Mt. Moriah Rd., Ste. A-100 Attorney General & Reporter
Memphis, Tennessee 38115
PETER M. COUGHLAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
WILLIAM L. GIBBONS
District Attorney General
PATIENCE BRANHAM
Assistant District Attorney General
Criminal Justice Complex
201 Poplar, Ste. 301
Memphis, Tennessee 38103
OPINION FILED: _________________
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Johnny R. Goode, appeals as of right a jury conviction of
voluntary manslaughter. He was sentenced to four (4) years at the Shelby County
Correctional Center and fined $10,000. He presents three issues for our review: 1)
whether the trial court correctly refused to suppress the defendant’s statement; 2)
whether the evidence is sufficient to sustain the voluntary manslaughter conviction;
and 3) whether the trial court properly denied the defendant probation. The
judgment of the trial court is AFFIRMED.
FACTS
On June 10, 1995, the defendant, an admitted “crack cocaine” addict, shot
and killed Jerome “Bud” Walker. Walker was a contact between the defendant and
various drug dealers. On the evening of the shooting, Walker flagged the defendant
down and asked if he wanted to buy any “crack.” Displeased with his last purchase
from Walker, the defendant refused. Walker then suggested they drive to a different
location where the defendant could buy better “crack.” Walker ultimately led the
defendant to “Rooney,” another drug supplier, from whom the defendant purchased
$100 worth of “crack cocaine.” After the transaction, Walker asked for a ride home,
and the defendant agreed.
As the defendant drove into Walker’s parking lot, the defendant alleged that
Walker threatened him with a knife and demanded the “crack cocaine.” The
defendant never actually saw a knife, and a set of keys was the only item found in
Walker’s hands. The defendant alleged that Walker lurched at him, and defendant
shot Walker in the neck. Walker died of the bullet wound a short time later.
The defendant went home and did not call the police. The next morning he
received several calls from individuals claiming to be “Kenny,” a drug dealer and
friend of Walker’s. The caller insisted that the defendant go to a car wash to meet
with him. The defendant did not recognize the voice as Kenny’s and suspected he
was being set up to be killed for shooting Walker. The defendant armed himself with
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two semi-automatic weapons and left for the car wash. Before leaving, he wrote
several notes explaining that the shooting of Walker was in self-defense and if he
were found dead, it was Kenny and his friends who killed him.
When the defendant arrived at the car wash, he was approached by Captain
Michael Houston and Sergeant Jim Nichols of the Memphis Police Department.
They had received a tip that the defendant had killed Walker. After asking the
defendant his name, the officers noticed a bulge in the defendant’s shirt which
appeared to be a gun. At this point, the two officers pulled their own weapons. As
they took two guns from the defendant, Captain Houston asked the defendant which
gun he used to kill Walker. The defendant replied he used the smaller one.
The officers arrested the defendant and placed him in the squad car. As Sgt.
Nichols was interviewing witnesses on the street, the defendant told Capt. Houston
that he had not been read his rights. Capt. Houston stated he was not going to be
questioned yet; however, he informed the defendant of his rights. Capt. Houston told
the defendant again that he was not going to be questioned at that time.
As they waited in the car, the defendant stated that he wanted the officer to go
to his house and collect a shell casing and the notes which he had written describing
the shooting. The defendant signed a consent to search form. The officers went to
his house, collected the notes and shell casing, then returned to the police station
where the defendant was again explained his rights. The defendant subsequently
gave a written statement admitting to the shooting of Walker.
Although charged with second degree murder, the defendant was convicted
by the jury of the lesser offense of voluntary manslaughter.
MOTION TO SUPPRESS
The defendant argues that the trial court erroneously refused to suppress his
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statements and contends they were taken during a custodial interrogation before he
was advised of his constitutional rights. He contends that he was “in custody” when
stopped and initially questioned by the police officers and that subsequent
statements and evidence flowing therefrom are tainted as “fruit of the poisonous
tree.”
I. Custodial Interrogation
Statements of an accused person “stemming from custodial interrogation”
cannot be introduced as evidence unless certain warnings are given to protect a
person’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444,
86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). The Miranda warnings are
required only in situations of “custodial interrogation.” State v. Cooper, 912 S.W.2d
756, 759 (Tenn. Crim. App. 1995). “Custodial interrogation” is defined as
“questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.”
Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; State v. Smith, 868
S.W.2d 561, 570 (Tenn. 1993); Cooper, 912 S.W.2d at 759.
In State v. Anderson, our Supreme Court held that the applicable standard to
determine whether an individual is “in custody” is whether under the totality of the
circumstances, a reasonable person in the suspect’s position would consider himself
or herself deprived of freedom of movement to a degree associated with a formal
arrest. 937 S.W.2d 851, 855 (Tenn. 1996). Along with the objective standard, the
Court listed the following non-exclusive factors for courts to consider: the time and
location of the interrogation; the duration and character of the questioning; the
officer’s tone of voice and general demeanor; the suspect’s method of transportation
to the place of questioning; the number of police officers present; any limitation on
movement or other form of restraint imposed on the suspect during the interrogation;
any interactions between the officer and the suspect, including the words spoken by
the officer to the suspect and the suspect’s verbal or nonverbal responses; the extent
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to which the suspect is confronted with the law enforcement officer’s suspicions of
guilt or evidence of guilt; and finally, the extent to which the suspect is made aware
that he or she is free to refrain from answering questions or to end the interview at
will. Id.; see also State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997).
II. Evidence at the Suppression Hearing
The evidence at the suppression hearing revealed that there were three
separate instances in which the defendant divulged inculpatory evidence. The first
was an affirmative response to the police officer’s inquiry about which gun the
defendant used to kill Walker. The second involved incriminating notes and the
matching shell casing found in the defendant’s carport as a result of the consent
search. The third was a written admission to the killing of Walker signed by the
defendant at the police station.
Defendant’s apprehension began when Captain Houston and another officer
responded to an anonymous tip. The tip provided the name, “Johnny,” and his
description as being the person responsible for killing Walker, a description of the
defendant’s car and license plate number, and where the defendant could be found.
The officers approached the area and identified the car; however, it was unoccupied.
The defendant walked out of a nearby building, and police officers approached him.
One officer asked the defendant his name and the defendant answered, “Johnny.”
They noticed a bulge in his shirt consistent with a gun and asked him to raise his
hands. The defendant hesitated, and the officers pulled their weapons. The
defendant acceded and while removing two weapons from the defendant, Capt.
Houston asked, “Which one of these guns did you use to shoot Bud with?” The
defendant responded, “the smaller one.” Immediately thereafter, the officers placed
the defendant under formal arrest.
The officers handcuffed the defendant, put him in the back seat of the squad
car, and called for a back-up unit. The defendant told Capt. Houston he had not
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been advised of his rights. Capt. Houston informed the defendant that he would not
be questioned at that time; nevertheless, he advised him of his Miranda rights.
While waiting for the other officer to interview witnesses at the scene, the defendant
volunteered that there were some notes at his house that he wanted the officers to
get. He also described where they could find the shell casing from the pistol used to
shoot Walker. The officers obtained a consent to search form, signed by the
defendant, to search the area where defendant stated these items could be found.
After retrieving the items, the officers proceeded to the police station. Some three
hours later, the defendant was again advised of his rights, signed a waiver, and gave
a full written admission detailing the killing of Walker.
III. Analysis of Initial Statement
Considering the factors set forth in Anderson and that the defendant was
obviously deprived of his freedom of movement when the two officers with drawn
weapons searched him and found two pistols, we are constrained to conclude that
the defendant was “in custody” when he was asked which pistol he used to shoot the
victim. That statement was erroneously admitted; however, we find its admission
harmless in light of his written statement. Tenn. R. App. P. 36(b).
IV. Fruit of the Poisonous Tree
Defendant contends, however, that the notes seized pursuant to the consent
to search and the written admission were “fruit of the poisonous tree” and
inadmissible. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d
824 (1979).
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An illegal, unwarned confession extracted from a defendant creates a
rebuttable presumption that a subsequent confession, even if preceded by proper
Miranda warnings, is tainted by the initial illegality. State v. Smith, 834 S.W.2d 915,
919 (Tenn. 1992). That presumption may be overcome by the prosecution, however,
if the state can establish that the subsequent confession was given freely and
voluntarily and that the constitutional right to be free from self-incrimination was not
waived due solely to the psychological pressures resulting from giving the previous
statement. Id. at 921.
Smith listed nine (9) factors to be utilized in determining whether the initial,
illegal conduct prevents the accused from subsequently (1) making a free and
informed choice to waive the state constitutional right not to provide evidence against
one’s self, and (2) voluntarily confessing his involvement in the crime. Id. at 919.
Those factors are:
1. The use of coercive tactics to obtain the initial,
illegal confession and the causal connection between
the illegal conduct and the challenged, subsequent
confession;
2. The temporal proximity of the prior and subsequent
confessions;
3. The reading and explanation of Miranda rights to the
defendant before the subsequent confession;
4. The circumstances occurring after the arrest and
continuing up until the making of the subsequent confession
including, but not limited to, the length of the detention and
the deprivation of food, rest, and bathroom facilities;
5. The coerciveness of the atmosphere in which any
questioning took place including, but not limited to, the
place where the questioning occurred, the identity of
the interrogators, the form of the questions, and the
repeated or prolonged nature of the questioning;
6. The presence of intervening factors including, but not
limited to, consultations with counsel or family members,
or the opportunity to consult with counsel, if desired;
7. The psychological effect of having already confessed,
and whether the defendant was advised that the prior
confession may not be admissible at trial;
8. Whether the defendant initiated the conversation that
led to the subsequent confession; and
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9. The defendant's sobriety, education, intelligence level,
and experience with the law, as such factors relate to the
defendant's ability to understand the administered Miranda
rights.
Id. at 919-920.
After examining these factors, we conclude the consent to search and the
written admission were preceded by Miranda warnings and were not tainted by the
initial Miranda-poor question. The state has clearly overcome the rebuttable
presumption.
Accordingly, the evidence resulting from the consent search and the written
confession were properly introduced. This issue is without merit.
SUFFICIENCY OF THE EVIDENCE
The defendant argues the evidence is insufficient to support the conviction of
voluntary manslaughter. Specifically, the defendant contends that he should have
been acquitted on the theory of self-defense.
Where sufficiency of the evidence is challenged, the relevant question for an
appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R. App.
P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d
560, 576 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn.1996). The weight
and credibility of the witnesses' testimony are matters entrusted exclusively to the
jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984); State
v. Brewer, 932 S.W.2d 1, 19 (Tenn.Crim.App.1996).
Voluntary manslaughter is the intentional or knowing killing of another in a
state of passion produced by adequate provocation sufficient to lead a reasonable
person to act in an irrational manner. Tenn. Code Ann. § 39-13-211.
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The defendant was indicted on the charge of second degree murder and the
jury returned a conviction on the lesser offense of voluntary manslaughter.
Defendant contends he shot the victim in response to a threat of being robbed with a
knife. No knife was ever found, however, and the defendant admitted to never
having seen a knife. The only thing found in the victim’s hands were car keys. The
jury could have rationally concluded that the unarmed victim was attempting to get
defendant’s cocaine producing provocation in the defendant, but that the defendant’s
action in shooting the victim was clearly excessive and unnecessary for his self-
defense.
It was within the prerogative of the jury to reject the claim of self defense. It is
well settled that whether an individual acted in self-defense is a factual determination
to be made by the jury as the sole trier of fact. State v. Ivy, 868 S.W.2d 724, 727
(Tenn. Crim. App. 1993). The evidence was sufficient for a rational juror to conclude
beyond a reasonable doubt that the defendant was guilty of voluntary manslaughter.
Accordingly, this issue is without merit.
DENIAL OF PROBATION
The defendant argues that the trial court improperly denied probation. A
defendant is eligible for probation if the sentence received by the defendant is eight
years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a).
A defendant with a total effective sentence in excess of eight years is eligible for
probation if the individual sentences imposed for the convictions fall within the
probation eligibility requirements. State v. Langston, 708 S.W.2d 830, 832-833
(Tenn. 1986).
An especially mitigated or standard offender convicted of a Class C, D or E
felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court
must presume that a defendant sentenced to eight years or less and who is not an
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offender for whom incarceration is a priority is subject to alternative sentencing.
State v. Byrd, 861 S.W.2d 377, 379-380 (Tenn. Crim. App. 1993). It is further
presumed that a sentence other than incarceration would result in successful
rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.
However, although a defendant may be presumed to be a favorable candidate for
alternative sentencing, the defendant has the burden of establishing suitability for
total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see
Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically
considered, “the defendant is not automatically entitled to probation as a matter of
law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State v.
Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should consider
the circumstances of the offense, the defendant's criminal record, the defendant’s
social history and present condition, the need for deterrence, and the best interest of
the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);
State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Black, 924
S.W.2d 912, 917 (Tenn. Crim. App. 1995). The defendant's lack of credibility is also
an appropriate consideration and reflects on a defendant's
potential for rehabilitation. State v. Chestnut, 643 S.W.2d 343, 353 (Tenn. Crim.
App. 1982).
The defendant was convicted of voluntary manslaughter, a Class C felony,
and sentenced as a standard offender to four (4) years. Accordingly, the defendant
is presumed to be a favorable candidate for probation. Tenn. Code Ann. § 40-35-
303 (a), (b). Proof at the sentencing hearing revealed the defendant had a prior
conviction for marijuana possession, and that he was addicted to “crack” cocaine and
alcohol. The court noted the defendant’s failure to involve the police and his kill or
be killed attitude as “unbelievable behavior.” The trial court properly found that the
defendant’s criminal and social history, the circumstances of the crime, and his poor
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amenability to rehabilitation made him unsuitable for probation. We agree. This
issue is without merit.
The judgment of the trial court is AFFIRMED.
________________________
JOE G. RILEY, JUDGE
CONCUR:
__________________________
PAUL G. SUMMERS, JUDGE
__________________________
DAVID H. WELLES, JUDGE
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9611-CR-00428
Appellee, )
) SHELBY COUNTY No. 96-00668
vs. )
)
) (Voluntary Manslaughter)
)
JOHNNY R. GOODE, )
) AFFIRMED
Appellant. )
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JUDGMENT
Came the appellant, Johnny R. Goode, by counsel, and the state, by the
Attorney General, and this cause was heard on the record on appeal from the
Criminal Court of Shelby County; and upon consideration thereof, this court is of the
opinion that there is no reversible error.
It is, therefore, ordered and adjudged that the judgment of the trial court is
AFFIRMED, and the case is remanded to the Criminal Court of Shelby County for
execution of the judgment of that court and for collection of costs accrued below.
In the event the appellant indicates an intention to file an application for
permission to appeal to the Supreme Court, he may be admitted to bail in the
additional amount of $10,000 for a total bond amount of $25,000 with sufficient
sureties to be approved by the clerk of the trial court pending the filing and
disposition of said application. In default of such bond, he shall be remanded to the
custody of the Sheriff of Shelby County.
Costs of appeal are taxed to the appellant, Johnny R. Goode, for which let
execution issue.
PER CURIAM
Joe G. Riley, Judge
Paul G. Summers, Judge
David H. Welles, Judge
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