State of Tennessee v. Telly M. Slayon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-CR-00013 FILED ) October 2, 1997 Appellee, ) ) Cecil Crowson, Jr. ) SHELBY COUNTY Appellate C ourt Clerk VS. ) ) HON. JOHN P. COLTON, JR. TELLY M. SLAYON, ) JUDGE ) Appellant. ) (First Degree Murder)

FOR THE APPELLANT: FOR THE APPELLEE:

WALKER GW INN CHARLES W. BURSON Assistant Public Defender Attorney General and Reporter 201 Poplar Suite 2-01 Memphis, TN 38103 MICHAEL J. FAHEY, II Assistant Attorney General DENIELLE V. YOUNG Legal Assistant 450 James Robertson Parkway Nashville, TN 37243

WILLIAM L. GIBBONS District Attorney General

JERRY KITCHEN Assistant District Attorney 201 Poplar, Third Floor Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

On February 10, 1995, Appellant T elly Slayton was fou nd guilty by a Shelby County Criminal Court jury of murd er in the perpe tration o f robbe ry in violation of Tennessee Code Annotated Section 39-1 3-202(2) (Su pp. 1996). The trial court ordered a sentence of life imprisonment. On appeal, Appellant raises three issues for review: (1) whether the evidence presented at trial was sufficient as a matter of law to s ustain the co nviction ; (2) wh ether th e trial co urt erre d in overruling Appe llant’s m otion to supp ress h is statement given to police officers; and (3) whether the trial court erred in admitting, over Appellant’s objection, a photograph of the victim taken while the victim was alive.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

Factual Background

On the afternoon of Aug ust 6, 1 992, th e victim , Dan ny W hite, an d his friend, Tom Smith, entered the B & B Gro cery in S helby C ounty to play p ool in the groce ry store ’s poo lroom locate d in the back of the s tore. O n his way to the poolroom, the victim stoppe d at the cash re gister and purchased some cigarettes. The cash register attendant noticed that the victim had at least two hundred dollars with him. W hile the victim and Mr. Smith were in the poolroom, Appellant was seen entering the poolroom . Minutes later while Mr. Smith was in the bathroom, he ove rhear d a de man d for m oney, the victim ’s refusal, and a gunsh ot. Upon exiting the bathroom, Mr. Smith found his friend dead. The victim had been shot in the chest with a .38 caliber gun. Immediately after the shooting, Appellant

-2-was seen w earing a ski mas k running out of the s tore. On ly sixty-five cents in chang e was fo und on the victim’s b ody.

On August 7, 1995, Appellant, a juvenile and his mother agreed to go with the police to the police homicide department for questioning. Upon arriving at the police station, Ap pellant an d his mo ther were taken to an interview room. Appellant was advised of his Miranda rights and signed a waiver of rights form. At some point during the questioning, Appellant’s mother was asked to leave, and she left voluntarily. After questioning, Appellant indicated that he wanted to make a statement. Before giving his statement, Appellant’s mother came back into the interview room and the police investigators again read Appellant his rights. Appellant then adm itted to k illing the victim b ecau se the victim had ro bbed him the day before the incident. The investigating officer testified that no threats or intimidation was used to obtain Appellant’s statement. After a hearing on Appe llant’s motion to suppress, the trial court found that Appellant’s confession was voluntary and admissible.

I. Sufficiency of the Evidence

Appellant first claims that the evidence is insufficient, as a matter of law, to sustain th e convictio n for mu rder in the p erpetration of robbery. When an appeal challe nges the su fficienc y of the e videnc e, the s tanda rd of rev iew is whether, after vie wing th e evide nce in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reason able do ubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v. Evans, 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740 (1994); T.R.A P. 13(e). On appeal, the State is entitled to the strongest legitimate view of the e vidence and all reasonable or legitimate inferences which may be

-3-drawn therefrom . State v. Cabbage, 571 S .W .2d 83 2, 835 (Ten n. 197 8). Th is Court will not reweigh the evidence, re-evaluate the evidence, or su bstitute its evidentiary inferences for those reached by the jury. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). As the Supreme Court of Tennessee said in Bolin v. State:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrum entality of justic e to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evide nce ca nnot be reproduced with a written reco rd in this Co urt.

405 S.W .2d 768 (1966). T hus, a jury v erdict is en titled to grea t weight.

Once approved by the trial court, a jury verdict accredits the witnesses presented by the State and resolves all conflicts in favor of the State. State v. Hatchett, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842 (Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony, and the reconciliation of conflicts in the proof are matters entrusted exclus ively to the jury as trier of fact. State v. Sheffie ld, 676 S.W .2d 542, 547 (Tenn. 198 4). A jury’s guilty verdict removes the presumption of innocence enjoyed by the defendant at trial and raise s a presu mption of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82). The defendant then bears the burden of over com ing this presu mptio n of guilt on ap peal. State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

First-degree murder includ es “[a] killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code Ann. § 39-13-2 02(2). Ap pellant argues tha t the evid ence subm itted at tria l is

-4-insufficient to support his conviction because there was no “clear” evidence that he intended to rob the victim. Counsel for Appellant suggests the possibility that the victim lost the money he brought into the poolroom while gambling. Appellant also argues that Mr. Sm ith’s testimony that he overheard someone demand money from the victim should not be believed because Mr. Smith was smoking crack in the b athroo m wh en he supp osed ly overheard the demand. Furthermore, Appellant claims that no one identified the voices of either the person making the alleged demand for money or the victim’s voice.

W hile Appellant’s speculation about what could have happened to the victim’s money is possible, the jury appare ntly believed App ellant took the m oney. In addition, the credib ility of witnesses is entirely within the provinc e of the jury. The fact that Mr. Smith was high on cocaine when he heard the demand for money was considered by the jury which nevertheless found Smith credible. Sheff ield, 676 S.W.2d at 547. Finally, Appellant is incorrect in his assertion that no one iden tified the voice of the victim . Mr. Smith testified that wh ile he w as in the bathroom he heard the victim refuse a demand for money. Although no one identified Appellant’s voice, Appellant was positively identified entering the poolroom minutes be fore the fatal shot wa s fired and imm ediately thereafter. Appellant admitted shooting the victim because the victim had allegedly robbed Appellant the day before the incident. The victim was seen with at le ast two hundred dollars before the shooting, and only sixty-five cents was found on the victim after the shooting. Clearly, the evidence was sufficient as a matter of law to support Appellant’s conviction.

II. Denial of Appellant’s Motion to Suppress

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Appellant next argues that the trial jud ge erred in denying his motio n to suppress his statement given to the police. Appellant claims that the statement was not given voluntarily because he wa s only sixteen at the time of the statem ent, the police excluded his mother from questioning, and the police threatened him with the electric chair. The question before us is whether, under the totality of the circumstances, Appellant’s confession was the resu lt of a knowing and intelligent waiver of constitu tional rights. State v. Gordan, 642 S.W.2d 742, 744 (Tenn. Crim. App. 1982). In making that determination, we are mindful that the trial court’s findings on a motion to su ppress are c onclusive on appeal unless th e eviden ce prep ondera tes aga inst those findings. Braziel v. State, 529 S.W .2d 501 , 506 (T enn. C rim. App . 1975).

In the instant case, the record reveals that Appellant was informed of his Miranda rights befo re being question ed. See Miranda v. Arizona, 86 S.Ct. 1602 (1966). After being informed of his Miranda rights, he signed a waiver o f rights form. Appellant was asked if he understood these rights to which he responded affirmatively. Before Appellant gave h is state men t adm itting to k illing the victim he was again explained his Miranda rights. While Appellant claims that the investigating officer threatened him with the electric chair, the investigating officer denied ever making such a comment. Although Appellant’s mother was not present throughout questioning, the volun tarines s and adm issibility o f a juven ile’s confession is not dep enden t upon the presen ce of his p arents or an attorney at interrogation when full Miranda warnings have been given and understood. Braziel, 529 S.W .2d at 506 . We find nothing in the record that preponderates again st the trial court’s findings that Appellant’s statement was knowingly and voluntarily entered.

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III. Admiss ibility of Pho tograp h of the Victim

Next Appellant argues that the trial judge erred in allowing the State to introduce a photograph of the vic tim taken while he was alive. The picture of the victim depicts the victim in his military uniform. Appellant contends that the photo graph was n ot relev ant an d was overly p rejudic ial.

The admissibility of photographs lies within the sound discretion of the trial judge and will not be overturned on appeal except upon a clear showing of an abuse of discretion . State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Our courts have held that pictures of a homicide victim should not be admitted at trial because they are o f tenuou s relevan cy. See, e.g., State v. Dicks, 615 S.W.2d 126, 128 (T enn. 19 81); State v. Strouth, 620 S.W .2d 467, 472 (Tenn. 198 1); State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App. 1985). As the court said in State v. Dicks, “it would have been better had the ‘before’ picture of [the victim] been e xcluded since it adde d little or nothing to the sum total of knowledge of the jury.” 615 S.W.2d at 128.

Here, the relevance of the photograph of the victim taken while he was alive was minimal. However, in view of the overwhelming evidence that Appellant shot the victim, admission of this photograph was at most harmless error. Tenn. R. App. P. 36 (b).

W e conc lude th at the e videnc e was sufficie nt as a matte r of law to susta in Appe llant’s conviction , that App ellant’s state ment to the police admitting to the shooting was vo luntary , and th at the a dmis sion of the photograph taken of the victim while he was alive did not constitute prejudicial error. The judgment of the trial court is therefore affirmed.

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____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

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