State v. Callahan

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 24, 1997
• Docket: 03C01-9507-CC-00203
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED DECEMB ER SESSION, 1996 April 24, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9507-CC-00203 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK NATH AN ALL EN C ALLAH AN,) JUDGE ) Appe llant. ) (First Degree M urder)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

STEPHEN M. WALLACE CHARLES W. BURSON District Public Defender Attorney General and Reporter

DARIAN B. TAYLOR Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

H. GREELEY W ELLS District Attorney General

NANCY S. HARR Assistant District Attorney General Blountville, TN 37617

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of

Appe llate Proced ure. The Defendant, Nathan Allen Callahan, was convicted by

a Sullivan County jury of one count of first-degree murder and one count of

second-d egree m urder, respec tively, for the shooting deaths of his mother and

younger sister. The jury set punishment for the first-degree murder conviction at

life imprisonment and fined the Defendant $47,000.0 0 for the count of second-

degree murder. The trial court ordered twenty-two years imprisonment on the

conviction for second-degree murder to be served concu rrently with the life

sentence. The Defendant appeals his convictions and raises the following

issues: (1) That the evidence is insufficient to support the conviction for murder

in the first degree; (2) that the trial court e rred in denying the Defendant’s special

jury request; (3) that the trial cou rt erred in failing to suppress his confession; and

(4) that the trial court erred by not suspending the fine imposed by the jury. After

careful review of the issues and the reco rd, we affirm the judgment of the trial

court.

On March 30, 1994, Gale Callahan and her thirteen-year-old daug hter,

Holly, were shot to death in the garage of their home. At the time of the murders,

the Defendant had just turned fifteen. He lived with his parents, Gale and Glen

Callahan, and his younger sister, Holly, in a suburban neighborhood in the Indian

Hills comm unity of Sullivan Cou nty. At a round age fo urteen , the D efend ant’s

behavior had changed; he had new friends, his grades began to drop, he stopped

doing homework, and he started skipping classes. In the fall of 1993, after

-2- becoming suspicious that his son might be using drugs, Glen Callahan installed

a recorder to tape his son’s telepho ne calls. On N ew Year’s E ve, 1993, Mr.

Callahan recorded the Defendant talking with a friend about using marijuana. He

also talked about sneaking out of the house and driving the new Trans-Am

Pontiac his grandfathe r had bought for him. Mr. Callahan confronted the

Defen dant, who denied that this was true and refused to reveal his drug source.

Mr. Callahan became enra ged and s mashe d the Defen dant’s electric guitar,

anothe r gift from his grandfa ther.

Mr. Callahan stayed that night with the Defendant who lived in the

downstairs area of the house, fearful of how he might react. The next morning,

the Defendant went into the bathroom to take a shower, but actually crawled out

the window. After discovering he was missing, his parents searched for him and

later found him lying under the basement steps. Mr. Callahan sold the

Defe ndan t’s car, took him for random drug tests, and became very restrictive of

his activities and his acce ss to mo ney. He had an outpatien t menta l health

evaluation in January which revealed no significant mental disturbance, but did

indicate substance abuse. The recommended treatment was outpatient

counseling, with m ore ex tensive treatm ent po ssible if the drug screens continued

to appear positive. Subsequent drug screens continued to test positive for

marijuana and the Defendant’s parents monitored his activities at school. They

bought a new black Chevrolet Camaro and promised the Defe ndan t a learn er’s

perm it to drive if two drugs screens came back negative. The car keys were kept

locked up.

-3- The situation remained somewhat the same during the month before the

murders. Mr. Ca llahan noted at trial tha t the D efend ant rar ely expressed emotion

and that he had never seen him cry. The Defendant never expressed anger,

even after his gu itar was smashed, his car was sold, and he was restricted.

Howeve r, two days before the killings, the Defendant asked his sister, in the

presence of her friend, “what wo uld you do if I killed my M om a nd Da d?” H is

sister Holly re plied: “N athan , shut u p. Tha t’s not nic e to sa y. You s hould n’t do

that, I would hate you forever if you did.”

On the day of the murders, the Defendant had lengthy telephone

conversations with two of his friends. He initiated a discussion about whether he

should kill his parents. U nbek nown st to the Defe ndan t, these teleph one c alls

were tape-recorded. They revealed the animosity he harbored toward his fam ily

and the planning and execution of the m urders. The Defendant devised the plan

to kill his mother and sister after they returned home from a sho pping trip. His

father was away on a business trip and was expected to be back later that

evening. The Defendant retrieved a 20 gauge shotgun, a prese nt from his

grandfather that was stored under his parents bed. He located a box of

ammunition, loaded the chamber with four shells and placed the gun outside

behind a fenc e nea r the ga rage. D uring th is time , the D efend ant rem ained in

phone contact with Jam es Saylor, who participated actively and made

suggestions.

When the Defendant saw that his mother and sister had returned, he set

the telephone down, still off the hook, and went outside. He picked up the

shotgun and hid be hind h is Cam aro, tha t was p arked in the driveway. His mother

-4- and sister opened the garage door and walked inside toward a door lea ding into

the house. As they neared the door, the Defe ndan t walke d into th e gara ge. His

sister, Holly, tu rned a round and h e sho t her in th e lowe r front. H e then shot h is

mother in the sho ulder. He walked within a few feet of h is sister and s hot he r in

the head , then re loade d the g un an d sho t his m other in the bu ttocks , in her back,

and in her head. The brains of both victims were blown from their heads.

The Defendant left the garage and picked up the telephone, telling James

Saylor that he had killed his mother and sister. He took m oney a nd his moth er’s

cellular phone and put the shotgun and a box of shells in the Camaro. Saylor

became conc erned and to ld his m other, T errell Saylor, what the Defendant had

done. Terre ll Saylo r called the Defe ndan t, then a llowed her so n Jam es to ta lk

with him w hile still listening on the line. The Defendant again stated that he had

killed his mother and sister. Fearful that he would come to their home, T errell

Saylor called 911 and reported the incident. The Defe ndant left the house,

driving the black Camaro.

Memb ers of the Sullivan County Sheriff’s Department were dispatched to

the Callahan residence. Noticing that the garage doo r was open , the officers

went inside and discovered the bodies of Gale and Holly Callahan. The officers

also did a protective sweep of the home, noticing a number of bloody fo otprints

both in the garage and in some areas of the house. Lieutenant Reece Christian

arrived on the scene to investigate. A number of shell casings were observed in

the garage. Gale Callahan’s purse was lying in a laundry basket, where the

Defendant had left it after taking some cash.

-5- Meanwhile, the De fenda nt drov e to the Fort H enry M all to look for Jonathan

Mann, another friend. He approached Andrew Carter, a school classmate, in a

video arcade and a nnou nced that he had ju st killed h is mother and sister. The

Defendant pulled the car keys out of his pocket and asked “you believe me now?”

The Defen dant also stated tha t he nee ded to find somewhere to hide. He left the

mall and went to a convenience store, the Greenwood Market. While he was

using the pay phone, someone at the market called 911 and repo rted his

presence. He then left and drove to the B&C Market, another convenience store.

Charles Addison, a local resident, saw the Defendant at the Greenwood Market

and followed him to the B&C. H e observed the Defend ant on the pa y phone. Mr.

Addison then rep orted the Defendan t’s whereabouts. Soon thereafter, Lieutenant

Christian and two other officers arrested him at the B& C Marke t. The officers

saw a shotgun and a box of shells through the hatchback window. The

Defen dant wa s transpo rted to the S heriff’s De partme nt.

There, Glen Callahan, who had returned from his busine ss trip, gave

perm ission to question the Defendant. After being advised of his rights, the

Defendant gave a lengthy confession. Lieutenant Christian wrote out the

statement as the Defendant made the oral confession. The Defendant reviewed

and signed th e document. A urine dru g scree n was c onduc ted and the resu lts

were negative. The Defenda nt was housed in the Upper East Tennessee

Regional Juvenile Detention Center until he was transferred to the Lakesho re

Mental Institute for an evaluation. He was determined to be competent to stand

trial. He was returned to the Detention Center. On July 7, 1994, the Defendant

was transferre d to the S ullivan Co unty Criminal Court for prosec ution as a n adult.

-6- The Defendant was indicted on two counts of first-degree murder for the

shotgun deaths of Ga le and Holly Callahan. He was transferred to the Sullivan

Coun ty Jail, a se cure fa cility, and was h ouse d sep arately from th e adu lt

population. The Defendant was tried on March 13-17, 1995, and was convicted

on a jury verdict of one count of first-degree murder and one count of second-

degree murder. The jury imposed a sentence of life imprisonm ent for the firs t-

degree murder and a $47,000.00 fine for the s econd -degree murde r. A

sentencing hearing was held on March 18, 1995, after which the trial judge

imposed a sentence of twenty-two years for the charge of second-degree murder

to be served concurrently with the life sentence. Th e Def enda nt con tests h is

convictions and the fine set by the jury.

I. Sufficiency of the Evidence

In his first issue, the Defendant argues that the evidence was insufficient

to support the verdict of murder in the first degree for the death of Gale Callahan.

He contends that the State failed to prove the element of deliberation because

he was in an em otional sta te when the killings o ccurred .

When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light m ost favo rable

to the pro secu tion, any rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754

-7- S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalua te the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitima te

view of the evidenc e and a ll inference s therefro m. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presu mption 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); Grace, 493

S.W.2d at 476.

The Defendant claims that the evidence was insufficient to prove

deliberation as required for first-degree murder. The trial judge instructed the

jury under Tennessee Code Annotated section 39-13-202(a)(1), which states, "(a)

First degree murder is: (1) An intentional, premeditated and deliberate killing of

anothe r...." Tenn . Code Ann. § 39-13-202 (a)(1) (199 1). A " '[p]rem editated a ct'

means one done after the exercise of reflection and judgment. Premeditation

may include instances of homicide committed by poison or by lying in w ait."

Tenn.Code Ann. § 39-13-201(b)(2) (1991). A "’[d]eliberate act' means one

perform ed with a c ool purp ose." Te nn. Co de Ann . § 39-13 -201(b)( 1) (1991 ).

The Tennessee Supreme Court has addressed the issues of premeditation

and deliberation in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), and in State

-8- v. West, 844 S.W.2d 144 (Tenn.1992). In Brown, the court emphasized that

deliberation and premed itation are two separate elements o f first-degree murd er.

Deliberation, the court said, "requires some period of reflection, during which the

mind is 'free from the influen ce of excite ment, or passion .' " Brown, 836 S.W.2d

at 540. Thus, deliberation requires “the formation of a cool, dispassionate intent

to kill.” West, 844 S.W.2d at 147. Premeditation doe s not re quire a spec ific

amount of time to pass between the formatio n of the ide a and th e act. Brown, 836

S.W.2d at 540. H oweve r, the intent n ecessary to commit first-degree murder

may not be formed in an instant because of the additional requirement of

deliberation. Id. at 543. The court also noted that repeated blows or shots,

alone, were not enough to prove first-degree murder. Id.; see also State v.

Darn ell, 905 S.W .2d 953, 961 -62 (Tenn . Crim. App. 19 95).

The Defendant contends that the act of shooting his mother was not free

from passion such that the deliberation was formed to support his conviction.

“Passion” has been defined as “any of the h uman e motions kn own as an ger,

rage, sudden re sentmen t or terror which renders the mind incapable of cool

reflection.” State v. Tune, 872 S.W.2d 922, 926 (Tenn. Crim. App. 1993) (quoting

State v. Bullington, 532 S.W .2d 556, 560 (Tenn. 1976 )). Yet, the presence of

agitation or anger does not necessarily preclude a finding that the act was

performed with the neces sary delibe ration. See State v. Gentry, 881 S.W.2d 1,

5 (Tenn. C rim. App. 199 3).

The Defendant points to the tape recording of his telephone conversations

just prior to the m urders. H e asse rts that his de mean or dem onstrate s that he

was not free from the passion of the moment. The tape recording was played for

-9- the jury at trial. The Defendant’s father and grandfather testified that the tape

recorded conversation did not sound like his normal voice and that he sounded

agitated. The Defendant highlights excerpts of the tape in which he forms the

intent to kill. Howe ver, he claim s that it was done in a n excited s tate fueled by

his friend, James Saylor’s encouragement. The Defendant does make some

statem ents such as “Ah shit, I’m going to be so goddamn nervous trying to drive

(after he murders the victims)” and that it would be “damn fun” or that “[s]on of a

bitch, I’m going to try it. You wan t me to call you ba ck?” At a later point in the

conversation, they discuss Saylor coming over to the Defendant’s house after he

does the killings, yet Saylor conditions it by sa ying “I though t you were going to

do that first” a nd “if you ’ll do it, I’ll come ove r.” The Defendant voices some

agitation by sayin g “I can ’t believe what the fu ck we’re doing.” He asserts that the

anxiety he was experiencing just prior to the murders had not subsided such that

he was free from passion.

Yet, there is evidence that the Defendant coolly calculated a plan, that he

implemented the plan, and that he considered the consequences before he

acted. In his confession, he admitted to thinking about killing his parents two

weeks before the murders and he talked to others about killing his parents two

days be fore the m urders. In his confe ssion, he states:

I told my sister that I was thinking about killing our parents to see what Holly thought about it. Holly did not believe me an d told me not to do it. She did not think I was serious but I was definitely serious about killing my parents. . . . [I] called Jonathan at his home and talked with him. W e talked about killing my sister a nd my mother and he did not believe me. I told him I did not like the way my sister and my mother were treating me. . . . I have been thinking about killing my father, mother and sister for about 2 weeks . Becaus e they wo uld neve r let me go out and do anyth ing with my friends.

-10- From the recorded telephone conversations, the Defendant considered

that if he killed his family “we’re going to need some place to stay.” Also, he plans

the event: “They just w ent out to eat. W hy don’t you come over. I’m going to

shoot them as soon as they walk in the do or. Come up behind them, and shoot

them in the garage so I don’t get blood all over the house.” “You know where my

car is at, out back there, I’ve got the gun laying down there.” When the

Defendant hears that two other boys are at Saylor’s house he asks: “Does he

know what I’m going to do? Hey, you better not tell them, just in case.” He states

that “if I get caug ht. I’ll go to jail. . . . If I get pulled over, I’m gonna have to shoot

the goddamn cop. I can’t outrun his fuckin’ ass ‘cause they’ll have roadblocks.

. . . I could get myself in a shit load of trouble right now. How many years do you

think I’d get? Life?” “We’re going to pawn all my Mom ’s jewelry ou t of state.”

Finally, when Saylor suggests giving the Defendant’s mother Valium in her food,

the Defendant responds:

Defendant: No, I’m shooting her ass, bitch. Saylor: Poison he r. That would b e the best wa y. Defen dant: I have to kill her, b itch, wh at if she wakes up, what the fuck am I go nna say? Saylor: She ain ’t gonna w ake up if you poiso n her righ t. Defen dant: I want to leave tonight, you sorry bitch. I’m gonna shoot her, shut the fuck up, I’m shooting her.

Dr. Nancy Lantho rn, a clinical p sycholo gist, testified for th e Defe ndant.

She had evaluated him and listened to the audio tape of the telephone

conversations. She concluded that the Defe ndan t was s ocially a nd em otiona lly

immature. She related tha t his cognitive develop ment had not reached a point

where he cou ld effectively e valuate and assess the consequences of his actions

to support a finding that he deliberated about the killings. Essentially, she stated

-11- that “he was not reflecting. He was not planning rea listically at that time” (before

the killings).

The State presented Dr. Kevin Blanton in rebuttal, who evaluated the

Defendant at Lak esho re Me ntal He alth Ins titute an d had listene d to the audio

tape. He conclud ed that the De fendant had enough m aturity in his ego

development to emp athize with others, or to conside r future actions, or to take

respon sibility for beha vior.” He opined that the Defendant had weighed matters,

planned the killings and reflected upon the consequences such that he wa s able

to deliberate prior to the act. Although admitting that the Defendant sounded

anxious and nervous or nervous and elated, he asse rted tha t the D efend ant’s

speech did not suggest that he was consumed by emotion. Dr. Kris House r, a

psychia trist, also testified that the D efendant appeared to have considered the

“wisdom of his decision to kill” and that he considere d the possible n egative

consequences. Dr. House r stated that the De fendant was not anxious and

nervous such tha t his judgm ent was clouded .

After a careful evaluation of the record, we conclude that the evidence was

sufficient to support a conviction for first-d egree murd er for th e dea th of G ale

Callahan. It appears that the jury could have found beyond a reasonable doubt

that the Defendant possessed the ability to deliberate about his plan to murder

his mother and that he weighed the consequences of his actions. Although he

may have been anxious or elated about perpetrating this crime, this does not

nece ssarily mean that his emotions clouded his ability to deliberate. A “cool

purpose” is not synonymous with a complete absence of emo tion. It m erely

requires that the act be done without passion or provocation and free from the

-12- influence of excitem ent. See State v. Farmer, 927 S.W.2d 582, 589 (Tenn. Crim.

App. 1996). Here, in a lengthy confession, the Defendant admitted to thinking

about killing his parents two weeks before the murders. He talked about

murd ering h is parents two days before the killings. He talked with a friend on

the telephone while he planned and im plem ented the m urder s. He s hot his

mother and sister from behind, without warning and without provocation in such

a manner as to insure their deaths.

There is no merit to this issue.

II.

In his second issue, the Defendant contends that the trial court erred by

denying his spec ial reques t for a jury instruction. At trial, the Defendant

requested that the trial judge charge the jury the following from State v. Brown,

836 S.W .2d 530 (Te nn. 1992).

The fact that rep eated s hots we re inflicted up on the victim is not sufficient, by itself, to establish first-degree murde r. Repea ted sho ts can be de livered with no desig n or refle ction. O nly if such shots a re inflicted as the result of premeditation or deliberation can they be said to prove first-degre e murde r.

Id. at 541. T he trial cou rt denied the requ est on the ground that the instruction

would amount to an improper comment on the evidence because it suggests that

premeditation or deliberation could be inferred from repeated shots. Without the

instruction, the jury would decide whether repeated shots would support a finding

of first-degree mu rder.

-13- The Defen dant claim s, howe ver, that the State emphasized the fact that

repeated shots were fired through testimony by the medical examiner regarding

the wounds on the victims and the number of shotgun shells found at the scene.

He argues that the omission of the special jury instruction deprived him of having

every issue of fact submitted to the jury with proper instructions.

A defendant is entitled to a complete and correct charge of the law. State

v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A trial judge should properly instruct

the jury on the law governing issu es rais ed by th e evide nce in troduc ed at tria l.

State v. McAfee, 737 S.W .2d 304 , 308 (T enn. C rim. App .1987). If a trial judge

gives instructions that correc tly, fully, an d fairly se t forth the applic able la w, it is

not error to refuse to give a sp ecial requ ested ins truction. State v. Bohanan, 745

S.W.2d 892, 897 (Tenn.Crim.App.1987). Upon reviewing the entire charge we

may only invalida te it if, when rea d as a w hole, it fails to fairly submit the legal

issues or mislea ds the jury a s to the ap plicable law . In re Estate of Elam, 738

S.W .2d 169, 174 (Tenn.19 87).

Special instructions shou ld be given if "fundam ental" to the case. W here

the charge is one tha t is "fundam ental in na ture" and "essen tial to a fair trial,"

failure to give the c harge m ay result in e rror. State v. Phipps, 883 S.W.2d 138,

142 (Tenn . Crim. A pp. 199 4); Teel, 793 S.W .2d at 249 ; Souey v. State, 81

Tenn. (13 L ea) 472, 480 (1884).

Here, the trial court gave instruction s to the jury in accord ance with the

Tennessee Pattern Jury Instructions for first-degree murder as well as the

holdings in Brown and West. See State v. Brown, 836 S.W .2d 530 (Te nn. 1992);

-14- State v. West, 844 S.W.2d 144 (Tenn.1992); T.P.I.-Crim. 7.01 (3 d. ed.). T his

included sections defining the elements of the crime and both premeditation and

deliberation. This was a complete instruction on the law of first-degree murder

as to the required elements to prove th e crime beyond a reaso nable d oubt.

Cons idering the facts in this ca se, the ins truction tha t was give n was s ufficient.

A special instruction must be fundamental to the case be fore the failure to

issue it becomes error. Unlike Brown, repeated sho ts were not integral to proving

the case at bar. In Brown, the Defendant beat his three-year-old son to death.

Brown, 836 S.W.2d at 534. In order to support a conviction for first-degree

murder, the State relied solely on circumstantial evidence that the victim had

received repeate d blows . Id. at 543. Our supreme court held that “repeate d

blows” alone could not support a conviction. The proof in this case, ho wever,

does not rely on the fact that the Defendant inflicted repeated shots. There was

amp le evidence through his confession, the taped telephone calls, and the

testimony of witnesses tha t would sustain a finding that the killings were

premeditated and deliberate. The necessity of a special instruction must be

determined by “the nature of the proceedings and the evidence introduced during

trial.” Teel, 793 S.W.2d at 249; see McAfee, 737 S.W.2d at 308. Thus, the issue

of repeated shots was not fundamental to the proof of this case.

We cannot conclude that the failure of the trial judge to issue the special

jury instructions prevented the Defendant from receiving a fair trial. We also

agree that the evidence of repeated shots was an issue of fact and that any

inference drawn there from, whether it supported or hindered the defense, was

properly left to the jury to decide.

-15- This issu e has n o merit.

III.

In his third issue, the Defendant claims that the trial court erred in admitting

his confession on two grounds: (1) That the failure of Sheriff’s Department

detectives to inform him that he could be tried as an adult re ndere d his

confession involuntary; and (2) that the confession should have been suppressed

becau se it was n ot record ed on a udio tape .

The Defendant asserts that his waiver of his right to remain silent was

involuntary and violative of the Fifth Amendment to the United States Constitution

and Article I, Section 9 of the Tennessee Constitution. The F ifth Ame ndme nt to

the Constitution as applied to the States through the Fourteenth Amendment

insures that the accused may not be com pelled to b e a witnes s agains t himself.

The Tennessee Constitution also provides that a defendant cannot be compelled

to give evidence against himself. Tenn. Const. art. I, § 9. The accused may

waive these rights, but the w aiver must be made “voluntarily, knowingly, and

intelligently” and “the accused must be adequately and effectively apprised of his

rights and the exercise of those rights m ust be fully honore d.” Miranda v.

Arizona, 384 U.S. 436, 444, 467, 86 S.Ct. 1602, 1612, 1624, 16 L.Ed.2d 694,706,

719 (19 66).

The voluntariness test under the Tennessee Constitution is more protec tive

of individual rights than the test under the Fifth Amendment. State v.

Stephenson, 878 S.W .2d 530 , 544 (T enn. 19 94); see State v. Crump, 834

-16- S.W.2d 265, 268 (T enn. 1992 ); State v. S mith, 834 S.W .2d 915 (Tenn . 1992). A

waiver is valid if the suspect is aware of the nature of the right being abandoned

and the consequences of the decision to abandon th e right. Id. at 547. In

assessing whether a waiver of a right was vo luntary, we must loo k at the tota lity

of the circums tances surroun ding the re linquishm ent of the rig ht. State v. Benton,

759 S.W.2d 427, 431-32 (Tenn. Crim. App. 1988).

After the Defendant was arrested, he was transported to the Sullivan

Coun ty Sheriff’s Department and was placed in an interview room. This was at

appro ximate ly 9:30 p.m. Glen Callahan arrived at the Sheriff’s Department and

gave his pe rmiss ion for L ieuten ants C hristian and B oyd to in terview the

Defen dant. Christian presented the Defendant with a standard rights form

containing the Miranda warnings and read it to him. The Defendant also read the

form himse lf and state d that he understood it. Christian asked the Defendant

whether he was willing to talk, and he indicated his assent. Christian then read

a waiver of rights form, which the Defendant signed. He then made a statem ent.

He was calm and polite. Du ring this time , Lieutena nt Christia n wrote o ut,

verbatim, the Defendant’s statement. The Defendan t reviewed the statem ent,

initialed any cha nges, a nd signe d it. The statement chronicled the events leading

up to, during, and after the killings, resulting in a thirteen-page confession.

The Defendant does not contend that he was coerced into giving a

confession, but claims that his age and the fact that he was not informed that he

could be prosecuted as an adu lt precluded him from making a knowing and

intelligent waiver. He asserts that he is potentially exposed to two differing

ranges of punish ment a s a juvenile and as an adu lt.

-17- The totality of the circumstances approach has been applied to the

custodial interroga tion of juven iles. See Fare v. Michael C., 442 U.S. 705, 99

S.Ct. 2572, 61 L.Ed.2d 197 (1979). This includes assessing “the juvenile’s age,

experience, education, background, and intelligence, and into whether he has the

capac ity to understand the warnings given him, the nature o f his Fifth

Amendment rights, and the consequences of waiving those rights.” 442 U.S. at

725, 99 S.Ct at 2572. However, “[t]he (United States) Constitution does not

require that a criminal suspect know and understand every possible consequence

of a waiver.” Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 857, 93

L.Ed.2d 954 (19 87); see also Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135,

89 L.Ed.2d 410 (19 86). The primary protection afforded by the Miranda warnings

are to preven t coerced self-incrim ination an d “relevan t defend ant ignor ance.”

Stephenson, 878 S.W.2d at 547.

Our exam ination of the to tality of the circumstances surrounding the

statement made by the Defendant indicates that the relin quishm ent of his righ ts

was not the product of intimidation, coercion, or deception, but that it was the

result of the a ppella nt's free and deliberate choice. The Defendant was given

Miranda warnings and read them. He read and signed the waiver as we ll. His

demeanor was calm and cooperative. He was given som ething to drink and to

eat. Although he was of a young age, the Defendant has above-average

intelligence and indicated no reason why he could no t comp rehend what righ ts

he was relinquishing.

As for not informing him that he could be tried as an adult, there is no

constitutional requirement that mandates such information be provided to sec ure

-18- a knowin g waiver. Miranda warnings inform a defendant that “anything you say

can be used against you in court.” This applies to any court. Furthermore, the

ultimate decision to try the Defendant as an adult was not made until after he was

questioned and gave his statement. It would have been premature and

inappro priate for the detectives to outline all the legal co nsequ ences of a

relinquish ment o f rights.

Deference is given to the trial court to assess the credibility of the

witnesses and d eterm ine issu es of fa ct. At an evidentiary hearing on a motion

to suppress eviden ce, the trial co urt’s findings of fact are c onclusive . State v.

Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993). The findings of the trial

judge are afforded the weight of a jury verdict and will not be disturbed on appeal

unless the evidence in the record preponderates against the judgment of the trial

court. Id.; see State v. Kelly, 603 S.W.2d 726, 728-2 9 (Ten n.1980 ). State v.

Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988); The evidence in the

record does not preponderate against the trial court's findings. This issue is

without m erit.

The Defendant also asserts that his confession should have been

suppressed becau se it was n ot tape-re corded . He readily admits that there is no

precedent in this state re quiring co nfession s to be recorded. He argues that the

law shou ld be c hang ed. He cites op inions from two state supreme courts that

have instituted a policy that confessions must be tape recorded if at all possible.

State v. Scales, 518 N .W.2 d 587 (M inn. 1994 ); Stepha n v. State, 711 P.2d 1156

(Alaska 198 5).

-19- In Stephan, the court ruled that custodial interrogations in a place of

detention must be electronic ally recorde d. 711 P.2d at 1162. This holding was

based entirely on that court’s interpretation of the Alaska Constitution. Id. at 1160.

The Minnesota Supreme Court exercised its supervisory power to institute a

recording requirem ent for cus todial interro gations. Scales, 518 N.W.2d 592.

Although we agree that it is preferable to record electronically the reading of

Miranda warnings, the waiver of rights, and custodial interrogations, we decline

to impose this as a requirement for admissability of statements. It inures to the

bene fit of law enforcem ent to record the p rocesses b y which it garners

confessions by showing that the procedures were done properly and without

coercion. It is rathe r curiou s that th e dete ctives in this case chose to write out the

Defe ndan t’s statement in longhand. Ye t, neither the federal no r state

constitutions mandate the use of recording devices. Therefore, we find that the

trial court pro perly adm itted the D efenda nt’s written sta temen t. This issue has

no me rit.

IV.

As his fourth and final issue, the Defendant claims that the trial court erred

in declining to waive the $47,000 fine assessed by the jury on the count of

second-degree murder. The imposition of fines is guided by the 1989 Sentencing

Act. Second-degree murder is a Class A felony for which the jury may impose

a fine not to exceed fifty thousand dollars ($50,000). Tenn. Code Ann. §§ 39-13-

210(b), 40-35-111 (b)(1). Furthermore, the punishment should be justly deserved

in relation to the serious ness of the offen se. Tenn. C ode Ann . § 40-35-102 (1).

-20- The Defendant asserts that because he is indige nt and the fine would pose

an economic hardship, the trial court should have waived the fine. He cites State

v. Bryant, 805 S.W.2d 762 (Tenn. 1991) which approved of the appellate review

of fines. He also notes that the court u pheld this Court’s vacating a fine imposed

on an indigent woman who worked as a waitress and newspaper delivery person.

She also was convicte d for selling coca ine and was fined $200,0 00. State v.

Brenda G. Bryant, C.C.A. No. 872, Su llivan Cou nty (Tenn. Crim. App., Knoxville,

Dec. 27, 1989), perm. to appeal granted (Tenn. 1990). The Defendant contends

that he is indigent, will likely spend twenty-five years in prison, was in high school

and has no employment record. Yet, proof of indigency and hardship does not

nece ssarily preclude the pun ishme nt of a fine. See State v. Mars hall, 870

S.W.2d 532, 5 42 (T enn. C rim. A pp. 19 93). If, ho weve r, it ham pers a defen dant’s

rehabilitation , a fine ma y represe nt an un reason able pu nishm ent. Id.

Here, the De fenda nt is clearly underage, indigent and has not developed

job skills. T here is evidence, though, that he has support from his family that has

not abated even a fter this calculated and tragic crime. We do not feel that the

imposition of the fin e in this case is such that it contravenes the purpose of the

Sentencing Act; rather it reflects the seriousness of the crime for which the

Defenda nt was convicte d. We find no error.

After thoroughly reviewing the record and the Defendant’s argumen ts in

this appeal, we conclude that none have merit. Accordingly, we affirm the

judgm ent of the tria l court.

-21- ____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ DAVID G. HAYES, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

-22-