State v. Doelman
620 S.W.2d 96
Tenn. Crim. App.
1981
Check Treatment

*1 96 with, the It is well that the determi charged

he was and told him of settled binding way.” by of the court charges “surreptitious in a sort of nation fact trial is any there is evi upon appellate courts if Further, was there no evidence Chandler, to it. v. 547 support dence State upon finding the which to base the that However, (Tenn.1977). we find 918 S.W.2d against one an “played officers statement support findings of the no evidence to procuring other” in the oral or the written particulars. foregoing in the trial police “play Even if did one confession. findings His further articulate erroneous another,” is against practice statement this specified as above. conceptions of the law here, when, prohibited, especially not as above, de cannot As stated misrepresentation ac there is no as to the resolving in the without cide issue case complice’s police misrepre A statement. wit testimony of the the conflicts in the oth sentation does not invalidate an alone nesses who have testified. voluntary erwise Frazier v. confession. previously dismissed This was 731, 739,89 1420,1424- Cupp, 394 U.S. S.Ct. in the motion of defects the Court’s because 25, 22 (1969). 684 L.Ed.2d transcript originally as of the evidence to There is no evidence indicate However, to petition we a granted filed. interrogating officers made such state request- by filed without rehear State get ments anoth you way as “We’ll one T.R. ing response from the defendant. See er.” armed The fact the officers were 39(d). A.P. Rule pistols with while transporting prisoner is re- judgment trial court Indianapolis from does not to Tennessee for further versed and the case is remanded render a mat involuntary the confession as opinion. proceeding consistent with this ter There no evidence of law. prisoner threat with or intimidation of JJ., BYERS, concur. DUNCAN and pistols. TO REHEAR ON PETITION clearly do not understand the We judge’s statement this case a has filed Petition defendant have “a little more care State should been mat- reargument of Rehear. It contains a ful, a obtaining a more specific little by the Court. previously considered ters voluntary reading waiver” respectfully denied. petition is warnings the Miranda was insufficient. others, case, in this all only prove by a preponderance State need

of the evidence that constitutional stan State, 562

dards were met. McPherson v. 210, Lego (Tenn.Cr.App.1977); 213

S.W.2d 619, 477, v. Twomey, Tennessee, Appellee, STATE Further, (1972). the State v. required go not the man further than F. and James David DOELMAN C. Arizona, supra. date of v. Miranda Pensoneault, Appellant. by issue the evi- critical Tennessee, Appeals prisoner dence told the of Criminal was whether Court At officers he did desire waive his Jackson. not rights per- constitutional officers June 1981. Mi- questioning sisted in him thereafter. Appeal Permission to Denied Arizona, testimony supra. randa v. 10, 1981. Aug. police three officers fact sharp defendant is conflict on this

issue, must be resolved conflict upon remand. *2 reasonable

appellants guilty beyond a 307,99 Virginia, 443 doubt. Jackson v. (1979); Rule 13(e), T.R.A.P. review, next

In the issue *3 that the contend the search appellants the was in violation of both their farm and Tennessee Constitutions United States thus, and, testimony photographs the their marijuana on suspected the found Leech, Jr., Gen., Atty. Jerry William M. subsequent confessions property their Smith, Gen., Nashville, Atty. L. Asst. Rob- suppressed. have been should Smith, Gen., Atty. ert B. Asst. Dist. Savan- regard to the search proof The with nah, for appellee. 11, 1979, Deputies showed that on October Savannah, Lackey, appellant. W. Lee for ad- Stanfill were Jim Winborn and Wallace appellants two informants that the by vised OPINION on their farm. growing marijuana were the notified sheriff Deputy Stanfill WALKER, Presiding Judge. went Deputy Winborn information while appellants, The David C. Doelman and mari- suspected to the with the informants Pensoneault, F. in James were convicted field, Winborn juana In to the field. route County man- the Circuit Court of Hardin onto public of a road by traveled truck off intent to sell ufacturing possession with would the log an road far as terrain old marijuana, 52-1432(a)(l)(F), and in ac- TCA mile half he walked over a permit; then cordance with the verdict each was sen- until he wooded area through heavily a to nor than tenced not less than two more the Winborn upon suspected field. came five and fined years’ imprisonment $3000. until the sheriff arrived before then waited appellants Both now to this court. further action. taking any We find no reversible error and affirm the depu- and several Eventually the sheriff convictions. warrant, at which with a search ties arrived In re the first issue for premises on the appellants’ house time the view, challenge the the sufficien appellants appellant Doelman was searched proof, which cy of the evidence. The state’s marijuana was also Suspected arrested. accredited, on jury showed that October the house was a the found in house. 11, 1979, marijuana and five-acre field of a from the to 400 feet separate clearing 300 during a was discovered search sunflowers by field a field, separated from the appellants’ 57.5 acre farm Hardin area, enclosed and was not wooded heavily marijuana County. Although suspected by seen house was not within a fence. The tested, scientifically was never several offi marijua- suspected until after Winborn training marijua who some cers had had did not proof na field was discovered. recognition suspected na identified the posted. was fenced show that farm as, fact, plant being marijuana. substance suppress, the motion to hearing At the marijuana was suspected destroyed warrant found search trial thus, and, none a prior to the trial contained affidavit invalid in The trial into affiant. plant by was admitted evidence. misrepresentation substance field, however, regard to were with Photographs of the all evidence ordered sup- addition, inside the house appellants both discovered introduced. In what was judge refused pretrial admitting pressed. made confessions on his evidence based marijuana suppress to sell out of other they growing were observa- Winborn’s Deputy conclusion that state. the evidence is sufficient Clearly, “open within tion of the field was finding fact in justify a rational trier of exception require- fields” to the warrant In this case the record fails to show ment. by prior the land traversed Winborn dis- marijuana covering occupied, field was appeal, State v. appellants, citing On enclosed, cultivated, or in actual use Lakin, (Tenn.1979), 588 S.W.2d 544 contend appellants. Nothing por- indicates that the finding erred in tion farm anything of the traversed was to be outside scope farm of the warrant unoccupied other than wild and land. requirement. appellants contend that Deputy Winborn’s entry upon their land preponderate does not evidence was in violation of the Fourth Amendment against judge’s finding to the United States and Arti- Constitution protected area was not either searched I, cle Section of the Constitu- Tennessee the United States or Tennessee Constitu- In Lakin tion. our noted tions. purpose fields” “open doc- that, appellants *4 next contend trine these constitutional provisions have despite holding that the our search of their somewhat different meanings. scope farm was outside of constitutional constitution, Under the federal Win- protection, the results of the search should born’s actions in coming upon the farm faulty have been excluded because of the subject were to the requirement warrant if clearly search This contention warrant. is appellants legitimate expectation had a validity without merit. of a search privacy in the area searched. State v. consequence no warrant is of if the search Wert, 1977); 550 (Tenn.Cr.App. S.W.2d 1 v. justified is Cf. Searles grounds. other LaFave, Seizure, 1 Search and sec. State, 1979). 391 (Tenn.Cr.App. 582 S.W.2d 2.4(a)(1978); 1 Proce Wharton’s Criminal dure, Torcia, (12th ed., 1974). sec. 150 C.E. issue, a related appellants In physical Given the state of land in this contend that their confessions should have (heavily case any wooded area indi- without been because they excluded were the fruit private cia of ownership) per a reasonable search of their illegal residence. might son have concluded that area not been by appel This issue has briefed was open traversed public to the and not T.R.A.P., 27(a)(7), lants as Rule required subject to the privacy which attaches from thus, Nevertheless, and it has been waived. private ownership. appellants had no proof appellants to show that were fails legitimate expectation privacy. any of illegally confronted with obtain Lakin, pointed addition, out in In ed in the context evidence. Tennessee Constitution is somewhat more case, legally illegally where the and protective private rights. property Arti- nature, seized is identical in evidence I, cle Section 7 of the Tennessee Constitu- had illegally seized evidence would have tion, among other things, protects “posses- little, in any, inducing if effect a confession. from sions” unreasonable and sei- searches Next, the appellants claim that State, zures. Welch v. 60, In 154 Tenn. 289 judge allowing erred in en law (1926), 510 S.W. stated sub identify plant forcement officers “possessions” the word placed in was being marijuana. stance as The state’s the Constitution to limit of real searches for admission of this testi proof foundation personal property and in which was actual that the ex mony established officers were possession Citing and occupancy. Cyc. 31 perienced investigation narcotics de 926, the court posses- noted that “actual thus, and, this issue mer tection is without sion” is usually occupation, evidenced by State, Armstrong v. 334 it. 548 S.W.2d enclosure, substantial or use. cultivation 1976). (Tenn.Cr.App. held, however, The court the word “possessions” would not “wild or appellants complain include next lands, waste or other prospec- lands that were unoc- to excuse three refused cupied.” jurors appeared tive for cause when it

100 v. not Wooten jury impartial. his dered about the case opinions formed they had 189, (1897). State, Tenn. 41 813 publicity. They 99 S.W. pretrial newspaper from the trial im- without merit. argue particular This issue is jurors, they properly rehabilitated have been review All issues for comments to call attention the committee to be merit- and are found fully considered 24, Rule Tenn.R.Crim.P. less. proper It is for is judgment affirmed. jurors. in the part take examination totally igno Qualified jurors need not be CORNELIUS, JJ., concur. DUNCAN of the facts issues involved. Lack rant State, (Tenn.Cr.App. ey v. 578 101 CORNELIUS, S.W.2d concurring. Judge, 794, State, 1978); Murphy v. I do Judge opinion. Walker’s I concur 2031, (1975). Any jur- in State my not recede from dissent partiality indicated on the voir dire or who Blackstone, Court of v. Hamilton Tennessee examination either excused cause Knoxville, Sep- filed Appeals at Criminal challenged peremptori court or 1980. instant case tember In the jurors were ly. question The three chal admits pre-trial made confessions appellants the record lenged peremptorily, by whom marijuana to they were ting growing event, juror not show. no does In York). (in the state New out of sell challenged for on the case. cause sat Furthermore, must a defendant not *5 challenges,

only peremptory exhaust his but challenge

he also offer to challenge must juror additional in order to prospective

an judge’s

complain refusing

error in excuse for cause ren-