WPC+,_; WP_TV07805668WP6)sportsallerxsIWPTVWPC2 xZR{WP}10{WP}01Timesw{WP}12?l   M{WP}11   PWP 6.0 caption8{WP}22M{WP}16 \UN>(hH  Z 6Times New Roman Regular %X6 0(($HU:,  AZ"Arial RegularNw@ D  E   D  Ӏ  "44n~<$CC8H3|x  0W(6(2:$ !     `   0  R 0D(#$  0  HU:,  AZ"Arial Regular'R 0DQ(3$ !     :$   `   4    ݀Thisissueisnotwaivedbytheuntimelyfilingofthemotionfornewtrial.If  defendantsargumentonthisissueiscorrect,anewtrialwouldnotbegranted.Theindictmentwouldbedismissed.Untimelyfilingofthemotionfornewtrialwaivesonlytheissueswhichmayresultinthegrantingofanewtrial.Statev.Dodson,780S.W.2d778,780  (Tenn.Crim.App.1989).  :$   `   5    ݀Defendantraisestheissueonappealthathewasillegallyarrestedinhishome  withoutawarrant.SeePaytonv.NewYork,445U.S.573,100S.Ct.1371,63L.Ed.2d639  (1980).However,becausewehavedeterminedthatdefendantwasillegallyseizedwithoutprobablecause,weneednotaddressthisissue.5'  !"  X XXX\,XX    Ad FILEDX X\,   August21,1998  CecilCrowson,Jr.SXX AppellateCourtClerk HU: ,cAZ"Arial Regular_ AQ!6 !#%C<< C!Level 1Level 2Level 3Level 4Level 5R 0D"M(3$ !  + B" dR 0D"($$   1  = D/"''' dxd+ B#!P PdA D3#>""""'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2. QI : Corel WordPerfectxHH(FG(HH(d'h_:L B&PSetBPJobNStylZwp60versWDatSTR PtPt:A:Awe (S ~  6 Js$ mF+ 2  +:A :A :A :A ):A {:A :A :@ Z:A| :A :A :A, l:A8 :A@ o:A :A :A$ W:AH! /:AL" :A`# :Ad%  :Ah' K:Al( z:Ax :E :G,:A *:G@{WP}10{WP}12{WP}11WP 6.0 caption{WP}22{WP}16{WP}01"Hl' '" x{WP}10 <<KK ..,,..,, xTimes۪HHlHЫ x Helvetica(d(  { xlhj+%'$' x{WP}10 <<KK  xTimes xs{WP}22 x Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 21, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk{     x x x0' '0 x"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0*AT JACKSON*88FJULY 1998 SESSIONFTTbbp$  p~' '$STATE OF TENNESSEE,8)0  ~~~' '0)"NO. 02C019712CC004600  ' '0$Appellee,~)$  ' '$)"TIPTON COUNTY0  ' '0VS.)0' '0)"HON. JOSEPH H. WALKER,' 'III,$' '$JOHN MALCOLM JOHNSON,)"JUDGE0' '0)$Appellant.{)"(Rape of a Child)  &5&46y' '5ܪ6y  ЫFOR THE APPELLANT:04B44' '0BPGARY F. ANTRICAN$P^' '$(At Trial and On Appeal)0^l^^' '0District Public Defenderlz$z' '$DAVID S. STOCKTON0' '0(At Trial and On Appeal)0' '0Assistant Public Defender118 E. Market Street P.O. Box 700$ !' '$Somerville, TN 3806807000!"' '00"#' '0KEMPER B. DURAND0#$' '0(Appeal Only)0$%' '0One Commerce Square%&TwentyNinth Floor&'"Memphis, TN 38103R'("0 ""((0 ' 'RFOR THE APPELLEE:0((4B44' '0$)(BP' '$JOHN KNOX WALKUP0*(P^PP' '0Attorney General and Reporter+(^l$,(lz' '$MARVIN E. CLEMENTS, JR.0-(zzz' '0Assistant Attorney General.(Cordell Hull Building, 2nd Floor/(425 Fifth Avenue North0(Nashville, TN 3724304931($2(' '$ELIZABETH T. RICE03(' '0District Attorney General4($5(' '$J. WALTER FREELAND, JR.06(' '0Assistant District AttorneyGeneral7("302 E. Market Street8("0UUSomerville, TN 38068 00)(0 G44(@@)NNG 6y6y9)0\:*\j;+jxJ<,x xx,, HJܿ-ܿ$-' '$ x x x xOPINION FILED:  0.' '0/01AFFIRMED234 5JOE G. RILEY, 6"JUDGEV 7"0 " 70 H' 'V xͪ  Ы x x   xͬA 7VXXdXXd7A  x  Times ЭOPINION08@[@' '09[v$UUThe defendant, John Malcolm Johnson, was convicted by a Tipton`County jury of one (1) count of rape of a child, and the trial court sentenced him;to fifteen (15) years. On appeal, defendant presents the following issues for ourreview:$=v' '$ xͪ  Ы x x   x$(1) whether the trial court erred in denying defendants request for' 'a continuance;#?#@ $t](2) whether the trial court erred in finding that the victim wascompetent to testify;#B (#C(6$bv(3) whether defendant was denied his right to a fair trial due to theracial composition of the jury;#E6R# FR`$(4) whether the evidence was sufficient to support the jurys findingof guilt;# H`|# I|$r(5) whether defendant was denied his constitutional rights to dueprocess of law and against double jeopardy; and# K# L$L(6) whether the trial court erred in denying defendants motion tosuppress his statement given to law enforcement authorities.#N#$O' '$؞ xͪ  Ы x x   xAfter a thorough review of the record, we find no reversible error. Accordingly,' 'the judgment of the trial court is affirmed.Q$R/' '$FACTUAL BACKGROUND0S/J/' '0TJe$LThe defendant was married to Janet Johnson, and they had threechildren. In the early morning hours of November 9, 1996, Janet awoke andmnoticed that her bedroom door was closed. Since she had not closed the door,6 [ We H6she decided to check on her children. When she went into her daughters' 'v'bedroom, her eleven (11) year old daughter, J.J. x{WP}11  1    x  "Hl'  '"-- x{WP}10  <<KK  xTimes xS{WP}12HHlH$  1   It is the policy of this Court not to reveal the names of minor victims of sexual'  'abuse.֭, was not there. Janet walked' 'Pinto the living room and turned on a light. She saw defendant lying on his backon the couch, and J.J. was sitting astride defendant. Defendant was totallynude, and his penis was partially erect. J.J. was wearing only a pajama top.\eQ$Janet took J.J. into a back bedroom, and defendant followed them. Defendant stated,  Janet, Im sorry. He then apologized to J.J.^Q$jJ.J. testified at trial that her father came into her bedroom during thatparticular night. He brought her into the living room and told her to take off her$underwear. He was not wearing any clothes. Defendant then laid on the couchon his back and told her to lay on top of him. She further testified as follows:$b' '$ xͪ  Ы x x   x$Q.H$IAnd do you know where your fathers penis-' 'was?#d#e$A.H$It was in my vagina.#f+#g+9$Q.H$Okay. Was it a little bit or a lot in your vagina?#h9G# iGU$A.H$A little bit.# jUc# kcq$. . . . lq m$Q.H$Did When his penis was in your vagina, didit hurt you?#o#p$A.$Yes, sir.q$r' '$v' xͪ  Ы x x   xWhen her mother walked into the room, J.J. picked up her underwear and went ' 'back to her bedroom.Jt  (t+ HJ$Investigator Linda Gamblin with the Covington Police Departmentfftestified that on November 11, she spoke with defendant concerning theincident. She read defendant his Miranda rights, and defendant signed a formv'waiving those rights. She testified that defendant did not appear to be underI%the influence of any intoxicant at the time of the interview. Defendant then gaveUUa statement where he admitted that he took J.J. into the living room on the nightiiin question, told J.J. to take off her underwear, and then told her to lay on top ofhim. However, in the statement, defendant denied penetrating J.J.|$6Defendant testified on his own behalf at trial. He stated that he had beenOsmoking crack cocaine and drinking beer on the night of the incident. He*testified that when he returned home from band practice that night, he fellasleep on the couch. He woke up, and Janet began accusing him of sexuallyassaulting his daughter. He testified that he could not recall what he told.Investigator Gamblin on November 11 because he was under the influence ofUcrack cocaine at the time. However, he denied penetrating his daughter, J.J. 6He also intimated that his wife fabricated this incident as a means to punish himfor using drugs. He stated that she once told him,  [i]f I got back on crack, . . . shed make my life a living hell.  $The jury returned a guilty verdict for rape of a child. Defendant nowbrings this appeal as of right. 5$ 5 P' '$cUNTIMELY MOTION FOR NEW TRIAL0 P k P7' '0J k  kR HJ$EInitially, we must note, as the defendant concedes, that his motion for;new trial was untimely filed. The judgment of conviction was entered on August29, 1997, and the motion for new trial was filed on October 27, 1997. A motion*for a new trial  shall be made . . . within thirty days of the date the order ofI%sentence is entered. Tenn. R. Crim. P. 33(b). This provision is mandatory, and' 'the time for filing may not be extended. Tenn. R. Crim. P. 45(b); see also State ' ''bv. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); State v. Dodson, 780 S.W.2d 778,780 (Tenn. Crim. App. 1989). The thirty (30) day provision is jurisdictional, andan untimely motion is a nullity. State v. Martin, 940 S.W.2d at 569. Unlike theuntimely filing of the notice of appeal, this Court does not have the authority to' 'pwaive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a).  ' 'The defendant, therefore, relinquishes the right to argue on appeal any issuesthat were or should have been presented in the motion for new trial. Martin, 940UUS.W.2d at 569. However, this Court, in its discretion, may also take notice of anerror which affects a substantial right of the defendant where it may be;necessary to do substantial justice. Tenn. R. Crim. P. 52(b); State v. Givhan,616 S.W.2d 612, 613 (Tenn. Crim. App. 1980).$ a' '$A. Denial of Continuance0 a | a' '0$Defendant firstly contends that the trial court erred in denying defendants33request for a continuance due to the states alleged discovery violations. However, this issue is waived by defendants failure to timely file the motion forInew trial. Martin, 940 S.W.2d at 569. Nevertheless, this Court has reviewed the' 'record and concludes that the trial court did not abuse its discretion in denyingN R R | H' 'Nbvdefendants request for a continuance. See State v. Hurley, 876 S.W.2d 57, 65 ' '(Tenn. 1993); State v. Goodwin, 909 S.W.2d 35, 44 (Tenn. Crim. App. 1995).$ | I' '$B. Victims Competency0 I d I6' '0$Defendant also alleges that the trial court erred in finding that the victim,J.J., was competent to testify. This issue is also waived by the untimely motionfor new trial. Martin, 940 S.W.2d at 569. Nevertheless, after a review of thevictims testimony, we find no abuse of discretion by the trial court in finding the' 'victim competent to testify. x{WP}11  2     x * "Hl'  '" x{WP}10  <<KK  xTimes xS{WP}12HHlH$  2   In support of his argument that the victim was incompetent to testify, defendant'  'ncomplains that the victim was not able to answer many of defense counsels questions on$crossexamination. The victim was eleven (11) years old, and there was testimony that shehad a learning disability. However, many of defense counsels questions were convoluted,6confusing, obscure and vague. The following excerpts are some of the questions asked bycounsel: IIU$Q.H$LIf that statement were untrue or part of it were untrue]or you were unsure about that, would it be possible that youare unsure about some of the other things youve talkedabout here?# U# $. . . . $Q.H$Would it be accurate and would I be speaking/correctly if what youre telling me right now is that a fewtminutes ago you shook your head no when he asked you if33you knew the difference and you agree now that you dontknow the difference? Would that be true?##$. . . .    $Q.H$Would it be accurate to say that with regard to someof the things youve said today that youre not sure whetheryouve been telling the truth about all of them or not? Wouldthat be accurate?#  9# 9E$. . . .  EQQ]$Q.H$Let me rephrase that. Am I Do you Can youffgive me an explanation about whether or not this might havebeen a dream or it may have been some of the things yousaid today could be inaccurate or not true? Is that possible?#!]#"$. . . . #$$Q.H.. . . Well, is it possible sometimes that your feelings aremproducts of dreams or incorrect memories of whathappened?#'#(%As appellate judges we confess our inability to comprehend the meaning of some of thesequestions. We fail to understand how an eleven (11) year old child with a learningdisability could be expected to respond to such questions.+ ֭ See State v. Hallock, 875 S.W.2d 285, 293 (Tenn.N   d H' 'NCrim. App. 1993).$ d' '$wC. Racial Composition of Jury05' '0$I%Defendant further asserts that he was denied his right to a fair trial due to' 'the racial composition of the jury. See Batson v. Kentucky, 476 U.S. 79, 106PQ' 'S.Ct. 1712, 90 L.Ed.2d 69 (1986). This issue is waived for the failure to timely6file the motion for new trial. Martin, 940 S.W.2d at 569. Furthermore, defendantconcedes that no Batson challenges were made during jury selection, and the' 'issue is also waived for this reason. See Tenn. R. App. P. 36(a).05' '0$' '$jSUFFICIENCY OF THE EVIDENCE0 ' '0 ($ffIn his next issue, defendant challenges the sufficiency of the convicting' 'evidence. x{WP}11  3   " x  "Hl'  '"9 x{WP}10  <<KK  xTimes xS{WP}12HHlH$  3   The failure to timely file a motion for new trial does not result in a waiver of this'  'issue. See State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997).$ $"֭ Defendant claims that there was no testimony that he penetrated theCD' 'Nvictim, save that of the victim, whom he alleges to be incompetent to testify. ;Therefore, he contends that no rational trier of fact could have convicted him of' 'rape of a child.b(  H' 'bрA.ÿ0' '0 x x x Helvetica x x x Helvetica x$ffIn determining the sufficiency of the evidence, this Court does not@reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835O(Tenn. 1978). A jury verdict approved by the trial judge accredits the state'sI%witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885'bS.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).OOn appeal, the state is entitled to the strongest legitimate view of the evidenceand all legitimate or reasonable inferences which may be drawn therefrom. Id.DDThis Court will not disturb a verdict of guilt due to the sufficiency of the evidenceunless the defendant demonstrates that the facts contained in the record andthe inferences which may be drawn therefrom are insufficient, as a matter oflaw, for a rational trier of fact to find the accused guilty beyond a reasonabledoubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly,؞it is the appellate court's duty to affirm the conviction if the evidence, viewed؞under these standards, was sufficient for any rational trier of fact to have found*the essential elements of the offense beyond a reasonable doubt. Tenn. R. App.P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).$' '$рB. x x Helvetica x0' '0$;Rape of a child is defined as  the unlawful sexual penetration of a victim8by the defendant . . . if such victim is less than thirteen (13) years of age. Tenn.Code Ann.  3913522(a). Sexual penetration means  sexual intercourse,cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of6 R  H6 yany part of a person's body . . . into the genital or anal openings of the victim's . .. body. Tenn. Code Ann.  3913501(7).$v' '$C.0vv6' '0$jThe eleven (11) year old victim testified that her father brought her intomthe living room and told her to take off her underwear. Defendant then reclinedron the couch, totally nude, and told the victim to lay on top of him. He put his$hands on her  behind and then put his penis in her vagina. Furthermore, Janet3Johnsons testimony corroborated the victims testimony. She testified that shesaw defendant lying nude on the couch with a partially erect penis. J.J. wassitting astride defendant and was wearing only a pajama top.N$fAlthough defendant claims that the victim was incompetent to testify, thetrial court determined that she was competent. We have previously stated that' '""the trial court did not abuse its discretion in this regard. See State v. Hallock,D' '875 S.W.2d at 293. Moreover, defense counsel vigorously crossexamined the   victim,       and    the jury was able to observe this examination and assess thev'victims credibility accordingly. It is beyond the province of this Court to secondguess this assessment. Indeed,  x x Helvetica xquestions concerning the credibility of the%witnesses, the weight and value to be given the evidence as well as all factualissues raised by the evidence are resolved by the trier of fact, not this Court. x x Helvetica x  x x Helvetica xState v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). x x Helvetica x N\$The evidence was sufficient for a rational trier of fact to find thatdefendant sexually penetrated his daughter. This issue is without merit.$\' '$bR R  H' 'bQDUE PROCESS AND DOUBLE JEOPARDYÿ0' '0$jDefendant next asserts that he was denied his rights to due process oflaw and against double jeopardy when he was held without bond for three (3)[ndays in the Tipton County Jail. He claims that his detention was punitive, not' 'remedial. He, therefore, urges this Court to dismiss the subject indictment. x{WP}11  4     x==  "Hl'  '"xx x{WP}10  <<KK  xTimes xS{WP}12HHlH$  4   This issue is not waived by the untimely filing of the motion for new trial. If'  'UUdefendants argument on this issue is correct, a new trial would not be granted. Theindictment would be dismissed. Untimely filing of the motion for new trial waives only theZZissues which may result in the granting of a new trial. State v. Dodson, 780 S.W.2d 778,780 (Tenn. Crim. App. 1989).= ֭0cD' '0A. Background0c~c' '0$8On Monday, November 11, defendant was arrested on the presentoffense. This was Veterans Day, a state holiday. He was brought before amagistrate on Tuesday, November 12, for his initial appearance in General' 'Sessions Court where an arrest warrant was issued. See Tenn. R. Crim. P.' '5(a). During this proceeding, the court denied defendant bail. On Thursday,November 14, the General Sessions judge set bail, which was posted bydefendants family that evening. Defendant was thereafter released.~;$UThe trial court found that defendants detention until a bond was set didt]not subject him to double jeopardy as the detention did not constituteff punishment under the United States Constitution. The court also implicitlyEfound that defendant was afforded sufficient procedural due process, as he wasbrought before a magistrate within a day of his arrest. Therefore, the trial court' 'denied defendants motion to dismiss the indictment.b;  O H' 'bB. Double Jeopardyÿ0' '0$The resolution of defendants double jeopardy claim turns upon theTennessee Supreme Courts recent holding in State v. Pennington, 952 S.W.2d423 (Tenn. 1997). In Pennington, the Court recognized that jeopardy does notattach in    a pretrial    proceeding. 952 S.W.2d at 422. The Court noted,$t' '$ xͪ  Ы x x   x$Eto be put in jeopardy, the defendant must be  subject to criminalt' 't]prosecution and put to trial. United States v. Grisanti, 4 F.3d 173,r175 (2nd Cir. 1993). The proceeding must be  essentially criminal and constitute an action  intended to authorize criminal8punishment to vindicate public justice. Id. (citing Breed v. Jones,m421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975),and United States ex rel Marcus v. Hess, 317 U.S. 537, 548-49, 63S. Ct. 379, 386, 87 L. Ed. 443 (1943)).# t#$ ' '$$ xͪ  Ы x x   xId. If the purpose of detention is remedial, as opposed to punitive, then the' ';double jeopardy clause is not implicated. Id. at 42223; State v. Coolidge, 915S.W.2d 820, 823 (Tenn. Crim. App. 1995). Pretrial detention in order to  assureUa defendants presence at trial is a legitimate remedial purpose. State v.Coolidge, 915 S.W.2d at 823.y$In the present case, the defendant was detained for three (3) days prior to%his release on bond. Jeopardy did not attach at this point. Furthermore, wejagree with the trial courts finding that defendants detention was not punitive in.nature. Therefore, we conclude that defendant was not subjected to doublet]jeopardy in violation of the Fifth Amendment of the United States Constitutionand Article I, Section 10 of the Tennessee Constitution.y$This issue is without merit.$6' '$C. Due Processb6Q6I 6I Q H' 'b$rDefendant also claims that his prolonged detention without a bondsetting violates his rights to due process of law.  Pre-trial detention that is8remedial as distinguished from punitive is permissible provided that theindividual is afforded sufficient procedural due process. Pennington, 952S.W.2d at 423 (citing United States v. Salerno, 481 U.S. 739, 751, 107 S.Ct.2095, 2103, 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 264, 104[nS.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984); Bell v. Wolfish, 441 U.S. 520, 536, 99S.Ct. 1861, 1872-73, 60 L.Ed.2d 447 (1979)). However, defendant was3provided sufficient procedural due process. Defendant was brought before amagistrate within a day of his arrest as mandated by Tenn. R. Crim. P. 5(a). !ao$ Although the General Sessions Court initially denied the defendantNbond, the allegation that such a decision was erroneous does not give rise to6the relief sought. The failure of the General Sessions Court to set bond onNovember 12 does not give rise to a dismissal of the indictment.%o$This issue has no merit.&$'' '$ MOTION TO SUPPRESS0(,' '0),G$Defendant contends the trial court erred in refusing to suppress his pre  trial statement to the authorities. In spite of the untimely filing of the motion forNnew trial, we elect to address this issue to determine whether the refusal tosuppress was plain error. We find it was not.-G$.Only two witnesses testified at the motion to suppress, Investigator Linda6 R.  H6[nGamblin and Officer Darryl Smith. The defendant did not testify at the motion tobvsuppress; however, he did testify at trial as to certain matters that would berelevant to the motion. This Court may consider those portions of his trial' 'testimony that are relevant to the motion to suppress. See State v. Henning,  /Q' 'S.W.2d   (Tenn. 1998).$3e' '$A. Facts04ee' '0$8Investigator Gamblin was personally acquainted with the defendant. The/defendant was a former police officer with the Covington Police Department aswell as the former police partner and former neighbor of Investigator Gamblin.7$LDefendants wife, Janet Johnson, was a school teacher. On Novembern11, 1996, at approximately 7:00 a.m, she was on her way to school and spokeFwith Investigator Gamblin at the Covington Police Department. They  talked justbriefly, and the officer was informed that Janet  suspected her husband hadforged [some checks]. Janet also stated there had been  inappropriate contactfbetween the defendant and their daughter. According to Investigator Gamblin,v'Janet did not go into a  great amount of detail. Janet advised InvestigatorGamblin that she made the defendant leave the residence. InvestigatorGamblin advised Janet that she would need to talk with the child that afternoon. @$Later in the morning Janet contacted Investigator Gamblin and informedUher that the defendant was back in the residence, and Janet wanted himremoved. Investigator Gamblin desired to speak with the defendant and askedOfficer Smith to bring the defendant to the police department  for investigation. $Investigator Gamblin testified this was  not an arrest. I just wanted to speak with6 0REf H6him.Fv$Officer Smith knocked on the front door of defendants residence and,after no response, went inside where he discovered the defendant taking a;shower. Officer Smith informed the defendant he was being taken to the station for investigation purposes and would have to be handcuffed in accordanceUwith department policy. Being a former police officer with that department, thedefendant indicated that he understood the  policy and had  no problem withit. The defendant did not consider himself  under arrest, but rather understoodhe was being taken to the station to be interviewed by Investigator Gamblin. Defendant was transported to the police department in a patrol unit. Ovi$fUpon his arrival at the police station at approximately 11:00 a.m.Investigator Gamblin advised the defendant of his Miranda rights. As a formert]police officer, the defendant was very familiar with the Miranda rights andLunderstood them before they were given to him by Investigator Gamblin. .Defendant then signed a waiver and gave an incriminating statement relating to'binappropriate sexual contact with the child. After the giving of the statement, thedefendant was formally arrested.$Vi &' '$B. Trial Court Findings0W & A &' '0 x x x x$UUThe trial court found that  the officer had probable cause to order the A' ''barrest of the defendant based on allegations that he had forged checks and hadt]inappropriate sexual contact with the minor under the age of thirteen (13)bvyears. A trial courts findings of fact in a suppression hearing are conclusive/unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18,6 R\ A H6I%23 (Tenn.1996). However, the application of the law to the facts found by the' 'trial court is a question of law which this Court reviews de novo. State v. ' 'Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). We proceed to review the trialcourts ruling under these principles.$ ` A!D' '$C. Seizure0a!D!_!Dl' '0 x x x x$Defendant contends he was unlawfully seized in his residence without!_' 'probable cause. We agree.c!_!$We first determine whether the defendant was, in fact, arrested or seizedat his residence. The crucial inquiry is whether he was  seized for FourthLAmendment purposes. Whenever an officer accosts an individual and restrainsUthe freedom to walk away, the officer has  seized that person for FourthAmendment purposes. State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). ERegardless of the policy of the Covington Police Department or the subjective/intentions of the officers, the handcuffing of the defendant and transporting himto the police department constituted a seizure. k!"m$8Furthermore, this was not an investigatory stop or detention which,Lalthough may be justified upon reasonable suspicion supported by specific andarticuable facts, must be temporary and for a limited purpose. Florida v. Royer,""460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Terry v. Ohio, 392 U.S. 1,88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Simpson, ___ S.W.2d ___UU(Tenn. 1998).  [D]etention for custodial interrogation regardless of its label ffintrudes so severely on interests protected by the Fourth Amendment asnecessarily to trigger the traditional safeguards against illegal arrest. Dunaway6 #*Rs"m H6v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 2258, 60 L. Ed.2d 824 (1979). 8The defendant was detained for custodial interrogation; therefore, Dunaway iscontrolling.$ v"m#' '$D. Probable Cause0w###Q' '0$3Having determined that the defendants seizure did not qualify as anUinvestigatory detention, the seizure was much more akin to a formal arrest and@must have been founded upon probable cause. State v. Melson, 638 S.W.2dv'342, 350 (Tenn. 1982). An officer in Tennessee may effect a warrantless arrest@ [w]hen a felony has in fact been committed, and the officer has reasonableNcause for believing the person arrested to have committed it. Tenn. Code Ann. 407103(a)(3). Improper sexual contact with a child and forgery, regardless' 'of the amount of the forged instrument, are felonies. See Tenn. Code Ann. $~)' '3913504(a)(4), 3914114(c). #$$Whether probable cause exists depends upon whether the facts andcircumstances and reliable information known to the police officer at the time ofUUthe arrest  were sufficient to warrant a prudent [person] in believing that the[individual] had committed or was committing an offense. Beck v. Ohio, 379I%U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v. Marshall, 870;S.W.2d 532, 538 (Tenn. Crim. App. 1993). Probable cause must be more thanv'mere suspicion. State v. Melson, 638 S.W.2d at 350. Generally, the subjective33motivations and characterizations by the police officers are not determinative as[nto the legitimacy of an arrest, search or seizure. Whren v. United States, 517U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Vineyard, 9586 %R% H6S.W.2d 730, 736 (Tenn. 1997). $%$3Under both the federal and state constitutions, a warrantless search orffseizure is presumed unreasonable with the state having the burden todemonstrate that the seizure was conducted pursuant to one of the narrowlydefined exceptions to the warrant requirement. Coolidge v. New Hampshire,O403 U.S. 443, 45455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); State v.Yeargan, 958 S.W.2d at 629.%&$fInvestigator Gamblin testified at the motion to suppress that she wasinformed by defendants wife that there had been some  inappropriate contactbetween the defendant and their daughter. Janet did not give InvestigatorGamblin any details concerning the  inappropriate contact, and Gamblin؞indicated that she needed to speak with J.J. later that day. This information,.standing alone, is insufficient to warrant a reasonable person in believing thatOdefendant had in fact committed a felony sexual offense. The officer did nothave probable cause to arrest defendant for sexual abuse at that time.&'g$I%Similarly, according to Investigator Gamblin, Janet  suspected theLdefendant of forgery. Janet and Investigator Gamblin  talked just brieflyconcerning this matter. Investigator Gamblin did not testify about any factualmdetails conveyed to her by Janet. Again, probable cause did not exist for thewarrantless arrest of defendant for forgery based upon this conversation.$'g'' '$$EWe, therefore, conclude the trial court erred in its legal determination thatN' '' H' 'Nprobable cause existed for the arrest of defendant. x{WP}11  5    x11  "Hl'  '" x{WP}10  <<KK  xTimes xS{WP}12HHlH$  5   Defendant raises the issue on appeal that he was illegally arrested in his home'  '@without a warrant. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d '  '639 (1980). However, because we have determined that defendant was illegally seizedwithout probable cause, we need not address this issue.1֭0'(8(' '0rE.  Fruit of the Poisonous Tree0(8(S(8' '0$8Because we have determined that defendant was illegally seized withoutprobable cause, our next inquiry becomes whether defendants statement wasillegally obtained as a result of the illegal seizure. The analysis used toUdetermine    admissibility of such a statement    is the  fruit of the poisonous treeanalysis, as opposed to a voluntariness test. Brown v. Illinois, 422 U.S. 590,U601, 95 S.Ct. 2254, 226061, 45 L.Ed.2d 416 (1975); State v. Huddleston, 924*S.W.2d 666, 674 (Tenn. 1996). In order to ascertain whether a statementobtained in violation of the Fourth Amendment should be suppressed, the؞primary inquiry is  whether [the statement] was sufficiently an act of free will topurge the primary taint of the unlawful invasion. Brown v. Illinois, 422 U.S. at%599, 95 S.Ct. at 2259 (quoting Wong Sun v. United States, 371 U.S. 471, 486,' 'bv83 S.Ct. 407, 41617, 9 L.Ed.2d 441 (1963)); see also State v. Huddleston, 924)|c' 'S.W.2d at 674. (S)$EAlthough this determination is made pursuant to the facts of each case,the following four considerations are helpful in this determination:$))' '$ xͪ  Ы x x   x$(1) the presence or absence of Miranda warnings; (2) the temporal)' 'proximity of the arrest and the confession; (3) the presence ofintervening circumstances; and finally, of particular significance,(4) the purpose and flagrancy of the official misconduct.#)* #$* *.' '$ xͪ  Ы x x   xHuddleston, 924 S.W.2d at 674.b*.*I*. *.C*I H' 'b1. Miranda Warningsÿ0*Y*t*Y' '0$.Applying the above factors to the present case, it is undisputed thatNdefendant received his Miranda warnings upon arrival at the police station. It isEalso noteworthy that defendant, as a former police officer, had an intimateunderstanding of these rights.$*t*' '$2. Temporal Proximity0***' '0$Weighing in favor of suppression of the statement is the temporalproximity of the arrest and the defendants statement. Defendant gave thestatement to Investigator Gamblin within thirtyfive (35) minutes of his arrival at6the police station. However, this factor is not determinative of the issue. InRawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), thedefendant and two others were detained by officers in a residence while otherEofficers left to procure a search warrant. Defendant gave an incriminatingstatement fortyfive (45) minutes after the initial detention. Although theSupreme Court recognized the short period of time between the illegaldetention and the statement, the Court noted that the atmosphere during thedetention was congenial and nonthreatening. 448 U.S. at 108, 100 S.Ct. at2563. Thus, the Court found that the circumstances surrounding the detentionoutweighed the short time span between the detention and the statement. Id. *,Z$UOur situation is analogous to Rawlings. There is nothing to indicate a coercive or threatening atmosphere surrounding defendants statement. TheFrecord indicates to the contrary. These circumstances outweigh the short time' 'span between the detention and the statement.b,Z,,R ,R, H' 'by3. Intervening Circumstancesÿ0,,,' '0$The facts of this case are extremely unique and attenuate the taint of thev'illegal seizure. Defendant was a former police officer who was familiar with theprocedures and policies of the Covington Police Department. He wasfpersonally acquainted with the officers involved and, in fact, was InvestigatorGamblins former partner and neighbor. He clearly understood he was merely$wanted for questioning. He did not consider himself to be under arrest when he'bwas seized, nor when he gave the statement. He was totally cooperative andwilling to give a statement.$,-' '$4. Flagrant Misconduct0---' '0$Furthermore, the official misconduct in this case must be viewed inUUproper context. In Brown, the improper arrest was accomplished  in the hopethat something might turn up, and its manner was such  to cause surprise, fright<