State of Tennessee v. Mitchell Delashmitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 30, 2008 Session

STATE OF TENNESSEE v. MITCHELL DELASHMITT

Interlocutory Appeal from the Circuit Court for McMinn County

No. 03-237 Carroll L. Ross, Judge

No. E2007-00399-CCA-R9-CD - Filed August 7, 2008

In this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the

State challenges the trial court’s suppression of the defendant’s June 23, 2003 statement to police.

Because we agree that the defendant’s Fourth, Fifth, and Sixth Amendment rights, as well as certain

statutory rights, were violated in the procuring of the statement, we affirm the judgment of the trial

court.

Tenn. R. App. P. 9; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;

Jerry N. Estes, District Attorney General; and Steven Crump, Assistant District Attorney General,

for the appellant, State of Tennessee.

Katherine L. Harp (on appeal); and John E. Eldridge and Steven B. Ward (at trial), Knoxville,

Tennessee, for the appellee, Mitchell Delashmitt.

OPINION

The sequence of events giving rise to this appeal began on June 19, 2003, when the

defendant’s 14-month-old daughter, Angel Delashmitt, was discovered unresponsive in a pond near

the defendant’s home. The defendant summoned an ambulance and drove to the hospital in his own

vehicle. Resuscitation efforts were unsuccessful, and the victim was declared dead at the hospital.

The defendant was first questioned about the victim’s death at the hospital, where he admitted falling

asleep while the victim was in his care. He was arrested on a charge of criminally negligent

homicide and taken to the McMinn County Jail, where four days later he signed a statement

indicating that he had raped and shaken the victim. The trial court’s suppression of that statement

and a videotaped “follow-up” is the subject of this appeal.

For purposes of clarification and context, we will briefly summarize the two

components that comprise the statement at issue in this opinion. The first part of what we are

collectively calling “the statement” is a recitation of facts written by Detective B.J. Johnson during

an interview following the defendant’s polygraph examination on June 23, 2003. This portion of

the statement is written entirely in Detective Johnson’s handwriting but signed by the defendant.

In it, the defendant states that after dinner on June 19, 2003, he watched a pornographic videotape

in the living room while the victim sat on the couch. He stated that as he watched the videotape, he

first fondled the victim with his penis before penetrating her anus briefly. According to the

statement, the defendant stopped when the victim cried and then shook her to get her to stop crying.

When she stopped crying, he replaced her diaper, and returned her to the couch, where she remained

while he fell asleep in a chair. At that point, the victim was alive. The defendant stated that he was

awakened by a neighbor and then realized that the victim was gone. He and the neighbor found the

victim in a nearby pond. Another neighbor performed CPR until an ambulance arrived. The

videotape recording portion of the statement features Tennessee Bureau of Investigation (TBI) Agent

Barry Brakebill going over the written statement with the defendant. The defendant makes no

affirmative statements regarding the injuries to the victim and, instead, provides yes and no answers

to the agent’s questions.

The hearing on the defendant’s motion to suppress occurred on January 4, 2006,

December 7, 2006, and February 2, 2007, in order to accommodate the schedules of various State

and defense witnesses. Although the proof was taken out of order, we have arranged the proof in

a more traditional order.

Defense Proof

Doctor Darinka Mileusnic-Polchan, Knox County Assistant Chief Medical Examiner,

testified that, at the defendant’s request, she had reviewed the 9-1-1 call, the original autopsy report

prepared by McMinn County Medical Examiner Doctor Ronald Toolsie, the victim’s medical

records, the TBI records from this case, autopsy photographs and slides, and the sworn statement

provided by the victim’s mother, Rebecca Dunn, taken at the time of the victim’s death. Doctor

Mileusnic-Polchan opined that Doctor Toolsie’s conclusions that the victim had been sexually

assaulted prior to her death and that she died as a result of shaken baby syndrome and blunt force

trauma to the abdomen had been reached in error.

According to Doctor Mileusnic-Polchan, Doctor Toolsie’s conclusion that the victim

suffered from shaken baby syndrome was based, in part, upon his finding that the victim had

suffered a subdural hemorrhage prior to her death. Doctor Mileusnic-Polchan explained, however,

that “[w]hat Dr. Toolsie described as a subdural hemorrhage was an autopsy artifact found in every

single autopsy,” rather than a true subdural hemorrhage. She elaborated, “What Dr. Toolsie is

describing is a leaking of the veins in the sinus that is found in 100% [of] autopsies, adults, babies,

regardless of the age.” Doctor Mileusnic-Polchan noted that leaking of the sinus veins occurs when

the dura, a tough fibrous membrane between the brain and skull that contains numerous blood

vessels, is separated from the brain during the autopsy. Doctor Mileusnic-Polchan testified that

because “we don’t have the first and the main prerequisite, and that’s a true, subdural hemorrhage,”

she was able to rule out shaken baby syndrome as a cause of death. Doctor Mileusnic-Polchan also

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noted that because Doctor Toolsie did not remove the victim’s eyes during the autopsy, there is no

“evidence of retinal hemorrhage . . . . which is [a] very important element of . . . shaken baby.” She

testified that the absence of a full body x-ray made it impossible to look for evidence of rib fractures,

a third important element of shaken baby syndrome. During cross-examination, Doctor Mileusnic-

Polchan explained that although there was evidence of cerebral edema, or swelling of the brain,

cerebral edema in this case is not an accurate indicator of shaken baby syndrome because it is also

found in drowning and because the edema was slight. In addition, marks on the victim’s neck that

Doctor Toolsie described as “pinch marks” were actually the result of the “interstitial tube being

secured with tape.”

Doctor Mileusnic-Polchan also ruled out blunt force abdominal trauma as a

contributing cause of the victim’s death because evidence of such injuries “does not exist” in the

autopsy photographs or slides taken by Doctor Toolsie. She stated that “what’s shown actually in

the picture as so-called damage is a continuous degradation of the small bowel . . . . which is [an]

artifact from post-mortem change, from resuscitation, . . . or so-called shock bowel.” She noted that

the “purplish” color of the bowel was not evidence of blunt force trauma and was instead a textbook

symptom of shock bowel. During cross-examination on this issue, Doctor Mileusnic-Polchan noted

that there was no contusion of the abdominal wall, which ruled out a diagnosis of blunt force

abdominal trauma. She explained, “You cannot contuse the bowel without causing contusion of the

abdominal wall.”

Doctor Mileusnic-Polchan concluded that “there is absolutely no documentation to

support sexual abuse” findings in this case. She testified that although there was some slight dilation

of the victim’s anus, the dilation was attributable to the normal, passive dilation of smooth muscle

tissue postmortem. She also noted that the victim’s medical records revealed a documented history

of chronic, severe constipation that was treated by the use of suppositories. Additionally, the sworn

statement from the victim’s mother confirmed that the victim had very hard stools and frequent

constipation. Doctor Mileusnic-Polchan stated that the photographs taken during the autopsy do not

show any evidence of sexual assault and instead show “a combination of lividity and diaper rash.”

She testified that photographs of the victim’s hymen show “no evidence of sexual abuse, recent or

remote.” During cross-examination, she stated that the photographs do not show any “fissures,

lacerations whatsoever.”

Doctor Mileusnic-Polchan testified that although “drowning is a hard diagnosis to

make,” it was her opinion that the victim had, in fact, drowned. She explained that the presence of

“tremendous edema,” detritus, and “vegetation[-]like matter” in the victim’s lungs confirmed a

diagnosis of drowning. She stated that Doctor Toolsie’s finding that there was no water in the

victim’s lungs at the time of autopsy did not rule out a diagnosis of drowning because in a “fresh

water drowning, the water is frequently, very quickly going to transfuse from the alveolar space into

the tissue” as a result of osmosis. She noted that Doctor Toolsie’s failure to weigh the lungs made

her diagnosis more difficult, but the microscopic slides of lung tissue did confirm the edema.

A letter from Doctor Bruce Levy, Chief Medical Examiner for the State of Tennessee,

confirmed the findings of Doctor Mileusnic-Polchan. Doctor Levy, who reviewed the case at the

request of the State, stated,

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Frankly, I am shocked by the opinions and conclusions of Dr. Toolsie

regarding the death of this child. In general, it shows a lack of

understanding of the definition of medical diagnoses, how these

pathologic diagnoses are made, and the ability to sort out injury from

artifact. Fortunately, Dr. Toolsie did perform a thorough autopsy and

documented the condition of the body with both gross photography

and preparation of microscopic slides. . . .

The first diagnosis is listed as “Evidence of blunt force trauma to

abdomen.” To support this diagnosis, Dr. Toolsie lists a contusion of

the ileum (a portion of the small intestines) and hemoperitoneum

(blood in the abdominal cavity). The photographic images that Dr.

Toolsie provided do[] not show a contusion of the intestines, but

instead represent[] ischemic change to this portion of the intestines.

The hemoperitoneum is not blood, but a serosanguinous fluid, which

is a type of fluid seen with this type of intestinal ischemia. The

microscopic slides provided also support a diagnosis of ischemic

change and not trauma. These findings would be consistent with the

reported history of a drowning and attempted resuscitation.

The second diagnosis is listed as “Evidence of shaken baby

syndrome.” Shaken Baby Syndrome (SBS) is defined as trauma to

the brain caused by violent shaking. The three major findings of SBS

are: [s]ubarachnoid and/or subdural hemorrhage, diffuse axonal

injury and retinal hemorrhages. None of these findings are present on

the autopsy of [the victim]. The findings Dr. Toolsie lists in his

autopsy report to support his diagnosis of SBS may be seen in victims

of SBS, but are so nonspecific and general as to be meaningless

without the three major findings listed above. There is some

evidence of slight cerebral edema (brain swelling), even though the

convolutions of the gyri remain basically rounded. This finding is

common in many different types of death, including drowning. The

“hemorrhage” adjacent to the superior sagittal sinus is artifact of the

removal of the skull and does not represent injury. The “pinch

marks” to the posterior neck could be an artifact of the medical

treatment, especially if an endotracheal tube or other apparatus was

taped down in this area. Even if this remains as an unexplained

injury, it has nothing to do with the diagnosis of SBS. Similarly[,]

pulmonary contusions or hemorrhage around the aorta and esophagus

have nothing to do with SBS. In fact, [the victim] did not have

pulmonary contusions, but had marked vascular congestion of the

lungs with alveolar hemorrhage, another common artifact in forensic

autopsies.

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The third diagnosis is listed as “Evidence of recent sexual assault.”

The listed swelling and erythema of the vulva appears most consistent

with post-mortem settling of blood, but might represent a mild diaper

rash. The injuries Dr. Toolsie notes to the clitoris, labia minor and

posterior hymen are not present on the photographic images he

provided or documented on the microscopic slides. The observed

“dilation” of the rectum is not normal, but is typical after death. This

reported irregularity also needs to be put into the context of an

intestinal disorder that has been treated with suppositories, something

it does not appear that Dr. Toolsie did as part of his investigation into

this death.

The contusions and abrasions of the forehead and lower extremities

(including the ankles) are minor and consistent with accidental

injuries in a normal toddler of this age.

The final diagnosis of “No anatomical evidence of drowning” is

misleading at best. There are no diagnostic pathologic or anatomic

findings of drowning. It is a common misconception that drowning

victims need to have water in the lungs or middle ear, and that the

lack of such water can lead to the conclusion that the person was dead

before being placed in the water. The reality is that drowning victims

can have “dry” lungs and that deceased bodies placed in water can

have “wet” lungs.

In conclusion, based on my review of this death, it is my opinion to

a reasonable degree of medical certainty that there is no physical

evidence from the autopsy to support the diagnoses of blunt force

trauma to the abdomen, shaken baby syndrome or recent sexual

assault. It is also my opinion to a reasonable degree of medical

certainty that the cause of death provided by Dr. Toolsie, “Cerebral

edema and intra-abdominal hemorrhage due to blunt force trauma

consistent with shaken baby syndrome,” is incorrect and is not

supported by the findings of the autopsy. Finally, based on my

review of the autopsy and the circumstances of this death it is my

opinion to a reasonable degree of medical certainty that [the victim]

most likely died as a result of drowning.

Rebecca Delashmitt, the defendant’s stepmother, testified that she saw the victim

every day and confirmed the victim’s history of chronic constipation and hard stools. She stated that

she had instructed the victim’s mother to give the victim an enema of warm water and dish soap on

more than one occasion. Ms. Delashmitt stated that she “had even taken [her] finger and dug it out

of [the victim] to relieve her constipation.”

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McMinn County attorney Randy Rogers testified that he was contacted by the

defendant’s family on Friday, June 20, 2003, and asked to visit the defendant in jail. Mr. Rogers

stated that he saw the defendant in the holding cell in the booking area of the jail, where he had been

held “for several hours at least,” and recalled that the defendant had not been told the charges against

him. Mr. Rogers testified that he spoke with the defendant for approximately 45 minutes and then

left to telephone Judge Steven Bebb about setting bond for the defendant. According to Mr. Rogers,

Judge Bebb set bond, and Mr. Rogers relayed this information to the defendant and his family. As

he was assisting the family in contacting a bondsman, the booking agent came in and told them that

the bond had been rescinded because more serious charges were likely to be added. Mr. Rogers

stated that he told the defendant that there was nothing more he could do on the bond issue and

instructed him to tell the detectives that he had a lawyer and would make no more statements outside

the presence of counsel. Mr. Rogers testified that he made it clear that he would represent the

defendant on an as-needed basis until the final charges were brought and a fee could be set. Mr.

Rogers stated that he expected to hear from the defendant over the weekend but did not. He testified

that as a general rule, individuals arrested over the weekend are arraigned on Monday morning at

9:00 a.m.

During cross-examination, Mr. Rogers testified that he had made a commitment to

represent the defendant during any interrogation. He stated, “I left there thinking that if [the

defendant] told the detectives and investigators at the sheriff’s department . . . that I represent him

and I wanted to be present, then they would have called me like they always did.”

Forensic Psychologist Doctor Gregory DeClue testified that at the request of the

defendant, he reviewed numerous documents and records associated with the investigation in this

case and interviewed the defendant on December 7, 2005. Doctor DeClue stated that he gave the

defendant tests to determine his amenability to coercion, his tendency for suggestibility, his ability

to understand written and oral communication, and the presence of any mental disease or defect.

Doctor DeClue also administered a test to determine the defendant’s level of effort on the other tests

in order to gauge the reliability of the tests. According to Doctor DeClue, the defendant’s full scale

IQ, as established by earlier testing, is 78, which is in the borderline range for mental retardation.

After establishing that the defendant was putting forth his best effort, that he was not “faking bad,”

and that he was not being dishonest with regard to the questions, Doctor DeClue determined that the

defendant reads at a third to sixth grade level and that his oral comprehension skills are at the

eleventh to twelfth grade level.

Doctor DeClue testified that during testing to determine his amenability to suggestion

or coercion, the defendant “yielded to the subtle pressure from the examiner to provide an answer

that [was] consistent to the question even though” it was not factually accurate. The defendant’s

answers “showed a strong tendency” to accept factual inaccuracies imbedded in the leading

questions. According to Doctor DeClue, testing also established that the defendant was considerably

more compliant with police interrogation than an average member of the population. Doctor DeClue

stated that “the combination of [the defendant’s] low reading ability and his significantly impaired

working memory . . . makes it very difficult for him to understand information that’s presented to

him in written form, or information that is read to him.” Doctor DeClue testified that the defendant’s

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difficulties in this area made it unlikely that the defendant understood any of the written waivers

presented to him during his interrogation. As a result, he opined, none of the waivers was voluntary.

Doctor DeClue also concluded that the defendant’s “was not a voluntary statement.”

He stated that because of his low IQ and ninth grade education, the defendant lived “a marginal

existence.” Doctor DeClue opined that the conduct of the law enforcement officers in this case led

to the defendant’s involuntary statement. Specifically, the defendant was held in isolation for more

than 90 hours and not informed of the charges against him, even when he asked. In addition, the

officers misled the defendant by telling him that DNA testing would not be possible once he was

arraigned and that he would be permitted to “bond out” after his arraignment. Doctor DeClue also

noted that the police contaminated the interview process by revealing the medical evidence to the

defendant and by telling the defendant that they believed he sexually assaulted the victim before

shaking her and placing her lifeless body in the pond. Doctor DeClue also concluded that, in

addition to being involuntary, the defendant’s statement was “not reliable” as a result of the police

conduct and the defendant’s tendency toward suggestibility. Finally, Doctor DeClue observed that

the defendant never actually made a “statement” but answered yes or no to a series of questions, the

majority of which were leading. To emphasize this point, Doctor DeClue created a list of all the

words uttered by the defendant during his statement. He also noted that, as a result of the question

and answer structure of the statement, many important details of the alleged killing were missing,

like how the victim’s body came to rest in the pond.

Former Assistant District Attorney General Amy Reedy testified that although she

did not prepare the waiver of arraignment in this case, she had suggested that one be done. Ms.

Reedy stated that she was not concerned with the timing of the defendant’s arraignment because she

did not think that “Rule 5 [of the Tennessee Rules of Criminal Procedure] would be important at all

in General Sessions Court” and that, as a result, she “would [not] have concerned [her]self with

Rules of Criminal Procedure” in the defendant’s case. Ms. Reedy testified that she had never

discussed the defendant’s case with Mr. Rogers.

By stipulation, the defense read into the record the preliminary hearing testimony of

McMinn County Sheriff’s Department Detective B.J. Johnson. According to Detective Johnson’s

testimony, he took a statement from the defendant at the hospital, and after the victim was declared

dead, he placed the defendant under arrest because the victim drowned while in his care and because

the defendant had been drinking. Detective Johnson stated that a warrant was issued in the early

morning hours of Friday, June 20, 2003, charging the defendant with criminally negligent homicide.

Tests conducted that night showed that the defendant had a blood alcohol level of .10 and that there

were no drugs in his system. Detective Johnson testified that the defendant was not arraigned on

June 20 because the investigation was ongoing. According to Detective Johnson, he became aware

sometime over the weekend that Mr. Rogers was representing the defendant but nevertheless

approached the defendant on Monday, June 23, 2003, for the purpose of interrogating him and

getting him to submit samples for DNA testing. Detective Johnson told the defendant that Mr.

Rogers had informed the District Attorney’s Office that he was no longer representing the defendant

because the defendant could not afford to retain him. The transcript of the Monday morning

interview contains the following statement by Detective Johnson to the defendant:

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[W]hen you mentioned Randy the other night - Randy Rogers -

That’s - We couldn’t talk to you no more. But then Randy was

talking to the D.A.s and, I guess, you know, I don’t know how much

money he wanted or something, but there was a money problem. So

he said he couldn’t represent you . . . .

During the Monday morning interview, Detective Johnson informed the defendant that he would be

taken to court before 2:00 p.m. for an arraignment. During this same interview, Lieutenant Fred

Schultz informed the defendant that bond would be set that afternoon.

Testimony from McMinn County Sheriff’s Department Detective Gary Miller

established that some items were seized from the defendant’s residence before the victim’s mother

gave consent to search the residence.

State’s Proof

TBI Agent Barry Brakebill testified that he learned of the victim’s death from Ms.

Reedy and went to the hospital “strictly . . . for the examination of the victim.” Agent Brakebill

stated that he remained at the hospital for approximately 45 minutes before traveling to the sheriff’s

department to interview the victim’s mother, who reported that she had been working at the time of

the incident. After the interview, Agent Brakebill went to the Delashmitt residence, where he

assisted in a brief search. Agent Brakebill testified that the defendant was arrested at the hospital

and charged that evening with criminally negligent homicide based on evidence that he had fallen

asleep while the victim was in his care. According to Agent Brakebill, an autopsy conducted the

following day established that the victim had been sexually assaulted and that there was no water

in her lungs, which he interpreted to mean that the victim “was already dead prior to going into the

water.” Agent Brakebill testified that he did not work over the weekend but returned to the sheriff’s

department on Monday morning and suggested that the defendant be given a polygraph examination.

According to Agent Brakebill, after he learned that a polygraph examination could not be conducted

until the late afternoon, he telephoned the general sessions court judge, who told him that the

defendant must be brought in for arraignment by 2:00 p.m. unless he executed a waiver of

arraignment. Agent Brakebill stated that he contacted the District Attorney’s office for preparation

of the waiver, which he later explained to the defendant just prior to the polygraph examination.

According to Agent Brakebill, after the polygraph examination, Detective Johnson went into the

room and took a statement from the defendant. After the written statement was obtained, Agent

Brakebill made a videotape recording of his discussing the written statement with the defendant.

During cross-examination, Agent Brakebill admitted that the defendant was not taken

for an arraignment because the investigation was ongoing. He acknowledged that the defendant was

held in the holding cell in the booking area of the jail from the time of his arrest until the time of the

polygraph examination. Agent Brakebill conceded that he knew prior to the defendant’s giving the

inculpatory statement that he was represented by Mr. Rogers. He also conceded telling the defendant

that his arraignment would “have to” be postponed in order to do the polygraph examination.

Finally, Agent Brakebill admitted that the statement obtained by Detective Johnson was written

entirely by Detective Johnson.

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TBI Agent Malcolm Elrod, who administered the defendant’s polygraph examination,

testified that he was initially contacted by Agent Brakebill on the morning of June 23, 2003. He

testified that, prior to conducting the examination, he administered Miranda warnings to the

defendant, asked him to supply biographical information, and rehearsed the questions to be used

during the examination. According to Agent Elrod, the examination is scored by “looking at the

physical reactions that are occurring in the body when . . . a reviewed set of questions” is asked.

Agent Elrod testified that the examination took place in the training room of the McMinn County

Sheriff’s Department, which was a large room with several windows, a chalk board, chairs, and

tables. He recalled that although Agent Brakebill was present during the preliminary portion of the

examination, only he and the defendant were present during the actual examination. Agent Elrod

remembered that Agent Brakebill asked the defendant to sign a “Waiver of Arraignment” just before

the polygraph examination began.

Agent Elrod testified that he actually administered two tests, “one asking questions

about whether or not he had sexually abused the baby, and another test of whether or not he’d had

anything to do with causing injury or death of the baby.” According to Agent Elrod, the “test about

the sexual abuse” was inconclusive and the second test established that the defendant “was practicing

deception about causing harm or the death of the baby.” Agent Elrod stated that “after we talked for

a bit, [the defendant] stated that he had in fact had sex with the baby and had in fact killed the baby.”

During cross-examination, Agent Elrod testified that he used the polygraph

examination as an investigative tool in this case and that, as per TBI general policy, he did not record

the examination. He stated that the examination period began at 3:35 p.m. and was finished before

5:00 p.m., with the preliminary portion taking the bulk of the time. Agent Elrod conceded that he

interrogated the defendant for two hours after the conclusion of the polygraph examination before

the defendant made any admission of wrongdoing. He admitted, however, that the defendant did not

actually admit to killing the victim and, instead, admitted only to shaking her. Agent Elrod stated

that he “knew” prior to administering the polygraph examination that the defendant had sexually

assaulted and shaken the victim before placing her in the pond. Agent Elrod acknowledged that he

told the defendant that he did not believe that the defendant was innocent and also admitted using

leading questions to obtain the defendant’s statement. Finally, Agent Elrod conceded that the

defendant’s statement contains little detail of the alleged offenses and no actual admission of killing.

In an extremely thorough written order filed after the conclusion of the hearing, the

trial court suppressed the defendant’s statement, concluding that law enforcement officers had

violated the defendant’s constitutional and statutory protections. The trial court found that the

defendant was held in isolation in the holding cell in the booking area “from late Thursday night

until Monday evening and that the only person he had contact with other than law enforcement

officers was his one visit with Mr. Rogers.” The court expressly accredited the testimony of Mr.

Rogers that “he left the impression with the defendant and the defendant’s family that he would

represent the defendant during any preliminary matters and that he should be contacted before

anyone spoke with the defendant.” The trial court found “that the defendant had unambiguously

requested counsel prior to the time he was approached by the officers for questioning.” The court

observed that “Officer Johnson’s own statements are clear that he not only understood from the

defendant’s own statements that he had requested counsel but also knew that he could not talk to the

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defendant because the defendant had unambiguously requested counsel when approached by the

officer” and that the recording of Detective Johnson’s Monday morning conversation with the

defendant establishes that the defendant had requested counsel “at some point over the weekend.”

The trial court found “that the authorities were the ones who informed the defendant that Mr. Rogers

was no longer his attorney and that this was done in an attempt to talk to him further. These actions

are what subsequently resulted in the statements from the defendant.” The court also found “that

there is no credible evidence that the defendant initiated the additional questioning.” The court

concluded that “the defendant’s right to counsel was violated under both the Fifth and Sixth

Amendments of the United States Constitution.”

The trial court also determined that the defendant’s right to be free from unreasonable

seizure and his statutory right to a timely judicial determination of probable cause were violated by

the excessive detention prior to arraignment. The court found, “It is clear in the record that the

defendant had asked what he was being charged with and had not received an answer, despite the

fact that he had been in custody for approximately 85 hours.” Regarding the “Waiver of

Arraignment” executed by the defendant before the polygraph examination, the trial court found that

the waiver “said very little, was signed well after the defendant should have been in court, and was,

in this court’s opinion, invalid based upon the invocation of the defendant’s right to counsel, which

had already been violated.” The court further found that “[t]he officers candidly admitted that the

case against the defendant was investigated and built during the time he was being held in custody”

and that “the police action was purposeful” rather than the result of inadvertence or oversight. The

court determined that the defendant was not arraigned until “well over 100 hours after he was first

taken into custody.” The court also noted that although the arrest warrant states that it was served

on Monday, June 23, 2003, it was not signed by the judicial officer until the following day. The trial

court found, “Based upon all the evidence presented, . . . the totality of the circumstances and factors

weigh in favor of the suppression of the statement . . . .”

Review and Adjudication

In this appeal, the State contends that the trial court erred by suppressing the

defendant’s statement because “the defendant’s confession was voluntary and not the result of

unnecessary delay.” The defendant submits that the trial court properly suppressed the statement.

At the suppression hearing, the State has the burden of demonstrating by a

preponderance of the evidence that the defendant’s statements were voluntarily, knowingly, and

intelligently given. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). The trial court is the trier of

fact, and its factual findings are binding upon this court unless the evidence contained in the record

preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v. Daniel, 12

S.W.3d 420, 423 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); State v. Aucoin, 756

S.W.2d 705, 710 (Tenn. Crim. App. 1988). Under this standard, matters regarding the credibility

of witnesses, the weight and value to be afforded the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial court as the trier of fact. Odom, 928 S.W.2d at 23. The

party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced

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at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from

the evidence. Id.; Daniel, 12 S.W.3d at 423. The State, as the appealing party, bears the burden of

establishing that the evidence preponderates against the finding of the trial court. Odom, 928 S.W.2d

at 23; State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984); State v. Harts, 7 S.W.3d 78, 84 (Tenn.

Crim. App. 1999). We review the State’s claim with these standards in mind.

We also review the issue presented with these well-settled general principles in mind.

A confession must be free and voluntary, and it must neither be extracted by any sort of threats or

violence nor obtained by any direct or implied promises, nor by the exertion of any improper

influence or police overreaching. Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187

(1897). The issue of voluntariness requires the trial judge to focus on whether the accused’s will to

resist making a confession was overborne. Kelly, 603 S.W.2d at 728. When considering the

voluntariness of a confession, this court must examine the totality of the circumstances surrounding

the confession to determine “‘whether the behavior of . . . law enforcement officials was such as to

overbear [the defendant’s] will to resist and bring about confessions not freely self-determined.’”

Kelly, 603 S.W.2d at 728 (quoting and adopting the standard set forth in Rogers v. Richmond, 365

U.S. 534, 544, 81 S. Ct. 735, 741 (1961)).

I. Right to Counsel under the Fifth and Sixth Amendments

The Fifth Amendment to the United States Constitution provides that “no person .

. .shall be compelled in any criminal case to be a witness against himself .” U. S. Const. amend. V;

see also Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964) (holding “the Fifth

Amendment’s exception from compulsory self-incrimination” applicable to the states through the

Fourteenth Amendment). Similarly, Article I, section 9 of the Tennessee Constitution provides that

“in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against

himself.” Tenn. Const. art. I, § 9. “Encompassed within these constitutional provisions is the right

to counsel, which is applicable whenever a suspect requests that counsel be present during

police-initiated custodial interrogation.” State v. Saylor, 117 S.W.3d 239, 244 (Tenn. 2003).

When there is an unequivocal request for an attorney, all interrogation must cease,

unless the suspect himself initiates further conversation with the police. Edwards v. Arizona, 451

U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981); State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.

1994). “[W]hen an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established by showing only that he responded

to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards,

451 U.S. at 484, 101 S. Ct. at 1884-85. The determination whether the accused made a request for

an attorney, equivocal or unequivocal, is a question of fact for the trial court to determine. State v.

Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996).

The Sixth Amendment to the United States Constitution guarantees that, “in all

criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his

defense.” U.S. Const. amend VI. A defendant has the right to counsel at all “‘critical’ stages in the

criminal justice process’ where the results might well settle the accused’s fate and reduce the trial

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itself to a mere formality.’” Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 484 (1985)

(quoting United States v. Wade, 388 U.S. 218, 224, 87 S. Ct. 1926, 1931 (1967)). The right to

counsel embodied in the Sixth Amendment, however, “‘attaches only at or after the initiation of

adversary proceedings against the defendant . . . . whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.’” United States v. Gouveia, 467 U.S. 180, 187-88,

104 S. Ct. 2292, 2297 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 1881-

82 (1972)). This interpretation comports with the underlying purposes of the Sixth Amendment:

That interpretation of the Sixth Amendment right to counsel

is consistent not only with the literal language of the Amendment,

which requires the existence of both a “criminal [prosecution]” and

an “accused,” but also with the purposes which we have recognized

that the right to counsel serves. We have recognized that the “core

purpose” of the counsel guarantee is to assure aid at trial, “when the

accused [is] confronted with both the intricacies of the law and the

advocacy of the public prosecutor.”

Id. at 188-89 (quoting United States v. Ash, 413 U.S. 300, 309, 93 S. Ct. 2568, 2573 (1973)). In

Tennessee, an arrest warrant, or a preliminary hearing if no arrest warrant precedes the hearing, or an

indictment or presentment when the charge is initiated by the grand jury, marks the initiation of

criminal charges after which the Sixth Amendment right to counsel attaches. State v. Mitchell, 593

S.W.2d 280, 286 (Tenn. 1980).

In this case, the defendant was arrested at the hospital sometime after 9:00 p.m. on

June 19, 2003, and served with an arrest warrant charging him with criminally negligent homicide

sometime in the early morning hours of June 20, 2003. The issuance of the arrest warrant on June

20, 2003, marked the initiation of formal charges in this case and also marked the attachment of the

Sixth Amendment right to counsel. In addition, the trial court found, and the record confirms, that

the defendant made a request for counsel at some point over the weekend when confronted by

Detective Johnson. Contrary to the State’s assertion that “the trial court did not point to any statement

that could reasonably be construed to constitute unequivocal or unambiguous invocations of [the

defendant’s] right to silence or his right to an attorney,” the trial court highlighted the statements

made by Detective Johnson during his recorded conversation with the defendant on Monday June 23,

2003. During that conversation, Detective Johnson made it “clear that he not only understood from

the defendant’s statements that he had requested counsel but also knew that he could not talk to the

defendant because the defendant had unambiguously requested counsel when approached by the

officer” over the weekend. We agree that Detective Johnson’s statements establish that he had

attempted to question the defendant sometime between Friday and Monday and that the defendant had

indicated, at that time, that he was represented by Mr. Rogers. This finding dovetails with the trial

court’s finding that Mr. Rogers told the defendant he would represent him during any interrogation

and instructed him to refuse any further questioning outside the presence of counsel. Accordingly,

the defendant’s right to counsel under the Fifth Amendment attached at some point prior to the

morning of June 23, 2003.

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Because the right to counsel had attached, only the defendant could have

constitutionally initiated any further interrogation. See Edwards, 451 U.S. at 484-85, 101 S. Ct. at

1884-85. That did not happen in this case. The record is clear, and the trial court so found, that it was

Detective Johnson who initiated the Monday morning interview with the defendant. At that point,

Detective Johnson asked the defendant questions and requested that he provide samples for DNA

testing. Equally clear in the record is that Detective Johnson was the person who told the defendant

that he no longer had the benefit of counsel. Detective Johnson’s interrogation of the defendant after

being made aware that the defendant was represented by Mr. Rogers and wished to have Mr. Rogers

present during any interrogation was unconstitutional. The detective’s deliberately informing the

defendant that he was without counsel for the purpose of obtaining a statement from him is

egregiously unconstitutional. Clearly, the interrogation period that began on the morning of June 23,

2003, and culminated in the defendant’s giving of an inculpatory statement violated the defendant’s

right to counsel under both the Fifth and Sixth Amendments to the United States Constitution.

The State makes much of the fact that the defendant signed a waiver of his Miranda

rights prior to taking the polygraph examination in this case and contends that this waiver was

sufficient to waive the defendant’s right to counsel under both the Fifth and Sixth Amendments.

However, the State’s argument again overlooks the fact that it was Detective Johnson who initiated

the further questioning that preceded the Miranda waiver and polygraph examination. The trial court

specifically found that “there [was] no credible evidence that the defendant initiated the additional

questioning.” Because the Miranda waiver executed prior to the polygraph examination, the only one

executed after the defendant had invoked his right to counsel, was itself born of the violation of the

defendant’s right to counsel, it is invalid. The Supreme Court, in Michigan v. Jackson, 475 U.S. 625,

106 S. Ct. 1404 (1986), held that an admonition and waiver of Miranda rights “could not establish

a valid waiver” after there had been a request for counsel, explaining that “just as written waivers are

insufficient to justify police-initiated interrogations after the request for counsel in a Fifth

Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the

request for counsel in a Sixth Amendment analysis.” Id. at 635, 106 S. Ct. at 1410-11. The Court

observed, “Edwards is grounded in the understanding that ‘the assertion of the right to counsel [is]

a significant event,’and that ‘additional safeguards are necessary when the accused asks for counsel.’”

Id. at 636, 106 S. Ct. at 1411 (quoting Edwards, 451 U.S. at 484, 485, 101 S. Ct. at 1884, 1885).

In sum, the defendant’s right to counsel under both the Fifth and Sixth Amendments

was violated when officers approached him on June 23, 2003, and asked him to talk to them about

the case and to provide samples for DNA testing. Further, the Miranda waiver signed by the

defendant before the polygraph examination was the direct result of the violation of the defendant’s

right to counsel and was invalid. Finally, because the defendant’s statement was obtained in violation

of his right to counsel, it must be suppressed, regardless of whether it was voluntarily given.

II. Unreasonable Delay and the Fourth Amendment

The State also contends that the trial court should not have excluded the defendant’s

statement as violative of either the Fourth Amendment of the United States Constitution or Rule 5

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of the Tennessee Rules of Criminal Procedure because the statement was voluntarily given. The

defendant asserts that the trial court correctly ruled that the inordinate delay in taking the defendant

to be arraigned justifies the exclusion of the statement under both the Fourth Amendment and Rule

5. We agree with the defendant.

A. Rule 5

Rule 5 of the Tennessee Rules of Criminal Procedure provides that “[a]ny person

arrested-except upon a capias pursuant to an indictment or presentment-shall be taken without

unnecessary delay before the nearest appropriate magistrate.” Tenn. R. Crim. P. 5(a)(1). In State v.

Huddleston, 924 S.W.2d 666 (Tenn. 1996), our supreme court observed that “incarceration for any

period of time is inherently coercive,” id. at 670, and that “the intimidating environment [created by

incarceration] is no doubt exacerbated” by unnecessary delay in taking the accused before a

magistrate, id. Rule 5 is designed to protect the accused’s right to a prompt judicial determination

of probable cause. A violation of this rule, however, does not necessarily require the exclusion of the

defendant’s statement. Id. at 670. Instead, a statement will be excluded “only if an examination of

the totality of the circumstances reveals that the statement was not voluntarily given.” Id. The

circumstances to be examined include:

“[T]he age of the accused; his lack of education or his intelligence

level; the extent of his previous experience with the police; the

repeated and prolonged nature of the questioning; the length of the

detention of the accused before he gave the statement in question; the

lack of any advice to the accused of his constitutional rights; whether

there was an unnecessary delay in bringing him before a magistrate

before he gave the confession; whether the accused was injured,

intoxicated or drugged, or in ill health when he gave the statement;

whether the accused was deprived of food, sleep or medical attention;

whether the accused was physically abused; and whether the suspect

was threatened with abuse.”

Id. at 671 (quoting People v. Cipriano, 429 N.W.2d 781, 790 (Mich. 1988)). “[T]he focus on

unnecessary delay should not be solely on the length of the delay, but rather on the circumstances

of the delay and their effect on the accused.” Id. The length of the delay is nevertheless a significant

factor in determining the voluntariness of a confession. Id.

Here, the 33-year-old defendant was arrested shortly before midnight on June 19,

2003, and was not arraigned until June 24, 2003. After his arrest, authorities placed the defendant

in a small holding cell inside the booking area of the jail, where he was held until being taken to the

training room for the polygraph examination. The trial court accredited testimony that the holding

cell was continuously lit, making it difficult for the defendant to sleep, and that there were no

windows or other outlet by which the defendant could mark the passage of time. The defendant was

not permitted to shower or otherwise leave the area. During the detention, the defendant’s only non-

law enforcement visitor was Mr. Rogers. The trial court accredited the testimony of Doctor DeClue

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that the defendant had an IQ of 78, which is borderline mentally retarded, and that he was especially

susceptible to suggestion. The court also accredited Doctor DeClue’s testimony that the defendant’s

poor working memory, substandard reading skills, and ninth grade education made it unlikely that

he understood the waivers of his Miranda rights and arraignment. The record supports the trial

court’s conclusion that “the case against the defendant was investigated and built during the time he

was being held in custody.” Although the defendant been arrested previously, he had never faced

charges of the magnitude of those in this case. Upon our examination of these factors, we agree with

the trial court that “the totality of the circumstances and factors weigh in favor of the suppression

of the statement under Rule 5 of the Tennessee Rules of Criminal Procedure.”

The State points to the various waivers executed by the defendant as indicative of the

voluntariness of his statement. As we have previously indicated, however, the waivers executed

immediately prior to the polygraph examination were obtained in violation of the defendant’s right

to counsel under both the Fifth and Sixth Amendments and, as a result, did not operate as valid

waivers. Similarly, the trial court found that the “Waiver of Arraignment” signed by the defendant

“said very little, was signed well after the defendant should have been in court, and was . . . invalid

based upon the invocation of the defendant’s right to counsel, which had already been violated.”

The record supports this conclusion. The waiver states, in its entirety, “You have the right to an

arraignment within a reasonable time period. I hereby waive my arraignment until June 24, 2003.”

The document contains no explanation of either the terms “arraignment” or “reasonable time period.”

In addition, there is no evidence that the defendant was told that he should have been taken for an

arraignment nearly two hours before he signed the document. “A waiver is ordinarily an intentional

relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458,

464, 58 S. Ct. 1019, 1023 (1938)); see also State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003). In

this case, the State has failed to establish that the defendant intentionally relinquished a known right.

As such, it is our view that the “Waiver of Arraignment” had no effect on the voluntariness of his

statement.

The State also contends that “the defendant’s own desire to show his innocence and

take a polygraph examination caused the delay” in this case. This assertion is simply not supported

by the record. The record is clear that it was Agent Brakebill who suggested that the defendant take

a polygraph examination and that it was Agent Brakebill who directed the creation of the “Waiver

of Arraignment” in this case. In addition, it was Agent Brakebill who told the defendant that he

could only take the polygraph examination if he waived his arraignment. Neither Agent Brakebill

nor Agent Elrod provided any explanation for why the polygraph examination could not have been

conducted after the defendant’s arraignment. The State’s brief is similarly devoid of any explanation

for why the taking of the polygraph examination necessitated the delay in arraignment.

B. The Fourth Amendment

In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975), the Supreme Court held that

“the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to

extended restraint of liberty following arrest,” id. at 114, 95 S. Ct. at 863, and that “this

determination must be made by a judicial officer either before or promptly after arrest,” id. at 125,

95 S. Ct. at 869. Sixteen years later, the Court concluded that “it is not enough to say that probable

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cause determinations must be ‘prompt.’ This vague standard simply has not provided sufficient

guidance.” County of Riverside v. McLaughlin, 500 U.S. 44, 55-56, 111 S. Ct. 1661, 1669 (1991).

The Court ruled “that a jurisdiction that provides judicial determinations of probable cause within

48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.”

Id. at 56, 111 S. Ct. at 1670. The Court held that delays in excess of 48 hours will require more

scrutiny:

Where an arrested individual does not receive a

probable cause determination within 48 hours, the calculus changes.

In such a case, the arrested individual does not bear the burden of

proving an unreasonable delay. Rather, the burden shifts to the

government to demonstrate the existence of a bona fide emergency or

other extraordinary circumstance. The fact that in a particular case it

may take longer than 48 hours to consolidate pretrial proceedings

does not qualify as an extraordinary circumstance. Nor, for that

matter, do intervening weekends. . . .

Id. at 57, 111 S. Ct. at 1670.

In this case, the delay between the defendant’s arrest on June 19, 2003, and his

arraignment on June 24, 2003, far exceeded the 48 hour period approved in Gerstein. Accordingly,

the burden is on the State to establish “a bona fide emergency or other extraordinary circumstance.”

The State correctly points out that the defendant was served with an arrest warrant charging him with

criminally negligent homicide on June 20, 2003, and that, as a general rule, “the issuance of a valid

arrest warrant satisfies the requirement that there must be a judicial determination of probable cause

for extended detention.” State v. Carter, 16 S.W.3d 762, 766 (Tenn. 2000) (citing Baker v.

McCollan, 443 U.S. 137, 143, 99 S. Ct. 2689, 2694 (1979)). The record establishes, however, that

the issuance of the criminally negligent homicide warrant was not the cause of the extended

detention in this case. Indeed, after Mr. Rogers successfully secured a bond on that warrant,

Detective Johnson telephoned the judge and asked that the bond be rescinded pending “issuance of

an additional warrant.” As the trial court found, the “officers candidly admitted that the case against

the defendant was investigated and built during the time he was being held in custody.” Both Agent

Brakebill and Detective Johnson testified that they expected to charge the defendant with a more

serious crime after the autopsy was conducted on Friday. Nevertheless, the warrant charging the

defendant with first degree murder was not served on the defendant until June 23, 2003, and not

signed by a judicial officer until June 24, 2003. The State offers no evidence of “a bona fide

emergency or other extraordinary circumstance” to justify the delay in this case. The State does

assert, however, that the defendant’s statement is nevertheless admissible because it “was

sufficiently of his free will that it should not be suppressed.”

In Huddleston, our supreme court emphasized that “[t]he voluntariness test is not the

proper vehicle for analyzing whether a Fourth Amendment violation requires suppression of a

statement” because that test “is designed to protect the Fifth Amendment right against

self-incrimination by excluding a statement that is obtained as a result of coercion by law

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enforcement officials” and “does not address the interests implicated by a Fourth Amendment

violation.” Huddleston, 924 S.W.2d at 673-74. Instead, the State must establish not only “that the

statement meet[s] the Fifth Amendment standard of voluntariness but that it [is] sufficiently an act

of free will to purge the primary taint” of the Fourth Amendment violation. Id. at 674; see also

Brown v. Illinois, 422 U.S. 590, 598, 95 S. Ct. 2254, 2259 (quoting Wong Sun v. United States, 371

U.S. 471, 486, 83 S. Ct. 407, 416 (1963)) (holding that when considering whether a statement

obtained in violation of the Fourth Amendment must be suppressed, the question is “whether [the

statement] ‘was sufficiently an act of free will to purge the primary taint of the unlawful invasion.’”).

The Supreme Court concluded that no single factor is determinative, instead

examination of several factors is necessary to determine if the confession was an act of the accused’s

free will:

The Miranda warnings are an important factor, to be sure, in

determining whether the confession is obtained by exploitation of an

illegal arrest. But they are not the only factor to be considered. The

temporal proximity of the arrest and the confession, the presence of

intervening circumstances, and, particularly, the purpose and

flagrancy of the official misconduct are all relevant. The

voluntariness of the statement is a threshold requirement. And the

burden of showing admissibility rests, of course, on the prosecution.

Brown, 422 U.S. at 603-04, 95 S. Ct. at 2261-62 (citations omitted).

As to the threshold question of voluntariness, we have already determined that the

defendant’s statement was not voluntarily given. Because the State has failed to meet the threshold

requirement, it has failed to establish that the defendant’s confession is admissible despite the Fourth

Amendment violation.

Considering nevertheless the other factors, the record establishes that although the

defendant was given Miranda warnings on more than one occasion, only the admonition and waiver

signed just prior to the polygraph examination preceded an inculpatory statement by the defendant.

Moreover, we have determined that the waiver was invalid based upon the violation of the

defendant’s Fifth and Sixth Amendment right to counsel. The record supports the trial court’s

conclusion that this factor weighs in favor of the defendant.

Regarding the temporal proximity of the arrest and the statement, the record

establishes that the defendant signed the statement written by Detective Johnson approximately 90

hours after he had been arrested. The defendant was not arraigned until the following morning,

nearly 100 hours after his arrest. We agree with the trial court that this factor weighs in favor of the

defendant.

The State insists that the defendant’s visit with Mr. Rogers constitutes an intervening

circumstance sufficient to purge the taint of the delay. We disagree. Nothing in the record suggests

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that the defendant’s brief visit with Mr. Rogers in any way purged the taint of the delay. To the

contrary, the defendant’s visit from Mr. Rogers exacerbated the taint of the delay because the

officers used the information that the defendant had visited with Mr. Rogers against him. Detective

Johnson told the defendant that Mr. Rogers had declined to represent him because the defendant was

unable to pay a fee. The detective then preyed on the defendant’s belief that he was without the

benefit of counsel in order to obtain an inculpatory statement from him. The State also suggests that

the polygraph examination was an intervening circumstance because “the defendant voluntarily

chose to postpone his arraignment so that he could” take the test. The record establishes, however,

that Agent Brakebill suggested that the defendant take the polygraph examination and told the

defendant that he would be required to waive his arraignment in order to do so. In addition, we have

already determined that the defendant’s waiver of his arraignment was invalid.

The State also contends that “[t]here is no evidence that the defendant in this case was

held for the purpose of gathering additional evidence.” The record belies this statement. Agent

Brakebill candidly admitted that the defendant was not taken for an arraignment because the

investigation was ongoing and that he expected that additional charges would be added after the

victim’s autopsy. Similarly, Detective Johnson admitted that he asked Judge Bebb to rescind the

defendant’s bond to ensure that he was held pending charges he believed would be added after the

victim’s autopsy. We agree with the trial court “that the police action was purposeful.”

Accordingly, this factor weighs in favor of the defendant.

Because each of the factors weighs in favor of the defendant, the State has failed to

establish that the defendant’s statement was sufficiently attenuated from the Fourth Amendment

violation to support its admissibility. In consequence, the trial court properly suppressed the

statement.

CONCLUSION

The State has failed to establish that the evidence preponderates against the findings

of fact made by the trial court. To the contrary, the record amply supports each of the factual

findings. Further, the record mandates the suppression of the defendant’s statement on a number of

grounds. First, the record clearly establishes that the statement was obtained in violation of the

defendant’s right to counsel under both the Fifth and Sixth Amendments. In addition, the statement

was obtained in violation of the defendant’s right to a prompt judicial determination of probable

cause under both Rule 5 of the Tennessee Rules of Criminal Procedure and the Fourth Amendment.

The State has failed to establish that the statement is admissible despite these violations.

Accordingly, the judgment of the trial court suppressing the defendant’s statement is affirmed.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

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