State of Tennessee v. Joseph Ray Daniels

01/06/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 8, 2024 Session

STATE OF TENNESSEE v. JOSEPH RAY DANIELS

Appeal from the Circuit Court for Dickson County

No. 22CC-2018-CR-263 David D. Wolfe, Judge

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No. M2023-00158-CCA-R3-CD

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The Defendant, Joseph Ray Daniels, confessed to the beating death of his five-year-

old son, Joseph Clyde Daniels III, and was convicted by a jury of second-degree murder,

first-degree felony murder, aggravated child abuse, making a false police report, and

tampering with evidence. He subsequently received an effective sentence of life

imprisonment.1 In this appeal, the Defendant argues the trial court erred in denying his

motion to suppress his confession (1) because the State failed to corroborate his

extrajudicial confession under the modified trustworthiness standard outlined in State v.

Bishop, 431 S.W.3d 22 (Tenn. 2014), and (2) because his post-polygraph video recorded

statement was obtained by law enforcement through coercive interrogation techniques

including an express promise of leniency. The Defendant also argues the trial court abused

its discretion in failing to exclude as hearsay utterances by the victim’s three-year-old

brother, “Joe dead, Joe dead, Joe dead,” and the response of his aunt, “Yes baby, Joe dead;”

and in failing to exclude as not relevant and unfairly prejudicial Facebook messages his

wife exchanged with a paramour leading up to the victim’s death. We affirm.

Tenn R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;

Remanded for Entry of Corrected Judgment

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, and JOHN W. CAMPBELL, SR., JJ., joined.

M. Todd Ridley and Brennan M. Wingerter, Assistant Public Defenders – Appellate

Division (on appeal); William B. Lockert, District Public Defender, and Matt Mitchell and

Drew Taylor, Assistant Public Defenders (at trial), for the appellant, Joseph Ray Daniels.

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The judgment form for count one erroneously reflects the Defendant was convicted of first-degree

murder. We acknowledge that count one merged into count two of felony murder; however, we remand

for entry of corrected judgment to reflect the conviction offense of second-degree murder.

Jonathan Skrmetti, Attorney General and Reporter; Garrett D. Ward, Senior Assistant

Attorney General; Ray Crouch, District Attorney General; and Josh Turnbow, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Sometime after going to bed on April 3, 2018, the victim, the Defendant’s

developmentally delayed five-year-old son, urinated on the floor of his grandfather’s

bedroom. When the victim’s eight-year-old brother, Alex Nolan (“Alex”), alerted the

Defendant, the Defendant beat the victim, and the two boys went back to bed. Later that

night, Alex was awoken by a loud bang that “sounded like a thump.” He went to the living

room and saw the victim lying on the ground with the Defendant standing over him. The

Defendant had beaten the victim, picked him up, and carried him out the door. Alex never

saw the victim alive again. At around 6:20 the next morning, the Defendant reported the

victim missing. Later that day, in the presence of an officer, the victim’s three-year-old

brother, Noah Daniels (“Noah”), uttered, “Joe dead, Joe dead, Joe dead,” and the victim’s

aunt, Joyce Austin (Aunt Joyce), responded, “Yes baby, Joe dead.” Two days later, after

providing law enforcement with various statements, the Defendant confessed to beating

the victim to death, dumping his body, and named Alex as an eyewitness. Despite massive

law enforcement and volunteer efforts, the victim’s body was never recovered.

Subsequent investigation revealed that the Defendant’s wife exchanged a series of

sexually explicit Facebook messages with a former sexual partner in the weeks leading up

to the victim’s death. Based on these messages, the State theorized the Defendant either

lost control while punishing the victim or killed the victim, for whom his wife received and

relied on financial support from the State, to prevent his wife from leaving him. On June

7, 2018, a Dickson County Grand Jury charged the Defendant with five offenses via

presentment: first-degree premeditated murder (count one), first-degree felony murder

(count two), aggravated child abuse (count three), making a false police report (count four),

and tampering with evidence (count five).

The record in this case is extensive, and we summarize the evidence adduced at the

Defendant’s June 3-12, 2021 jury trial as relevant to the issues raised in this appeal. Law

enforcement arrived at the Defendant’s home approximately ten minutes after the

Defendant reported the victim missing. Shortly thereafter, Detective Sarah McCartney of

the Dickson County Sheriff’s Office (“DCSO”) spoke with Alex, who told her he “didn’t

really know what happened” other than that the victim “had an accident during the night

and had urinated in [sic] the floor.” Around six hours after the Defendant reported the

victim missing, the Defendant asked to have the trunk of his car searched. Sergeant Trevor

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Daniel searched the trunk, which was empty, but later testified it was odd that the

Defendant had waited so long to request the search. Later that afternoon, as two officers

were filling out a “Lost Person Questionnaire” with Aunt Joyce in the living room, Noah

barged in and “stated or asked, ‘Joe dead, Joe dead, Joe dead.’” Aunt Joyce immediately

replied, “Yes baby, Joe dead.” The two officers looked at each other but said nothing

before continuing the questionnaire. A third officer overheard the exchange but could not

see Noah or Aunt Joyce. No one followed up with them to discuss their comments.

Law enforcement officers were initially unable to interview the Defendant because

the Defendant drove off shortly after they arrived at his house and did not return for nearly

two-and-a-half hours. The Defendant later said he was looking for the victim. The

Defendant subsequently provided four statements to law enforcement.

Sergeant Daniel took the Defendant’s first statement after he returned from his drive

the morning the victim was reported missing. The Defendant said he woke up around 5:30

a.m. and “went to the boys’ bedroom to get Alex and [the victim’s] clothes.” When he

noticed the living room coffee table was rotated 90 degrees from its normal position, “he

looked immediately at the [backdoor padlock] and noticed it was gone.” The Defendant

said he then noticed the victim was missing. After Sergeant Daniel searched the

Defendant’s trunk, Detective McCartney asked the Defendant if he could show her where

he went when he drove off to search for the victim. The Defendant agreed to ride along

with her and another detective. He gave his second statement during the ride-along, the

audio of which was recorded and later transcribed. The State entered the transcription into

evidence during Detective McCartney’s direct examination.

In his second statement, the Defendant said the victim had a propensity to leave the

house unsupervised but had never made it farther than the house across the street. The

Defendant said, “[I]t’s something about [the victim] that he just wants to escape.” For this

reason, the family blocked the front door from the inside with a large hutch and installed a

latch at the top of the back door to keep it locked from the inside with a padlock. The

Defendant said he woke up that morning to find the coffee table had been moved and the

padlock missing. The Defendant claimed he then looked “everywhere through the house”

but “couldn’t find” the victim, so he woke his wife and drove around the neighborhood

looking for the victim before calling the police. When asked to clarify who else was in the

car, the Defendant said it was Alex, not his wife. The Defendant also reported that the

victim was wearing black pajamas with skeletons on them when he went missing and not

wearing shoes or socks.

The detectives then asked if the victim could unlock the padlock on his own. The

Defendant said he was not sure because he had never “seen [the victim] unlock the door,”

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but the victim had been “progressing and doing things better” lately. The detectives also

asked if anything unusual happened or whether the children had got in trouble that evening.

The Defendant initially said nothing happened. However, when Detective McCartney

informed the Defendant that Alex told her the victim urinated on the floor, the Defendant

admitted that Alex woke him up to tell him the victim had had an accident. The Defendant

said that he told the victim to go back to bed but did not yell at him or scold him. When

asked why he wanted his trunk searched, the Defendant said the victim could open and

close the trunk on his own and may have been hiding inside. Eventually, they returned to

the Defendant’s house and ended the conversation.

The Defendant gave a third statement later that afternoon after being asked about

the latch on the back door. The Defendant explained it was meant to keep the victim from

running away. When asked if the latch was locked that morning, the Defendant said he

found the lock in the children’s toy box, a fact he had not yet divulged. He theorized that

the victim “pushed [the coffee] table over, climbed on top the table, found the key and

unlocked it. [Then he] must have pushed that table back to where it was and exited . . .

while [everyone was] asleep.”

The Defendant gave his fourth statement at around 8:30 o’clock the same night. The

Defendant told investigators that Alex woke him up in the middle of the night to tell him

the victim had urinated on the floor. The Defendant said he noticed the coffee table had

been moved when he woke up again that morning, but he “didn’t look at the [latch on the

back] door” right away and instead began looking for the victim. He also said that he found

the back door padlock in Noah’s toys. Sergeant Daniel noticed inconsistencies between

the Defendant’s first and fourth statements but testified that they were not “earth[-

]shattering.”

Two days after the Defendant reported the victim missing, the Defendant arrived at

the Dickson County Police Department for the April 6, 2018 video recorded interview at

issue in this case. The Defendant drove to the interview of his own free will, and the police

did not order him to submit to questioning. The interview consisted of three parts: a

preliminary interview, a polygraph test, and a post-polygraph interrogation. At no point

was the Defendant handcuffed, restrained, or told he was under arrest. Assistant Special

Agent Ronnie Faulkner of the Tennessee Bureau of Investigations (“TBI”) administered

the polygraph and was the only person in the room with the Defendant during the first two

parts of the interview. TBI Special Agent Joey Boyd joined them for the post-polygraph

interrogation.

The trial court granted the Defendant’s motion to suppress his polygraph results,

and the jury was only shown a redacted version of the video and a transcript with references

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to the polygraph results omitted. The State admitted the unedited video recording as

evidence during the pre-trial suppression hearing and the redacted recording at trial. The

unredacted video was over four hours long, and the redacted video was approximately two

and a half hours. The Defendant’s polygraph results are only referenced herein to provide

context for testimony at the pre-trial voluntariness hearing.

Agent Faulkner began the preliminary interview by advising the Defendant of his

Miranda rights, which the Defendant waived by signing a “Warnings as to Constitutional

Rights” form. When Agent Faulker told the Defendant he was free to leave at any time,

the Defendant responded, “I want to do this so that way there’s no suspicion that I’ve done

something,” and signed a form consenting to the polygraph test. The Defendant said he

had bipolar disorder type-one and was prescribed a variety of psychiatric medications. He

also reported that he got about nine hours of sleep before the interview, that he had taken

his medications as directed, and that he rated his overall health as good.

Agent Faulkner asked the Defendant to summarize the events leading to the victim’s

disappearance. The Defendant gave the same version of events described in his previous

statements. He reiterated his theory that the victim moved the coffee table and climbed it

to unlock the back door. At the same time, everyone was asleep, and the Defendant insisted

that he did not discipline or spank the victim after he urinated on the floor. Agent Faulkner

then administered the polygraph test, and Agent Boyd joined them for the post-polygraph

interrogation.

Agent Faulker began the post-polygraph interrogation by saying the Defendant’s

polygraph results showed he was “not being truthful.” Over the next hour, Agents Boyd

and Faulker repeatedly insisted the Defendant was not telling the truth as the Defendant

reiterated his original story. Agent Boyd then said:

I wish you would believe me when I told you that no matter what you tell me

right now, you tell me the truth, and you will walk out that door. You’re

walking out of here, okay? I promise you. I can promise you that. No matter

what you say to me right now, you’re walking out that door.

The Defendant maintained his prior version of events for another twenty minutes before he

broke down crying and said, “I let [the victim] out.” The Defendant said he was “mad” the

victim had urinated on the floor, so he unlocked the back door and told him to go outside.

The Defendant said his wife was unaware he let the victim out but struggled to explain why

she told investigators she saw the victim asleep in bed when she checked on him that night.

The Defendant insisted he did not kill the victim but admitted he “may have spanked” and

“yelled at” him. He also said he could not remember exactly what happened because he

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blacked out.

As the interrogation continued, the details of the Defendant’s version of events

began to change. He said he was angry after seeing “the pee [on the floor],” so he “went

to the living room . . . [and] unlocked the [back] door,” but the victim started laughing and

got out of bed, so the Defendant spanked him. The Defendant said the victim started crying

but was soon laughing again, so the Defendant spanked him a second time. The Defendant

said he then opened the back door and let the victim out before chasing him down, bringing

him back inside, and spanking him once more. The Defendant moved the coffee table in

front of the door to prevent the victim from escaping again, but somehow, he “got out a

second time.” The Defendant said Alex “saw everything” and admitted that he threatened

to beat Alex if he told anyone what happened.

Agent Boyd asked why the Defendant wanted police to search his trunk. The

Defendant said he noticed his car door was ajar and thought the victim may have climbed

into the trunk. Agent Boyd also asked the Defendant what he told his wife. The Defendant

initially said that he told his wife he “let [the victim] out,” but when pressed further, the

Defendant responded, “I beat him.” The Defendant said that the beating lasted five to ten

minutes, during which he threw the victim on the floor and hit him “countless times” before

throwing him on the coffee table and hitting him some more. The Defendant said he hit

the victim on the head “several times” and that the victim cried “pretty much the whole

time.” After the beating, the Defendant said he took the victim outside, and the Defendant

went back to bed. At first, the Defendant insisted that the victim was still screaming and

crying when he took him outside. However, the Defendant quickly admitted he only

stopped the beating when the victim became unresponsive. The Defendant also said that

Alex and his wife were witnesses and confirmed that he threatened to beat Alex if he told

anyone what he saw.

When asked if he put the victim in his car, the Defendant said, “I know I’m going

to prison” and “I don’t remember doing any of this.” The Defendant then said he put the

victim’s body in the trunk of his car, drove to a dirt logging road, and left the body in a

field. Agent Boyd pulled up a satellite map on his phone, and the Defendant showed him

the location of the field. The Defendant then became despondent and started crying. When

Agent Boyd left the room to get the Defendant some tissues, the Defendant sobbed and

exclaimed, “My God, why did I kill my son?”

When Agent Boyd returned, he asked the Defendant what he wore that night. The

Defendant said he was wearing red basketball shorts and a black t-shirt with a screen-

printed graphic of an alien wearing a Santa hat and a caption that said “Believe.” After

more questioning about where the Defendant hid the victim’s body, Agent Boyd asked

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what time the Defendant returned home. The Defendant responded that he returned home

about thirty minutes after leaving and went back to bed around midnight. The Defendant

then lamented that he “didn’t mean for any of this to happen” and asked what kind of

punishment he would receive for his actions. Agent Faulkner told the Defendant, “[W]e

can’t tell you at this point . . . that will be talked about later on[.]” Agent Boyd then told

the Defendant, “I’m going to need you to come show us where [the victim’s body] is,

okay?” The Defendant agreed, and the interrogation ended roughly four hours after it

began.

After the above videotaped confession, the Defendant provided three additional

confessions. None of these confessions are contested on appeal. The first post-confession

statement occurred when the Defendant was in a car with the detectives en route to where

he said the victim’s body could be found. The Defendant was not handcuffed or placed

under arrest, and the Defendant voluntarily got into the car with Sergeant Daniel and

another officer. The Defendant then guided them to the field where he said he hid the

victim’s body in his videotaped confession. Although the Defendant was not questioned

during the ride, he made several spontaneous statements that were captured by the car’s

digital audio recorder, some of which were admitted into evidence at trial. Some of the

Defendant’s comments during the ride included, “I don’t want to see him[,]” “My Dad is

going to kill me” and “I want all of the donations to go to [the victim’s] funeral.” The

Defendant also said that “Alex is a good boy” who “tells the truth[,]” because “[w]e taught

him not to lie to anybody.” The Defendant said he believed law enforcement had already

interviewed Alex and was “pretty sure [Alex] told them everything.” Although they went

to the field where the Defendant said he hid the victim’s body, law enforcement officers

were unable to locate the victim’s body. They returned to the station early morning the

following day, April 7.

Once at the station, the Defendant was reminded of his Miranda rights and gave his

second post-confession statement to law enforcement. The Defendant then signed a written

statement typed by law enforcement based on his second post-confession statement:

My name is Joseph Ray Daniels. I am speaking to you voluntarily

today and I remember my Miranda rights from earlier. Everything I told you

in the past about how I killed [the victim] is true. Also, that night I got into

my car and drove down McElhiney Road and I got [the victim’s body] out of

the trunk. I had my wife’s cell phone in my left hand using it as a flashlight

and [the victim’s body] was over my right shoulder. I know it was my wife’s

cell phone because it doesn’t have a passcode and mine was still plugged in

at the house charging.

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Earlier that night I got woken up by Alex, who told me that [the

victim] had peed on the floor. I went in and told them to get their “asses” in

the bed. [The victim] started laughing. So I beat him. That’s when he ran

out the front door. [The victim] ran down the road. I saw a car drive by and

then I ran out and got him back in the house. I beat him some more. That’s

when I killed [the victim]. I beat him with a closed fist and put his body in

the trunk of my car, the red Chevrolet Impala. I went back in to grab a

cellphone and got my wife’s phone. I took that phone with me when I took

[the victim] out to dump his body.

I lied to you previously about where I placed [the victim’s] body.

Earlier I told you it was in a field and I showed you on the map where the

field was along McElhiney Road, where it turns into a dirt road. I am now

telling you the truth about that part. I placed [the victim’s] body in the pond

right there on the right side of the dirt road where the road curves right there

in the area I showed you on the map. I placed [the victim] wearing his

pajamas in the pond right there.

The Defendant was arrested for first-degree murder approximately thirty minutes later.

The Defendant gave his third post-confession statement to law enforcement later

that day when he told police that he had thrown the victim’s body off a bridge in Hickman

County with the word “Piney” next to it. Law enforcement drove the Defendant to multiple

bridges in Hickman County, including one that crosses the Piney River, which the

Defendant identified as the correct bridge with “eight out of ten” certainty. However, law

enforcement found no evidence that a body had been thrown off any of the bridges they

visited that day. On the way back to jail, the Defendant said he “lied and that he couldn’t

remember where the child was located.” However, the Defendant confirmed that he beat

the victim, that he put the victim in the trunk of his car, and that Alex witnessed what

happened.

Alex, who was eleven years old at the time of trial, testified that he last saw the

victim alive on April 3, 2018, the day before he was reported missing. Alex confirmed that

the victim urinated on the floor that night, that the Defendant beat the victim after Alex

told him what happened, and that the two boys then went back to bed. Sometime later,

Alex was awoken by a loud bang that “sounded like a thump.” Alex testified that he

“waited for things to cool down” before leaving the bedroom. After “a couple of minutes,”

he went to the living room and saw the victim lying on the ground. The Defendant “had

beaten [the victim]” and was “about to pick him up and carry him out the door.” Noah and

Aunt Joyce were in the living room, and the Defendant’s wife watched from behind a

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kitchen cabinet. The Defendant then picked up the victim’s body and carried it outside

through the back door. Alex snuck outside to follow the Defendant shortly after that.

Once outside, Alex snuck over to the edge of the house and saw the Defendant in

the backyard, kneeling next to the victim’s body. The Defendant eventually noticed Alex

and threatened to kill him if he “didn’t help[.]” Alex then opened the front door and trunk

of the Defendant’s car. The Defendant ignored the car and told Alex to go back inside.

Alex hid on the porch and watched the Defendant carry the victim’s body down the street

before disappearing into the darkness. Alex returned inside and noticed that Noah and

Aunt Joyce had been watching through the front window. The Defendant woke Alex the

next morning and told him the victim had run away. The Defendant then took Alex for a

drive around the neighborhood, ostensibly to look for the victim. Alex said he did not see

Noah or Aunt Joyce that morning or go to school that day. Alex also testified he had never

seen the victim move the living room coffee table alone, except when he accidentally

bumped it. Additionally, although the victim could climb various objects, Alex had never

seen him do so to unlock something.

The Child Advocacy Center for the Twenty-Third Judicial District of Tennessee

(“CAC”) interviewed Alex twice in the days following the victim’s death. Both interviews

were recorded on video. Alex’s first CAC interview took place on April 5, 2018, one day

after the Defendant reported the victim missing and one day before the Defendant’s

confession. On cross-examination and in response to being shown certain unidentified

portions of a video interview, Alex testified that he told law enforcement “a false story”

during the initial investigation. Defense counsel played portions of the video from Alex’s

first interview and asked Alex if he was being truthful at the time. Alex said he “was lying

about” the Defendant “calmly” telling the victim to go back to bed after he urinated on the

floor. Alex said he lied “because he didn’t want [the Defendant] to get in trouble.” Alex

testified that he only changed his story because his memory of the victim’s death had been

“blocked off” until he finally remembered what happened a couple of months before trial.

Alex testified that CAC interviewed him “a little over 50 times,” most of which were not

recorded. He also confirmed that no one told him how the victim died before trial.

Defense counsel then played clips from Alex’s second recorded CAC interview,

from April 9, 2018, three days after the Defendant confessed. Alex refuted defense

counsel’s insinuation that the interviewer planted the idea of the Defendant beating the

victim to death in his mind. Alex confirmed that, during the interview, he said he was

asleep when the victim went missing and that the interviewer told him at least four times

that he had seen the Defendant beating the victim. Alex said the story he told the

interviewer was “obviously a lie” and that he “just wanted to get out of there.” On redirect,

Alex said that most of his CAC interviews were conducted by a different interviewer than

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his first two interviews and that he had not been interviewed in nearly two years. Alex

testified that he no longer wanted to protect the Defendant. He also asserted that his trial

testimony was truthful despite the lies he told during his CAC interviews.

On redirect, the trial court granted the State’s motion to enter the videos into

evidence. The first interview reflects that Alex said he did not know where the victim was

but speculated that the victim ran away to find his “nanny,” Belle Daniels, who was married

to the victim’s grandfather and was then out of town. Alex confirmed that the victim

urinated on the floor the night he went missing and said the Defendant told them both to

go back to bed “in a quiet and calm voice.” Alex insisted that he was asleep when the

victim went missing. Alex speculated that the victim escaped by moving the living room

coffee table and climbing it to unlock the back door. He also denied being coached by the

Defendant before the interview.

In Alex’s second recorded CAC interview that occurred on April 9th, Alex said he

knew the Defendant had confessed to killing the victim. Alex said the Defendant’s initial

missing person report was “a hoax.” Despite being told the Defendant named him as a

witness in his confession, Alex said he was asleep when the victim was killed and did not

see what happened to the victim or know where the victim’s body was hidden. Alex also

denied being threatened by the Defendant.

About fifty minutes into the second CAC interview, the details of Alex’s story began

to change. Alex said he saw the Defendant dragging the victim’s unresponsive body

somewhere “outside the house.” Alex also said that Noah “saw everything I saw” and

“tried to stop [the Defendant].” Alex said, “Noah protected [the victim] for a few hits, but

then Noah woke up, so [I] went back to bed.” The interviewer asked Alex to clarify if he

saw the Defendant hit the victim and if Noah tried to intervene, to which Alex responded,

“Noah stopped it for a few hits, I guess.”

The interviewer then asked where the Defendant hit the victim. Alex responded,

“You see, I don’t know because as soon as Noah defended him for those two times, it sort

of got rid of me.” Alex said there was a “person with [the Defendant] and . . . they were

both just standing there and . . . no one dodged their hits.” Alex said this person was

“standing right beside” the Defendant as he hit the victim. Alex said it was “hard to tell”

who this person was but confirmed it was the Defendant’s wife or Aunt Joyce.

Alex made several other claims during the second CAC interview. He claimed that

he could see through other people’s eyes, that he could teleport and did so at least once that

night, that he saw a tree full of apples dripping with blood, that the Defendant stabbed his

hand, causing it to bleed profusely, and that the Defendant stabbed the victim with a large

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sword-like knife. However, there was no evidence to substantiate any of these claims.

On the day the victim was reported missing, a DCSO K-9 unit followed the victim’s

scent to a pond a few miles from the Defendant’s house. Law enforcement drained the

pond and conducted an aerial search but found nothing significant. Three days later, law

enforcement executed a search warrant of the Defendant’s home and found, among other

things, the t-shirt the Defendant said he was wearing when he killed the victim. Blood

found on various clothing items and the center console of the Defendant’s car tested

positive for the Defendant’s DNA and DNA from at least one unidentified individual.

However, investigators were unable to obtain a sample of the victim’s DNA. Twenty-four

local, state, and federal agencies were involved in the investigation; however, the victim’s

body was never recovered.

Data from electronic devices found in the Defendant’s home revealed that the

Defendant’s wife accepted a Facebook message request from a former sexual partner, on

February 10, 2018, two months before the victim was reported missing. On March 2nd,

the Defendant’s wife told her paramour that she was “falling for” him and had not “felt that

way with [the Defendant] in a very long time.” She also wondered if she would be able to

survive on her own by combining income from a job with the $1,200 disability payment

she received each month to care for the victim. The pair also reminisced about their first

sexual encounter, which may have involved the Defendant, in explicit detail. On March

22nd, the Defendant’s wife told her paramour that she wanted to divorce the Defendant

because she was “seriously . . . not happy” and had not been happy for a long time. On

March 28th, the pair made plans to visit each other and fantasized about the sexual

encounters they would have.

There is no evidence that Defendant read the Facebook messages between his wife

and her paramour. However, data from the Defendant’s cellphone reveals that on March

30th, five days before he reported the victim missing, he searched “anonymous parental

test” on Google and visited a website for a company that sells DNA paternity tests. Minutes

later, he read an article entitled “How Can I Do a Secret Paternity Test Without Mom, Dad,

or Child Knowing?” on DNATesting.com. He then sent the following text message to his

mother, “F**k this world by the time you see this message I’ll be 6 ft. under.” The day

before the victim was reported missing, the Defendant’s wife sent the Defendant a text

message asking, “Hey where are you,” to which Defendant responded, “Mental health.”

Jenny Jones, a bail bond agent, testified that she lived down the street from the

Defendant when the victim went missing. At around 1:30 a.m. on April 4, 2018, roughly

five hours before the victim was reported missing, Ms. Jones was driving home when she

saw “[s]omeone standing on [a] bridge” wearing red shorts and a multi-colored shirt or

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hoodie. TBI Special Agent Zachary Burkhart testified that the bridge was approximately

0.8 miles from the Defendant’s house. A few days later, Ms. Jones saw a news report about

the victim and reported what she saw to the police, identifying the person she saw on the

bridge as the Defendant. She signed a written statement memorializing her account on

April 23, 2018.

The State rested its case, and the Defendant did not offer proof. The jury convicted

the Defendant of the lesser included offense of second-degree murder in count one and

guilty as charged in the remaining counts of the presentment. The trial court merged the

conviction of second-degree murder (count one) into the convictions for felony murder

(count two) and aggravated child abuse (count three) and imposed an effective sentence of

life imprisonment. For counts four and five, making a false police report and tampering

with evidence, the court imposed a concurrent term of four and six years, respectively. The

Defendant timely filed a motion for a new trial, which was denied by written order. The

Defendant timely filed a notice of appeal on February 2, 2023, and this matter is now

properly before this court.

ANALYSIS

I. Admissibility of Confession. The Defendant contends the trial court erred in

denying his motion to suppress his confession (1) because the State failed to corroborate

his extrajudicial confession under the modified trustworthiness standard outlined in State

v. Bishop, 431 S.W.3d 22 (Tenn. 2014); and (2) because his post-polygraph statements

were obtained by law enforcement based on coercive interrogation techniques and after

express promises of leniency. The Defendant argues the trial court erred in relying on

Noah’s hearsay statement as independent prima facie evidence of the victim’s death and

Alex’s trial testimony as substantial independent evidence that corroborated the

Defendant’s confession. Because the State’s proof is insufficient to prove the Defendant’s

guilt without his confession, the Defendant argues his conviction cannot stand.

Alternatively, the Defendant contends his post-polygraph statements from April 6, 2018,

should have been suppressed due to coercive interrogation techniques employed by TBI

Agents Boyd and Faulkner. Despite his repeated claims of innocence, the investigators

accused the Defendant of lying and made promises of leniency in exchange for a

confession. Under these circumstances, the Defendant asserts his confession was

involuntary and should have been excluded.

The State characterizes the Defendant’s claim as challenging the sufficiency of the

evidence and responds that the evidence is sufficient to support the Defendant’s homicide

and aggravated child abuse convictions. The State contends the Defendant’s out-of-court

confession was corroborated by Alex’s testimony, who observed the Defendant carrying

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the victim’s lifeless body around the property, statements from Noah and Aunt Joyce that

the victim was dead, and physical proof that suggests the Defendant’s confession was

trustworthy. The State emphasized the consistency between the Defendant’s confession

and Alex’s trial testimony, the testimony of Jones, who observed the Defendant standing

near a bridge around 1:30 on the morning of the victim’s disappearance, and the

implausibility of the victim, who had special needs, being able to unlock the door on his

own. The State argues that the Defendant’s claim merely points to evidence that

contradicts the confession or the corroborating evidence, which are credibility issues to be

resolved by the factfinder. Finally, the State contends the trial court correctly determined

the Defendant’s statement was voluntarily given because the Defendant spoke with law

enforcement of his own free will, was advised of his constitutional rights, indicated he

wanted to participate in questioning, was an educated individual, was not subject to threats

or abuse, was in good physical and mental condition, and was not subject to a lengthy

interrogation before the statement. For the reasons that follow, we agree with the State.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

“Appellate courts evaluating the sufficiency of the convicting evidence must determine

‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this

court evaluates the sufficiency of the evidence on appeal, the State is entitled to the

strongest legitimate view of the evidence and all reasonable inferences that may be drawn

from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v.

Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

“In the absence of direct evidence, a criminal offense may be established exclusively

by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (citing Duchac v.

State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-58 (Tenn.

1958)). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he

inferences to be drawn from such evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”

State v. Rice, 184 S.W.3d 646, 662 (quoting Marable, 313 S.W.2d at 457). This court may

not substitute its inferences for those drawn by the trier of fact in cases involving

circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (citing State v.

Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). The standard of review for sufficiency of the

evidence “‘is the same whether the conviction is based upon direct or circumstantial

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evidence.’” Dorantes, 331 S.W.3d at 379 (quoting Hanson, 279 S.W.3d at 275).

The State must still prove the corpus delicti beyond a reasonable doubt. State v.

Cannon, 642 S.W.3d 401, 446 (Tenn. Crim. App. 2021) (citing State v. Shepherd, 902

S.W.2d 895, 901 (Tenn. 1995)). Corpus delicti, meaning literally “the body of the crime,”

consists of two elements: (1) the death of a human being; and (2) a criminal agency in

producing that death. Id. (internal citations omitted). When the crime in question is a

felony murder, as in this case, the corpus delicti of the crime is the crime-induced death of

the victim, not the underlying or predicate felony. Bishop, 431 S.W.3d at 48. In

establishing the corpus delicti, the State may proffer testimony of an eyewitness to the act

or rely purely on circumstantial evidence. Id. (citing Berry v. State, 523 S.W.2d 371, 373

(Tenn. Crim. App. 1974)). Regardless of the State’s method, the evidence must show that

death or disappearance was not occasioned by accident, suicide, or natural causes. Id.

(citing Shepherd, 902 S.W.2d at 901 and Davis v. State, 445 S.W.2d 933, 936 (1969)).

“Whether the [S]tate has sufficiently established the corpus delicti is primarily a jury

question.” Id. (citing State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999)).

1. Corroboration. A trial court’s determination that an extrajudicial confession is

sufficiently corroborated is a legal conclusion, which we review de novo. However, to the

extent that an accused’s challenge to the determination of the trial court rests on disputed

facts, we will defer to the findings of the trial court unless the record preponderates against

them. Accordingly, the question of whether an extrajudicial confession is adequately

corroborated is a mixed question of law and fact that appellate courts will review de novo.

Bishop, 431 S.W.3d at 61-62.

The Defendant argues the corroboration requirement was not litigated before trial.

This is not entirely true. The record reflects the Defendant filed a pre-trial motion to

exclude his confession for lack of corroboration. At a hearing, the Defendant argued the

trial court should rule on the Bishop issue before trial, while the State argued that

“corroboration of a defendant’s extrajudicial statement is not a requirement of

admissibility.” The trial court ruled it would decide whether the State introduced sufficient

evidence to corroborate the confession after the jury reached a verdict if the Defendant

filed a motion for a judgment of acquittal. After the Defendant filed a motion to reconsider,

the trial court determined that it would be impractical to hold a pre-trial Bishop hearing

and ruled that the confession would “not be admitted at trial until the State presents

independent proof of corroboration.” After Alex’s testimony and other proof about the

investigation, defense counsel reminded the court of their Bishop motion. Defense counsel

argued there was no physical evidence to corroborate the portion of the confession that the

Defendant beat the victim for fifteen or twenty minutes in the living room, that the

Defendant took the victim’s body into a field and returned home, or that the victim was

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deceased. During a colloquy between defense counsel and the court, defense counsel

conceded that Alex’s testimony that he heard a loud thump, waited a while, came into the

living room, saw the victim lying on the floor, and then the Defendant picked up the victim

and carried the victim outside the door was “strong circumstantial evidence.” However,

defense counsel insisted there was no direct evidence that Alex witnessed the Defendant

beat the victim to death.

After an extensive analysis of the relevant law, the trial court determined Alex’s

testimony constituted substantial independent evidence that the Defendant’s confession

was trustworthy and, in combination with Noah and Aunt Joyce’s statements, constituted

independent prima facie evidence of the victim’s death. The court reasoned, in relevant

part, as follows:

In this case we have the testimony of an alleged eyewitness, Alex,

who states that he was there and that he saw the [D]efendant come in. . . .

[H]e went and told the [D]efendant that [the victim] had peed in the floor,

the [D]efendant was in his room, he and [his wife] were both awake, and the

[D]efendant went into the room and beat [the victim]. . . .

. . . . Alex states that he saw [the Defendant] beat the child, that [Alex] went

on back to sleep, and he later in the middle of the night heard a loud bang,

that he waited a little bit to let things quiet down, that he walked out and saw

[the victim] laying on the floor, he then saw the [D]efendant carry him out.

More importantly, in this [c]ourt’s mind, Alex’s testimony was that he saw

Noah standing and also being able to view what had taken place along with

Aunt Joyce, and that he saw both of them and they had an opportunity to

observe. And that he saw the [D]efendant carry [the victim] out the door and

that he laid him at the back of the car, and that in fact he instructed Alex to

help him with this situation and threatened him at some point. Made him

help him, that he opened the door to the car and the trunk. . . .

The [D]efendant’s confession states that he beat the child and that

Alex witnessed it. That’s in my opinion a corroboration of that statement by

– The [D]efendant is corroborated by Alex’s testimony today. Alex’s

testimony corroborates the fact that Noah witnessed this . . . . [Alex] testified

that Noah certainly had the opportunity to see what took place. . . .

Based upon all of those facts, and the fact that [Alex] in response to

the State’s question stated the last time he saw his brother alive was on April

3, and the fact that the [victim] has never been recovered and that threats

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have been made, I believe there is sufficient corroboration of both the corpus

delicti, as there is, that the circumstantial evidence of the death of this child.

Our analysis of this issue begins with clarifying the procedure for analyzing

corroborating evidence for a Bishop hearing. While evidence corroborating corpus delicti

does not need to precede the introduction of the confession, our supreme court has stated

that it is “best to do so; but if it came in the wrong order the Court would not reverse.”

Kyle v. State, 344 S.W.2d 537, 538 (1961); see Ashby v. State, 139 S.W. 872, 875 (1911);

Murphy v. State, 426 S.W.2d 509 (1968) (“[A]dmitting the [defendant’s] confession prior

to the introduction of some evidence of corpus delicti. . . . [amounts] to no more than

harmless error where corpus delicti is later established.”). Although the trial court did not

technically conduct a pretrial hearing to determine the admissibility of the confession, the

court thoroughly vetted the corroboration issue mid-trial and before the jury was allowed

to hear the Defendant’s bare confession. The trial court exercised its gatekeeping function

to determine the trustworthiness of the Defendant’s confession before allowing it to be

presented to the jury. Under these circumstances, the factual findings of the trial court are

conclusive unless the evidence in the record preponderates against them.

In Bishop, the Tennessee Supreme Court adopted the modified trustworthiness

standard for evaluating whether an extrajudicial statement is sufficiently corroborated.

Bishop, 431 S.W.3d at 58; State v. Willis, 496 S.W.3d 653, 750 (Tenn. 2016). Under this

standard, a defendant’s extrajudicial confession is sufficient to support a conviction if the

State presents “independent proof of facts and circumstances which strengthen or bolster

the confession and tend to generate a belief in its trustworthiness, plus independent proof

of loss of injury.” Bishop, 431 S.W.3d at 58 (internal citations and quotations omitted).

The supreme court explained:

When a defendant challenges the admission of his extrajudicial confession

on lack-of-corroboration grounds, the trial court should begin by asking

whether the charged offense is one that involves a tangible injury. If the

answer is yes, then the State must provide substantial independent evidence

tending to show that the defendant’s statement is trustworthy, plus

independent prima facie evidence that the injury actually occurred. If the

answer is no, then the State must provide substantial independent evidence

tending to show that the defendant’s statement is trustworthy, and the

evidence must link the defendant to the crime.

Id. at 58-59 (footnotes and citations omitted). “Prima facie” evidence is “[e]vidence that

will establish a fact or sustain a judgment unless contradictory evidence is produced.” State

v. Clark, 452 S.W.3d 268, 280 (Tenn. 2014) (quoting Black’s Law Dictionary 638-39 (9th

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ed. 2009)). “Substantial evidence” is “[e]vidence that a reasonable mind could accept as

adequate to support a conclusion; evidence beyond a scintilla.” Id. (quoting Black’s Law

Dictionary 640 (9th ed. 2009)).

The corroboration requirement is a low threshold. Clark, 452 S.W.3d at 280. Its

purpose is twofold: to weed out false confessions to nonexistent crimes (by requiring some

independent evidence that the injury occurred) and to weed out false confessions to actual

crimes (by requiring some independent evidence that implicates the accused). Id. (citing

Bishop, 431 S.W.3d at 59-60). The standard of proof required to clear this hurdle is even

lower than the “preponderance of the evidence” standard. Id. (citing Bishop, 431 S.W.3d

at 60 n.33 (quoting Smith v. United States, 348 U.S. 147, 156 (1954))).

To establish trustworthiness, independent evidence must corroborate essential facts

included in the defendant’s statement. Bishop, 431 S.W.3d at 60. The independent

corroborating evidence need not establish by itself the offense beyond a reasonable doubt

or by a preponderance of the evidence. Id. at 60 n.33. The independent evidence also need

not establish each element of the offense. Id. However, independent evidence that only

corroborates collateral circumstances surrounding the confession is insufficient to establish

trustworthiness. Id. at 60. In presenting independent prima facie evidence that the injury

actually occurred, the State is not required to establish that the injury resulted from a

criminal act or link the defendant to the injury. Bishop, 431 S.W.3d at 59.

In this case, three of the Defendant’s offenses of conviction, second-degree murder,

first-degree felony murder, and aggravated child abuse, involve a tangible injury. Thus,

the State needed to provide substantial independent evidence the Defendant’s confession

was trustworthy and independent prima facie evidence of the victim’s death.

On appeal, the Defendant argues that Alex’s testimony cannot be used to show that

the Defendant’s confession is trustworthy because Alex’s testimony is untrustworthy. The

Defendant asserts that Alex’s testimony contradicts his previous statements to law

enforcement and the forensic evidence in this case. In so arguing, the Defendant attacks

the weight the trial court afforded the corroborative evidence rather than its admissibility.

“[O]nce the State presents independent evidence establishing the prima facie

trustworthiness of the defendant’s extrajudicial confession, the existence of contradictory

evidence does not necessarily render the confession untrustworthy. Instead, contradictory

evidence raises a credibility issue to be resolved by the factfinder.” Bishop, 431 S.W.3d

at 61 (citations omitted). As the fact finder, the trial court heard the forensic evidence the

Defendant argues contradicts Alex’s testimony, namely, the lack of any blood or DNA in

the living room to substantiate that the victim was beaten to death, and defense counsel had

the opportunity to cross-examine Alex about the discrepancies between his trial testimony

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and the statements Alex initially provided to law enforcement. The trial court determined

Alex’s testimony was credible, and the record does not preponderate against the trial

court’s determination.

The Defendant also contends that Alex’s testimony does not include “facts that

establish the crime” and differs from the Defendant’s confession to such an extent that it

cannot be seen as corroborative. However, the Defendant’s argument overstates the State’s

burden of proof under the modified trustworthiness standard. While some differences exist

between Alex’s testimony and the Defendant’s confession, they contain the same essential

facts. Alex’s testimony and the Defendant’s confession establish that Alex told the

Defendant that the victim urinated on the floor sometime after going to bed, a detail that

remains consistent in every statement Alex and the Defendant made to law enforcement.

Alex’s testimony and the Defendant’s confession also establish that the Defendant

physically punished the victim after learning he urinated on the floor and that both boys

went back to bed shortly thereafter. Alex testified that he was awoken by a loud bang that

“sounded like a thump.” In his confession, the Defendant said he threw the victim’s body

onto the coffee table, which is consistent with the sound heard by Alex. The Defendant

confessed the beating continued after he threw the victim onto the coffee table and did not

end until the victim became unresponsive. This is consistent with Alex’s testimony that he

“waited for things to cool down” before leaving the bedroom.

Alex testified that he saw the Defendant pick the victim’s body up off the floor and

carry it outside, just as the Defendant said he did in his confession. In both versions of

events, the Defendant threatened to harm Alex if he failed to assist the Defendant in some

way, either by keeping quiet about the night’s events or by assisting the Defendant with

the victim’s body. In addition to the similarities between the Defendant’s confession and

Alex’s testimony, the fact that Alex testified as a witness corroborates the Defendant’s

confession because the Defendant repeatedly insisted that Alex was a witness. See Bishop,

431 S.W.3d at 60 (noting that “[o]ne way the State can effectively bolster the defendant’s

admission or confession is to present independent evidence that ‘parallel[s] the defendant’s

confession’ or corroborates the defendant’s account of what happened immediately before

or after the crime”).

Alex’s testimony is not the only evidence corroborating essential facts of the

Defendant’s confession. Law enforcement found the shirt the Defendant said he wore that

night when they searched his home. Jenny Jones testified that she saw the Defendant

standing on a bridge wearing red shorts and a colorful top the night of the murder. Her

description of the Defendant’s clothing is consistent with the Defendant’s confession. The

Defendant confessed to carrying the victim’s body outside the house and to leaving his

property that night, which is consistent with Ms. Jones’s testimony and Alex’s statement

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from his second CAC interview that he saw the Defendant dragging the victim’s body

somewhere “outside the house.” Jones’s testimony is also consistent with the Defendant’s

third post-confession statement that he disposed of the victim’s body by throwing it off a

bridge. Under the low threshold to evaluate corroboration of an extrajudicial statement,

the above evidence corroborated the essential facts included in the Defendant’s confession

and constituted substantial independent evidence of its trustworthiness. Accordingly, we

agree with the determination of the trial court and conclude the first prong of the modified

trustworthiness standard is satisfied.

The second prong of the modified trustworthiness standard requires the State to

introduce independent prima facie evidence of the victim’s death. The trial court found the

State had introduced independent prima facie evidence of the victim’s death based on

Alex’s testimony that he last saw the victim alive on April 3, 2018, and that he saw the

Defendant carrying the victim’s body. The trial court also based its findings on the hearsay

statements of Noah and Aunt Joyce and the fact that the victim’s body was never recovered.

Here, the essence of the Defendant’s claim is that there was no physical evidence

corroborating the Defendant’s extrajudicial statement. However, corroboration of the

corpus delicti may be achieved with circumstantial evidence alone. State v. Housler, 193

S.W.3d 476, 490 (Tenn. 2006) (citing Jones, 15 S.W.3d at 891). The Defendant

specifically argues the State failed to introduce prima facie evidence of an injury because

there was no conclusive proof of the victim’s death and because the victim’s body was

never recovered. The State argues that Alex’s testimony, Noah and Aunt Joyce’s hearsay

statements, and the fact that a body was never found are prima facie evidence of the

victim’s death. We conclude the State introduced sufficient evidence at trial to satisfy

Bishop’s second prong based on the testimony of Alex and Noah’s excited utterance, “Joe

dead, Joe dead, Joe dead[.]” Neither Bishop nor Willis requires the State to recover a

victim’s body to satisfy the second prong of the modified trustworthiness standard in

second-degree murder or first-degree felony murder cases.

The State argues, and we agree, that the fact the victim was never seen alive after

Alex saw the Defendant carry his body around is prima facie evidence of the victim’s death.

The Defendant counters the State’s argument via footnote with the statute that presumes a

person is dead only after missing for seven years, and no equivalent absence occurred here.

See Tenn. Code Ann. § 30-3-102. Again, we are not persuaded by the Defendant’s attempts

to restrict the State’s ability to prove its case. The absence of a body does not preclude a

conviction for murder so long as the corpus delicti can be proven by circumstantial

evidence. See e.g., State v. Bondurant, No. 01C01-9501-CC-00023, 1996 WL 275021, at

*8 (Tenn. Crim. App. May 24, 1996) (noting that the failure to recover a victim’s body

should not be fatal to the prosecution of a homicide because requiring a body would afford

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absolute immunity to defendants who are cunning enough to destroy the body or otherwise

conceal its identity); State v. James, No. W2007-00775-CCA-R3-CD, 2009 WL 636726,

at *7 (Tenn. Crim. App. Mar. 10, 2009) (concluding that even though the victim’s body

was not recovered, the evidence produced at trial was sufficient to establish the elements

of first degree premeditated murder beyond a reasonable doubt). In this case, Alex testified

that he had not seen the victim alive since he saw the Defendant carry the victim’s body

outside and lay it on the ground before picking it back up and carrying it down the street

into the night. At the time of trial, the victim, a developmentally delayed five-year-old

autistic child who had been beaten until he was unresponsive and abandoned in a rural area,

had been missing for three years despite an extensive search that involved over a dozen

government agencies. Shortly after observing the victim lying on the floor in the living

room, the victim’s three-year-old brother Noah came into a room during the subsequent

investigation and spontaneously uttered, “Joe dead, Joe dead, Joe dead[.]” Under the low

threshold required to evaluate corroboration of extrajudicial statements, the above

testimony constitutes independent prima facie evidence of the victim’s death.

Accordingly, we conclude that there was sufficient, independent corroborating

evidence both to permit the trial court to allow the Defendant’s confessions into evidence

and for the jury to find, beyond a reasonable doubt, that the Defendant was guilty of second-

degree murder, first-degree felony murder, and aggravated child abuse.

2. Voluntariness. The Defendant contends his post-polygraph videotaped

confession from April 6, 2018, should have been suppressed as involuntary. He argues the

interrogators’ repeated accusations of lying and a single offer of leniency to “tell [the

detective] the truth and you will walk out that door” overcame his will and rendered his

confession the product of coercion. The State argues the confession was not coerced

because the Defendant voluntarily submitted to questioning, waived his Miranda rights,

and did not confess to murdering the victim until well after the interrogator’s supposed

offer of leniency. We agree with the State.

Our review of the “trial court’s findings of fact in a suppression hearing will be

upheld unless the evidence preponderates otherwise.” State v. McKinney, 669 S.W.3d 753,

764 (Tenn. 2023) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing

party is entitled to the strongest legitimate view of the evidence adduced at the suppression

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

evidence. Id. (internal citations and quotations omitted). “‘[I]n evaluating the correctness

of a trial court’s ruling on a pretrial motion to suppress, appellate courts may consider the

proof adduced both at the suppression hearing and at trial.’” Id. (quoting State v. Henning,

975 S.W.2d 290, 299 (Tenn. 1998)). However, this court reviews a trial court’s application

of law to the facts under a de novo standard of review with no presumption of correctness.

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Id. The voluntariness of a confession is a question of fact. Willis, 496 S.W.3d at 695

(citing State v. Sanders, 452 S.W.3d 300, 305 (Tenn. 2014)). The State has the burden of

establishing the voluntariness of a confession by a preponderance of the evidence. Id.

(citing Sanders, 452 S.W.3d at 305).

The due process clauses of the Fifth Amendment and Fourteenth Amendment of the

United States Constitution require a confession to be voluntary before its admission into

evidence. State v. Davidson, 509 S.W.3d 156, 189 (Tenn. 2016). The due process

voluntariness test is distinct from Miranda. Id. (citing Dickerson v. United States, 530 U.S.

428, 434-35 (2000); Mincey v. Arizona, 437 U.S. 385, 397-98 (1978)); McKinney, 669

S.W.3d at 766. The issue under Miranda is whether a suspect received certain warnings

and knowingly and voluntarily waived certain rights, whereas the essential inquiry under

the voluntariness test is whether a suspect’s will was overborne so as to render the

confession a product of coercion. Id. (citing State v. Freeland, 451 S.W.3d 791, 815 (Tenn.

2014)); State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996)). The voluntariness test includes

an assessment of the psychological impact on the accused and an evaluation of the legal

significance of the accused’s reaction. Id. (citing Schneckloth v. Bustamonte, 412 U.S.

218, 226 (1973) (citing Culombe v. Connecticut, 367 U.S. 568, 603 (1961)). While the

Miranda-waiver inquiry analyzes the knowing and voluntary nature of the waiver, the due

process voluntariness inquiry is broader in scope, and analyzes whether a defendant was

coerced into providing a statement. McKinney, 669 S.W.3d at 766. It is possible for a

statement to be voluntary under a due process analysis but otherwise fail to abide by the

requirements of Miranda. Conversely, although it may be rare, it is possible for a defendant

to be coerced into providing a statement after validly waiving his or her Miranda rights.

McKinney, 669 S.W.3d at 766 (citing Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984)

(“[C]ases in which a defendant can make a colorable argument that a self-incriminating

statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to

the dictates of Miranda are rare.”)).

Whether a confession was made voluntarily must be determined by the totality of

the circumstances, including the characteristics of the accused and the details of the

interrogation. Davidson, 509 S.W.3d at 189 (citing Dickerson, 530 U.S. at 434; Freeland,

451 S.W.3d at 815). Relevant factors include the age, education, and intelligence of the

accused; the extent of previous experience with law enforcement; whether questioning was

repetitive and prolonged; the length of the detention prior to giving a statement; the lack of

any advice to the accused of his constitutional rights; whether the accused was injured,

intoxicated, drugged, or in ill health; deprivation of food, sleep, or medical attention; and

physical abuse or threats of abuse. Id. (citing State v. Climer, 400 S.W.3d 537, 568 (Tenn.

2013)). “Coerced confessions are inherently unreliable.” Id. (citing Climer, 400 S.W.3d

at 567-68). For a statement to be voluntary, it “‘must not be extracted by any sort of threats

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or violence, nor obtained by any direct or implied promises, however slight, nor by the

exertion of any improper influence.’” State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980)

(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)).

In this case, the Defendant does not dispute that he made a voluntary, knowing, and

intelligent waiver of his Miranda rights to counsel and against self-incrimination during

the April 6 videotaped interview. A valid waiver of Miranda rights remains valid unless

the circumstances change so seriously that the suspect’s answers to interrogation are no

longer voluntary or unless the suspect is no longer making a knowing and intelligent waiver

of his rights. In Tennessee, “[p]romises of leniency by state officers do not render

subsequent confessions involuntary per se: ‘The Fifth Amendment does not condemn all

promise-induced admissions and confessions; it condemns only those which are compelled

by promises of leniency.’” Smith, 933 S.W.2d at 455 (quoting Kelly, 603 S.W.2d at 729).

In determining whether or not a promise of leniency has “compelled” a statement, the court

must examine “whether the behavior of the State’s law enforcement officials was such as

to overbear [the accused’s] will to resist and bring about confessions not freely self-

determined.” Kelly, 603 S.W.2d at 728 (quoting Rogers v. Richmond, 365 U.S. 534, 544

(1961)). Additionally, “[a] defendant’s subjective perception alone is not sufficient to

justify a conclusion of involuntariness in the constitutional sense.” Smith, 933 S.W.2d at

455 (quoting State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). Rather, “coercive police

activity is a necessary predicate to finding that a confession is not voluntary.” Id.

As relevant here, the Defendant filed a pre-trial motion to suppress his confession,

arguing that the April 6 post-polygraph videotaped statement was involuntary based on

Agent Boyd’s express promise of leniency and that the Defendant never made an

incriminating statement until Agent Boyd “promised him immunity by saying[,]”

I told you that no matter what you tell me right now you tell me the

truth – and you will walk out that door. You’re walking out of here, okay?

I promise you, I can promise you that.

The statement was made at 6:05 p.m., and the Defendant began to incriminate

himself at 6:25 p.m. The Defendant insisted that his incriminating statement came after

repeated denials of criminal conduct and was compelled by Agent Boyd’s “promise of

immunity.”

At the April 1, 2021 hearing on the motion to suppress the April 6 videotaped

statement “from 7:44 AM to 5:53 AM on 4/7/18,” there was no testimony from Agent

Boyd, Agent Faulkner, or the Defendant. The record reflects that Agent Faulkner was

questioned about the April 6 videotaped confession in a different suppression hearing

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challenging the illegality of the Defendant’s arrest. During that hearing, Agent Faulkner

denied that telling the Defendant that he could “walk out that door” if he told the truth was

a part of the Reid technique. At trial, Agent Boyd denied using the Reid technique. Agent

Boyd also said that during the April 6 videotaped interview he believed the Defendant was

“leaving something out” and that he had a duty to explore the things he did not believe the

Defendant was saying were true. Sergeant Daniels testified primarily about his interaction

with the Defendant after the April 6 videotaped statement and the post-confession

statements during the ride to locate the victim’s body. He also said he provided the

Defendant with Miranda warnings on April 4th, prior to conducting the computer voice

stress test.

The Defendant’s suppression hearing was continued, and on May 14, 2021, the

Defendant called social psychologist Dr. Richard J. Ofshe, whom the State stipulated was

an expert in “the field of research into police interrogation tactics.” Dr. Ofshe testified that

he reviewed “the interrogation in [the Defendant’s case,]” and had prepared a report of his

findings, which was admitted into evidence. Dr. Ofshe opined that Agents Boyd and

Faulkner used the Reid technique to interrogate the Defendant. He explained that the Reid

technique uses “evidence ploys” and “motivation tactics.” Evidence ploys are statements

that, if true, would tie a suspect to a crime, while motivation tactics are meant to convince

a suspect it would be in their best interest to confess. Dr. Ofshe reviewed and analyzed

the transcript of the videotaped confession from April 6 and identified various evidence

ploys and motivational tactics used to elicit the Defendant’s confession.

According to Dr. Ofshe, Agents Boyd and Faulkner primarily used the Defendant’s

polygraph test as an evidence ploy. Dr. Ofshe stated the polygraph test was “the only

piece of evidence that is actually explicitly introduced.” Although there was “no scientific

support” for the validity of polygraph tests, Dr. Ofshe said the interrogators pointed to the

Defendant’s test results to accuse him of lying throughout the interrogation. Dr. Ofshe

acknowledged that the Defendant successfully passed two prior computer voice stress tests,

but he opined that the Defendant was unable to maintain his steadfast denial of harming

the victim because the Defendant was unaware of the unreliability of the polygraph test

evidence.

As a motivation tactic, Dr. Ofshe opined the interrogators suggested that what

happened to the victim was accidental, and they implied the Defendant would “get a pass”

if he admitted he did not mean to harm the victim. Dr. Ofshe said this motivation tactic

was intentionally coercive. Dr. Ofshe was asked about the exchange between Agent Boyd

and the Defendant during the videotaped confession when Agent Boyd asks the Defendant

“to tell the truth,” and the Defendant responds that he is telling him what he remembers.

Agent Boyd then responds to the Defendant, “You are telling me what you remember

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because you are worried about getting in trouble[.]” Dr. Ofshe rejected defense counsel’s

premise that Agent Boyd was impliedly threatening the Defendant. Asked if the Reid

technique emphasized “blatant suggestions of threats and promises,” Dr. Ofshe said, “No.

. . . [under the Reid technique] you cannot obtain a confession by changing the suspect’s

reality.” Dr. Ofshe characterized Agent Boyd’s statement, “[If] you tell me the truth . . .

you will walk out that door . . . I can promise you that,” as “blatant promise” of leniency.

Dr. Ofshe said that the Defendant began “trying to remember” what happened after Agent

Boyd made this promise.

Dr. Ofshe said the Defendant relied on Agent Boyd’s promise of leniency “through

to the close of the interrogation, because [the Defendant refers] to the promise that he is

going to be able to leave as one of the very last statements in the interrogation.” Dr. Ofshe

notes the Defendant initially said it’s time to take me home, and then he thought his father

would be angry, so he said take me to the hospital. In reliance on Agent Boyd’s statement,

Dr. Ofshe opined that the Defendant believed he was going home after the interrogation.

Finally, Dr. Ofshe testified that he did not analyze the remaining portions of the

Defendant’s April 6 videotaped interrogation after the Defendant confessed to beating his

son to death because he had not been provided with “empirical evidence” from the case,

and he did not review the Agents testimony because they did not testify at the suppression

hearing as he had anticipated.

On cross-examination, Dr. Ofshe confirmed that he was not a licensed clinical

psychologist, had not personally interviewed the Defendant, and had not been provided

with any corroborative evidence of the Defendant’s statement by defense counsel. He

confirmed that he was told by defense counsel that there was no corroborative evidence in

this case. Although his report reflected that he had not been “‘provided with any discovery

suggesting that evidence consistent with [the Defendant’s] speculations about how his son

was killed has been found[,]’” Dr. Ofshe insisted that his conclusions were not informed

by defense counsel’s opinion that there was no corroboration in this case. Dr. Ofshe denied

his opinion was based on defense counsel’s assessment of the case. He conceded that to

assess the Defendant’s case, he needed an overview of the investigation, that he anticipated

hearing the agent’s testimony, and that that did not happen.

Upon being questioned about the Defendant’s other confessions, Dr. Ofshe said he

had not reviewed them to determine whether they contained coercive police tactics. Asked

about a comment in his report that “the most solid piece of evidence” was the victim had

been seen on the road, Dr. Ofshe agreed that he had received a report from defense counsel

referencing a witness’s statement that he had seen an individual on the road wearing

clothing matching the description of clothing worn by the victim on the day the victim was

reported missing. Dr. Ofshe conceded that he did not include that witness report in the list

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of reports he had received from defense counsel. He agreed that he inferred from the

witness report that the person the witness saw was the victim based on the clothing

described, even though the report stated the person the witness saw “did not look like a

kid[.]” He agreed he had not received the report of Jenny Jones having seen the Defendant

in the early morning hours shortly before the victim was reported missing.

Ultimately, Dr. Ofshe did not conclude that the Defendant’s confession was false,

and he stated that he “never give[s] an opinion about whether or not a statement is true or

false.” He agreed that the focus of his report was to evaluate the coercive nature of the

interrogation, which presupposes the underlying evidence. He agreed the findings of his

report were contingent upon whether the Defendant’s confession was corroborated by other

evidence.

By written order on May 21, 2001, the trial court denied the Defendant’s motion to

suppress, determined that the Defendant’s confession was voluntary, and provided:

Prior to [the polygraph examination], Agent Faulkner advised the

[D]efendant that he did not have to submit to the test, that he was free to

leave and had not been charged with anything. The [[D]efendant stated that

he wanted to “do this[.]” Agent Faulkner then went over the consent form for

the polygraph which stated that he understood he could refuse the test, he

could refuse to answer any question and could terminate the exam at any

point. Agent Faulkner then went over the [D]efendant’s Miranda rights, and

the [D]efendant confirmed that he’d read and understood those rights and

had no questions about his rights.

During the polygraph interview, the [D]efendant stated that he’d had

eight to nine hours of sleep the night before. While he had been diagnosed

as bipolar and had a mental breakdown in 2016, which resulted in

hospitalization, he’d taken his prescribed medication, was in overall good

health, and was not aware of any physical or mental conditions that would

affect his ability to answer questions. At the time, he was thirty years old,

with no prior criminal records as an adult. His educational background

included a degree from a technical school, and he had some college credits.

He worked in I.T. and was in school for training in cyber security.

Following the polygraph, the agents conducted an interview with the

[D]efendant in which they confronted him with what they alleged were false

statements. The interview lasted approximately four hours, and while

Defendant repeatedly denied that he had harmed his son, he eventually

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admitted that he beat the child repeatedly put him in the trunk of a car, and

laid him in a field on McElhiney Road.

....

[T]he [D]efendant was an adult, with extensive education and training in a

highly technical field, indicating a satisfactory level of intelligence. He had

no prior experience with police as an adult but did have some juvenile issues.

The questioning lasted for approximately four hours, and was persistent, but

not extremely prolonged or hostile. He was advised of his Constitutional

rights. He stated that he’d had adequate sleep the night before and knew of

no physical or mental issues that would affect his ability to answer questions.

He was not deprived of food or drink. He was not threatened physically. He

was told that if he told the truth he would walk out of the door. He voluntarily

went to the police station for the polygraph, stating, “I want to do it.” He

never asked to leave, never asked to stop the interview, and never asked for

an attorney. Therefore, this Court finds that under the totality of the

circumstances, the post-polygraph interview was not a custodial

interrogation. . . . Further, the Court finds that the facts in this case

demonstrate that the admission and statements made in the post-polygraph

interview “were made voluntarily and not as the result of the Defendant’s

will being overborne by his interviewers.”

The trial court specifically noted that it considered the testimony of defense expert

Dr. Ofshe, “but in light of the fact that he did not have access to other admissions and

statements of the defendant, the Court [did] not find his opinion to be a basis for

determining that the techniques used by the investigators led the Defendant to make an

involuntary confession.” The court also considered the report of Dr. Kimberly Brown,

introduced from a related hearing, and determined that her opinion that the Defendant’s

confession was “unsupported by factual evidence and inconsistent with the evidence” was

limited to the evidence supplied by the defense. Because the trial had yet to occur, the

court determined that the opinions of Drs. Ofshe and Brown were insufficient to support

the conclusion that the Defendant’s statement was involuntary.

Additionally, in denying the Defendant’s motion for new trial on this issue, the trial

court reasoned that although it had rejected the Defendant’s challenge to the admissibility

of his confession, it did not preclude Dr. Ofshe or Dr. Brown from testifying at trial

regarding their opinion as to the truthfulness of the Defendant’s confession. The trial court

noted that not a “single witness had testified at trial that [the Defendant] had recanted his

opinion. . . . There was much talk by the defense at the trial regarding the fact that this was

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a false confession, that this was recanted, and so forth. But no one to my knowledge

testified to that effect.” The court noted that the truthfulness of the Defendant’s confession

was at issue, and none of the witnesses presented regarding how the Defendant’s

confession was obtained testified at trial.

Applying the above law to the instant case, we disagree with the Defendant that the

circumstances of the interrogation were so coercive as to overbear his will. The Defendant

was twice advised of his Miranda rights before being interviewed on April 6: first, by

Sergeant Daniels in the Defendant’s home on the evening of April 4, before submitting to

the computer voice stress tests, and second at the start of the interview with Agents Boyd

and Faulkner. On both occasions, the Defendant indicated that he understood his rights,

signed a written form waiving them, and agreed to speak with the police.

[A]dequate Miranda warnings [are] significant in our analysis because . . .

“[i]t bears on the coerciveness of the circumstances, for it reveals that the

police were aware of the suspect’s rights and presumably prepared to honor

them. And . . . it bears [on] the defendant’s susceptibility, for it shows that

the defendant was aware he had a right not to talk to the police.”

State v. Griffin, 262 A.3d 44, 71 (Conn. 2021) (citing 2 W. LaFave et al., Criminal

Procedure (4th Ed. 2015) § 6.2 (c), p. 712; McCarty, 468 U.S. at 433 (purpose of Miranda

warning is to “ensure that the police do not coerce or trick captive suspects into confessing

. . . [and] to relieve the inherently compelling pressures generated by the custodial setting

itself, which work to undermine the individual’s will to resist” (emphasis, footnote, and

internal quotation marks omitted))). We are unconvinced that this is one of those rare cases

in which a defendant is coerced into providing a statement after validly waiving his or her

Miranda rights. McCarty, 468 U.S. at 433 n.20; McKinney, 669 S.W.3d at 766.

We acknowledge the testimony of Dr. Ofshe, who opined that the agents’ use of the

polygraph examination was an evidence ploy and the principal reason the Defendant

confessed. Here, we note that while polygraph results are generally inadmissible in court,

both suspects and law enforcement officers place reliance on polygraph examinations.

Suspects voluntarily submit to polygraph examinations to lift the cloud of suspicion, and

law enforcement uses polygraph examination as an investigative tool in criminal cases.

See State v. Vice, 961 N.W.2d 1, 9 (Wis. 2021) (citing Wyrick v. Fields, 459 U.S. 42, 43-

46 (1982); Maryland v. Shatzer, 559 U.S. 98, 101-02 (2010)). It is “unreasonable” for a

suspect in a post-polygraph interview to “assume that [he] would not be informed of the

polygraph readings and asked to explain any unfavorable result.” Wyrick, 459 U.S. at 49.

Said differently, ignoring a defendant’s examination in his post-polygraph interview would

be like ignoring an elephant in the room. Vice, 961 N.W.2d at 14. Immediately following

- 27 -

the polygraph examination, the agents entered the room and stated that there was “no doubt

that [the Defendant] was being untruthful.” Throughout the post-polygraph interview the

agents repeatedly said the Defendant was being untruthful in attempts to explore areas of

their investigation that were inconsistent with the Defendant’s prior statements. About an

hour into the post-polygraph interview, after the Defendant questioned the agents about the

results from the voice test and the polygraph exam, Agent Boyd tells him, “I’m not worried

about the voice analyzer test. I don’t trust them. What I trust is facts.” Agent Faulkner

then states, “We’re not even talking about the polygraph.” Under the circumstances of this

case, we conclude the agents’ use of the polygraph examination was not a coercive State

action.

The Defendant’s central claim is that Agent Boyd’s subsequent comment that the

Defendant could walk out the door if the Defendant told the truth was a “blatant promise

of leniency.” Once again, we acknowledge Dr. Ofshe’s testimony on this issue and

respectfully disagree. When viewed in context of the Defendant’s confession, Agent

Boyd’s comment cannot reasonably be understood as a promise of immunity from

prosecution or a promise of leniency. Agent Boyd’s comment occurred after repeated

statements from the agents that they knew the Defendant was “leaving something out,” and

the agent’s assertions that someone else in the home may have done something to the

victim. The agents insisted that if the Defendant did not do anything to the victim, he knew

who did something to the victim and where the victim’s body was located. When Agent

Faulkner said that the Defendant was telling him what he wanted to hear to avoid “getting

in trouble,” Agent Boyd assured the Defendant that if he told him the truth, he could walk

out the door. Viewed in context, Agent Boyd’s statement is most reasonably understood

to communicate to the Defendant that Agent Boyd had no present intent to arrest the

Defendant, not to relay a promise of immunity from prosecution or leniency. See e.g.,

United States v. Haak, 884 F.3d 400, 413 (2d Cir. 2018). Our view is bolstered by the fact

that after the Defendant confessed and toward the end of the interview, Agent Boyd asked

the Defendant if he wanted to go home, and the Defendant told Agent Boyd he wanted to

go to a hospital. Indeed, the Defendant was not arrested until April 7, after he provided a

written, signed statement. Moreover, the Defendant did not rely on Agent Boyd’s

statement as a promise of immunity or leniency because the Defendant maintained his

original version of events for nearly twenty-five minutes after the statement. The

Defendant then changed his original version and told the agents he let the victim out of the

house but did not remember much else. The Defendant continued to deny fatally harming

the victim for another thirty minutes. After the Defendant confessed and toward the end

of the interview, the Defendant asked Agent Faulkner, “What do they do for, like – like for

this, like -” and Agent Faulkner replied, “Well, we can’t tell you at this point, ok. It will

be talked about later on[.]” These facts indicate the Defendant was not operating under

Agent Boyd’s statement as a promise of immunity from prosecution or leniency at the time

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of confession and that Agent Boyd’s statement did not compel the Defendant to confess.

Additionally, at the time of his interrogation, the Defendant was a relatively well-

educated and intelligent thirty-year-old, having graduated from Dickson County High

School, the Tennessee Technology Center, and a vocational certification program at

Nashville State Community College. Although he had no prior adult criminal record, he

had a juvenile record and thus had some experience with police. He was interviewed for

roughly four-and-a-half hours (pre-polygraph interview approximately one and a half hours

and polygraph examination approximately one hour) but was only subject to the kind of

intense interrogation described by Dr. Ofshe for the last two-and-a-half hours of the post-

polygraph interview. He drove to the interview voluntarily and was not detained

beforehand. He was advised of his constitutional rights and signed a form voluntarily

waiving those rights. Based on the Defendant’s statement that he wanted to “do this” he

appeared motivated to provide a statement and talk to the agents. He was not injured,

intoxicated, or drugged before the interview. Although he had bipolar disorder type-one,

he was managing it with psychiatric medication, which he had taken as directed before the

interview. He stated he had about nine hours of sleep prior to the interview. He was not

denied food or drink and did not require any medical assistance during the interview.

Finally, he was not physically abused, nor was he threatened with abuse. All of these

factors weigh in favor of a determination that the Defendant’s videotaped confession was

voluntary.

We conclude that the Defendant has failed to establish coercive conduct on the part

of the State and failed to establish that his will was overborne. Accordingly, based on the

totality of the circumstances surrounding the Defendant’s statement, we hold that his

statement was not “compelled” in violation of the Fifth Amendment of the United States

Constitution or Article I, section 9 of the Tennessee Constitution.

II. Hearsay Issue. The Defendant also argues that the trial court abused its

discretion in failing to exclude as hearsay utterances by the victim’s three-year-old brother,

“Joe dead, Joe dead, Joe dead,” and the response of his Aunt Joyce, “Yes baby, Joe dead.”

The Defendant concedes the first two components of an excited utterance-the existence of

a startling event and a statement that relates to that event were properly determined by the

trial court. However, the Defendant disputes the third component that Noah and Aunt

Joyce were in a state of distress or excitement at the time the emergency responders

overheard their statements. The Defendant argues that his conviction should be overturned

because the State relied on Noah and Aunt Joyce’s statements, which were inadmissible

hearsay, to corroborate his confession. The State contends that the trial court properly

admitted these statements under the excited utterance exception.

- 29 -

The standard of review for rulings on hearsay evidence has multiple layers. A trial

court’s findings of fact and credibility determinations regarding hearsay are binding on this

court unless the evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450,

479 (Tenn. 2015). However, whether a statement is hearsay and whether a hearsay

exception applies are questions of law and subject to de novo review. Id.

Generally, hearsay is not admissible during a trial unless the statement falls under

one of the exceptions to the rule against hearsay. Tenn. R. Evid. 802. Hearsay is “a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).

Tennessee Rule of Evidence 802 states that “hearsay is not admissible except as provided

by these rules or otherwise by law.” Tenn. R. Evid. 802. Under the excited utterance

exception, the rule against hearsay does not exclude “statement[s] relating to a startling

event or condition made while the declarant was under the stress of excitement caused by

the event or condition.” Tenn. R. Evid. 803(2). “Underlying the excited utterance

exception is the theory that ‘circumstances may produce a condition of excitement which

temporarily stills the capacity of reflection and produces utterances free of conscious

fabrication.’” State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (quoting State v. Land,

34 S.W.3d 516, 528 (Tenn. Crim. App. 2000)). Otherwise explained, the rationale for

admitting such statements is twofold:

First, since this exception applies to statements where it is likely there

was a lack of reflection—and potential fabrication—by a declarant who

spontaneously exclaims a statement in response to an exciting event, there is

little likelihood, in theory at least, of insincerity. . . . Second, ordinarily the

statement is made while the memory of the event is still fresh in the

declarant’s mind. This means that the out-of-court statement about an event

may be more accurate than a much later in-court description of it.

State v. Gordon, 952 S.W.2d 817, 819-20 (Tenn. 1997) (citing Cohen, Paine & Sheppeard,

Tennessee Law of Evidence § 803(2).1 at 532 (3d ed.1995)).

Three requirements must be met for a statement to qualify as an excited utterance:

(1) a startling event or condition that suspend[s] the normal, reflective thought processes

of the declarant, (2) the statement must relate to the startling event or condition, and (3)

that the declarant made the statement while under the stress or excitement from the event

or condition. Franklin, 308 S.W.3d at 823 (citations and internal quotation marks omitted).

The third requirement, that the statement be made while the declarant is under the stress or

excitement from the event or condition, relates most directly to the underlying rationale for

the exception. Gordon, 952 S.W.2d at 820. The question of whether a statement “was

- 30 -

‘made while the declarant was under the stress of excitement caused by the event’” is one

of fact. State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (quoting Tenn. R.

Evid. 803(2)).

The “ultimate test” of whether a statement is admissible within the excited utterance

exception is “spontaneity and logical relation to the main event and where an act or

declaration springs out of the transaction while the parties are still laboring under the

excitement or strain of the circumstances and at a time so near it as to preclude the idea of

deliberation and fabrication.” Franklin, 308 S.W.3d at 823 (quoting State v. Smith, 857

S.W.2d 1, 9 (Tenn.1993)) (internal quotation marks omitted). Gordon emphasized that the

time interval is but one consideration in determining whether a statement was made under

stress or excitement:

Other relevant circumstances include the nature and seriousness of the event

or condition; the appearance, behavior, outlook, and circumstances of the

declarant, including such characteristics as age and physical or mental

condition; and the contents of the statement itself, which may indicate the

presence or absence of stress.

952 S.W.2d at 820. The time interval is material only as a circumstance bearing on the

issue of continuing stress. State v. Banks, 271 S.W.3d 90, 117 (Tenn. 2008) (citing

Tennessee Law of Evidence § 8.07 [3][b] to [3][d], at 8-75 to 8-78) (rejecting a challenge

to the admissibility of statement as excited utterance made four to six hours after the

startling event).

The only competency requirement for an excited utterance under Rule 803(2) is that

the declarant must have had an opportunity to observe the facts contained in the

extrajudicial statement. Land, 34 S.W.3d at 529 (citing Neil P. Cohen et al., Tennessee

Law of Evidence § 803(2).3, at 535 and Tenn. R. Evid. 602). Thus, an excited utterance is

inadmissible if the declarant lacks personal knowledge.

Here, about twelve hours after the victim was murdered, his little brother Noah said,

“Joe dead, Joe dead, Joe dead,” in the presence of emergency responders, and his Aunt

Joyce responded, “Yes baby, Joe dead.” The Defendant filed a motion in limine arguing

that both statements were inadmissible hearsay. The State argued the statements were

exceptions to hearsay as excited utterances, and the trial court agreed reasoning, in relevant

part, as follows:

In this case the court finds that the child and the aunt were in the house

at the time of the alleged whatever took place. The event that took place and

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the situation that led to this child being missing. They were there in the

house. From the testimony at this point in this case has established the

number of people who were inside the house and their identity. Noah and

the aunt were in the house at the time.

Regarding [defense counsel’s] argument that there’s no proof that

they had an opportunity or that they actually witnessed anything, that is true.

There’s no proof thus far that they witnessed anything. But it is proof that

they were inside the house, and this house from the descriptions that have

been seen by video and photograph is apparently a fairly modest mobile

home possibly, a small structure, so that the individuals inside the home

could have very easily been witnesses to something that occurred. They may

not have. But the fact of the matter is, they had an opportunity in this

[c]ourt’s mind to observe something.

Secondly, even though this occurred at later in the morning, the

statements occurred later in the morning, the [c]ourt finds that it was a

situation where there were numerous individuals on the scene, that the

investigators that have testified this morning were there to complete a

Missing Child Report. The child at three years of age that came forward

would clearly have been laboring, in this [c]ourt’s opinion, under the

excitement of all of these investigators and all of these people being in the

house and the unusual circumstances that occurred. And that the aunt would

have also been exposed to this type of situation.

The aunt’s statement was a little more difficult for the [c]ourt to

determine. I think the child’s statement clearly meets the definition in all

regards of the excited utterance. The aunt’s response is somewhat more

difficult, but in reading the case law, the State v. Franklin in particular, it’s

this [c]ourt’s opinion that the aunt’s response to the child could also be

interpreted as an excited utterance. She responds to the child’s statement,

and in view of all of the commotion and chaos that was going on with the

investigation, then this [c]ourt finds that both the aunt and the child would

have been laboring under the excitement at that time[.]

First, the parties seemingly disagree regarding what the trial court determined was

the startling event. The Defendant posits “the trial court did not find that either Noah or

Aunt Joyce were reacting to the event they were discussing (i.e. [the victim’s]

disappearance). Instead, the trial court found that Noah was only reacting to the presence

of law enforcement at the house, and then, presumably, Aunt Joyce was only reacting to

- 32 -

Noah’s question.” The State does not expressly provide its position on what the trial court

determined to be the startling event, relies on the Defendant’s concession, and states “the

statements made by Noah and Joyce speak to the fate of [the victim], and the buzzing

investigation []into the whereabouts of [the victim].”

We acknowledge that the ruling of the trial court is not entirely clear. However, we

conclude that the trial court considered “the event that took place and the situation that led

to [the victim] being missing” or the victim’s abuse and subsequent death to be the startling

event that precipitated the utterances of Noah and Aunt Joyce. Interpreting the court’s

ruling as the Defendant suggests would make the first two paragraphs of the court’s

reasoning obsolete. Moreover, our supreme court has held that while the “startling event”

is usually the act upon which the legal controversy is based, the excited utterance exception

“is not limited to statements arising directly from such events; rather, a subsequent startling

event or condition which is related to the prior event can produce an excited utterance.”

Gordon, 952 S.W.2d at 820. Accordingly, even if Noah and Aunt Joyce’s statements were

made pursuant to the “subsequent startling event” of the investigation, this event, as well

as their statements, clearly “related to the prior event” of witnessing the victim’s abuse and

subsequent death. State v. Williams, No. M2005-00836-CCA-R3-CD, 2006 WL 3431920,

at *8 (Tenn. Crim. App. Nov. 29, 2006). The first two components of the excited utterance

are easily satisfied. Being a witness to the death of the victim is undoubtedly a startling

event that would cause significant stress or excitement, especially for a young child. See

Banks, 271 S.W.3d 90. Noah and Aunt Joyce’s statements directly relate to the victim’s

death. As alluded to by the trial court, the proof at trial also established the Defendant

lived in a small, modest trailer home. Alex specifically testified that Noah and Aunt Joyce

were in the living room and had an opportunity to observe the Defendant while the victim

was lying on the floor. Under these circumstances, we conclude Noah and Aunt Joyce had

personal knowledge of the victim’s death, had an opportunity to observe the facts, and had

personal knowledge of their extrajudicial statements.

We now focus our attention on the more difficult question of whether Noah and

Aunt Joyce’s statements were made while under the stress or excitement of the event or

condition. We consider multiple factors in determining whether a statement was made

under stress or excitement and, therefore, imbued with indicia of reliability. We are also

mindful that the third component is “most directly” related to the underlying rationale for

the excited utterance hearsay exception. Gordon, 952 S.W.2d at 820. While the time

interval between the startling event and the utterance of the statement is significant,

“spontaneity . . . is the essential test of admissibility [and] the lapse of time after the

occurrence of an event is not as important as the condition of the speaker’s mind.”

Williams, 2006 WL 3431920, at *9 (internal citations omitted). Some of the factors helpful

in determining whether Noah made the statements under the stress or excitement of the

- 33 -

victim’s death include his demeanor, age, and the severity of the startling event. Id. at *10

(affording considerable latitude in temporal proximity in cases involving assertions by very

young children after a stressful experience . . . [because] children of tender years are

generally not adept at reasoned reflection and concoction of false stories under such

circumstances); State v. Wyma, No. E2007-01999-CCA-R3-CD, 2008 WL 11629342, at

*9 (Tenn. Crim. App. Sept. 10, 2008) (admitting utterance of child abuse victim five days

after the significant event and noting the significance that the victim uttered the statement

spontaneously).

The record does not provide an exact timeframe between the startling event and the

time Noah made the statement. The abuse was observed sometime after nine at night, and

Noah’s utterance was made at around nine the following morning. As such, there were

approximately twelve hours between the startling event and the statement, a factor that

does not weigh in favor of the statement’s admissibility. However, Noah’s age, three, and

the severity of the startling event, witnessing the beating death of his brother, are factors

that weigh in favor of the statement’s admissibility. While there was very little evidence

regarding his demeanor, Noah repeated the phrase “Joe dead” three times. The phrase was

spontaneous and not in response to any questions. The phrase was described as being

spoken in a loud tone or voice. Upon uttering the phrase, Aunt Joyce picked up Noah, an

indication of comforting the child. The nature of the event, the beating death of his five-

year-old autistic brother, and the spontaneous nature of the statement strongly support the

conclusion that Noah was still laboring under the stress caused by the startling event at the

time of the utterance. Because Noah made the statement during law enforcement’s

response to the disappearance of the victim also lends credence to our conclusion that the

stress of the startling event was ongoing. Based on these factors, there is little likelihood

that Noah’s repeated and spontaneous utterance, “Joe dead” was fabricated or insincere.

Accordingly, under the facts and circumstances of this case, we conclude that the trial court

properly admitted Noah’s statements under the excited utterance exception to the hearsay

rule.

The same cannot be said about Aunt Joyce’s response, “Yes baby, Joe dead.” There

was no proof concerning her age and demeanor. The record is devoid of any evidence

concerning the circumstances of Aunt Joyce’s response. The sole factor that weighs in

favor of her response's admissibility is the severity of the event. Given the almost twelve

hours between the startling event and Aunt Joyce’s statement and the lack of proof, we

cannot conclude that Aunt Joyce was laboring under the stress or excitement of the startling

event when she said, “Yes baby, Joe dead.” Accordingly, the trial court erred in admitting

the response, “Yes baby, Joe dead.” However, any error in the admission of Aunt Joyce’s

response was harmless because, as previously discussed, sufficient evidence exists to

corroborate the Defendant’s confession without it.

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III. Relevance of Facebook Messages. The Defendant challenges the trial court’s

admission of his wife’s Facebook messages into evidence, arguing that the messages were

irrelevant and substantially more prejudicial than probative due to their sexually explicit

nature. The State counters that the messages, along with the Defendant’s cell phone data

from the same period, were relevant to advance the State’s theory at trial that the Defendant

either lost control while punishing the victim or killed the victim to prevent Daniels from

leaving him. The State further submits the messages carried a relatively low degree of

prejudice toward the Defendant because there was only one message involving a sexual

encounter of the Defendant and the rest involved Daniels. As such, the State contends the

trial court did not abuse its discretion in admitting the evidence.

Evidence is relevant if it has “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Tenn. R. Evid. 401. Irrelevant evidence is inadmissible.

Tenn. R. Evid. 402. Otherwise, relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Tenn. R. Evid. 403.

Unfair prejudice has been defined by the Tennessee Supreme Court as “‘[a]n undue

tendency to suggest decision on an improper basis, commonly, though not necessarily an

emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid.

403, Advisory Committee Notes). “Prejudice becomes unfair when the primary purpose

of the evidence at issue is to elicit emotions of ‘bias, sympathy, hatred, contempt,

retribution, or horror.’” State v. Young, 196 S.W.3d 85, 106 (Tenn. 2006) (citations and

internal quotation marks omitted). Rule 403 “is narrow in its application” and parties

“seeking to exclude otherwise admissible and relevant evidence have a significant burden

of persuasion.” State v. Saylor, 117 S.W.3d 239, 249 (Tenn. 2003) (quoting White v.

Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)) (internal quotation marks

omitted).

The admissibility of evidence rests within the trial court’s sound discretion, and this

court will not overturn a trial court’s decision regarding the admissibility of the evidence

absent an abuse of that discretion. State v. Clayton, 535 S.W.3d 829, 859 (Tenn. 2017).

A trial court is found to have abused its discretion when it “applies an incorrect legal

standard or reaches a conclusion that is ‘illogical or unreasonable and causes an injustice

to the party complaining.’” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting

State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)). “Questions concerning . . . the weight

and value of the evidence, as well as all factual issues raised by the evidence are resolved

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by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

Here, the Defendant filed a motion in limine to exclude statements his wife made to

law enforcement, arguing they were testimonial in nature and subject to exclusion under

the confrontation clause. U.S. Const. amends. VI, XIV. The State agreed to exclude the

statements before trial. However, at trial, the State sought to admit his wife’s Facebook

messages into evidence. The State argued the messages were relevant to the Defendant’s

motive and that the Defendant’s motion in limine did not apply because the messages were

non-testimonial. The Defendant then argued that the messages were irrelevant because

there was no evidence the Defendant read them and that they were substantially more

prejudicial than probative. The trial court found that the Defendant’s contemporaneous

text messages to his mother expressing suicidal ideation “circumstantially indicate[d] that

[the Defendant] read [the Facebook messages] or was aware” that his wife considered

leaving the Defendant for her paramour. The court also found that the messages were

relevant “to show motive and intent” and that their “relevance outweigh[ed] any prejudice

to the [D]efendant.”

The Defendant’s argues that the messages are irrelevant because they do not relate

to the victim’s death, and there is no proof the Defendant read them. While it is true the

messages are not directly related to the victim’s death, they need not be to clear the low

bar for relevance under Rule 401. Similarly, the lack of direct evidence showing that

Defendant read the messages goes to its weight, not admissibility. This is especially true

in light of the trial court’s finding that the Defendant’s contemporaneous text messages

“circumstantially indicate[d] that [the Defendant] read [the Facebook messages] or was

aware” that his wife contemplated leaving him another man. The Defendant also argues

that, even if he read the messages, they would only give him a motive to hurt his wife or

her paramour, not the victim. We disagree. The Defendant searched the internet for

information on surreptitious paternity tests just two days after his wife and her paramour

discussed plans to visit each other and fantasized about the sexual encounters they would

have at length. The trial court found that this set of facts put the Defendant’s marital and

mental stability into question, which, in turn, made them relevant to the issue of motive.

We conclude that the trial court did not abuse its discretion in finding the Facebook

messages were relevant to the Defendant’s motive. A jury could draw several reasonable

inferences from the Facebook messages and the Defendant’s cell phone data. The jury

could have inferred that the Defendant came to suspect the victim was not his biological

son after reading about his wife’s past sexual encounters. Or perhaps, as the State argued

at trial, the jury could have inferred that the Defendant saw that his wife asked her paramour

if she could survive on her own by combining income from a job with the monthly

disability payment she received to help care for the victim, concluded that his wife would

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be unable to leave him if she was ineligible for the disability payment, and then decided to

kill the victim. These are all fact determinations for a jury to draw, and the Facebook

messages were relevant to each. We conclude the trial court did not abuse its discretion in

finding that the probative value of the Facebook messages was not substantially

outweighed by the risk of unfair prejudice. Accordingly, the Defendant is not entitled to

relief.

CONCLUSION

Based on the foregoing, the judgments of the trial court are affirmed. However, as

noted previously, the judgment form for count one erroneously reflects the Defendant was

convicted of first-degree murder, and we remand count one for entry of corrected judgment

to reflect the conviction offense of second-degree murder.

S/ Camille R.

McMullen____________

CAMILLE R. MCMULLEN, PRESIDING JUDGE

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