# State of Tennessee v. Joseph Ray Daniels

> Court of Criminal Appeals of Tennessee · January 6, 2025

URL: https://www.frixlaw.com/law-library/cases/10776700

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** January 6, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge Camille R. McMullen
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10776700

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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
___________________________________

No. M2023-00158-CCA-R3-CD
___________________________________

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.

1
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
-5-
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
- 13 -
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
- 18 -
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.
- 20 -
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
- 22 -
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
- 23 -
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
- 24 -
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
- 25 -
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
- 26 -
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
- 28 -
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
- 31 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10776700. Public record. Not legal advice.