State of Tennessee v. Lemaricus Devall Davidson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 21, 2014 Session

STATE OF TENNESSEE v. LEMARICUS DEVALL DAVIDSON

Appeal from the Criminal Court for Knox County

No. 86216B Walter C. Kurtz, Judge 1

No. E2013-00394-CCA-R3-DD - Filed March 10, 2015

The defendant, Lemaricus Devall Davidson, appeals the Knox County Criminal Court jury

convictions of two counts of first degree murder, two counts of especially aggravated

robbery, two counts of especially aggravated kidnapping, three counts of aggravated rape,

and one count of facilitation of aggravated rape that he received for his role in the January

2007 deaths of C.N. and C.C.2 The defendant claims that: the trial court erred by refusing

to suppress evidence obtained during the searches of his residence, his statements to the

police following his arrest, and evidence obtained during searches of his person; the trial

court erred by admitting into evidence postmortem photographs of the victims; the trial court

should have excluded testimony and evidence regarding fingerprint examination and

ballistics testing; the trial court erred by permitting courtroom spectators to wear buttons

emblazoned with photographs of the victims during the guilt phase; the State violated his

constitutional rights by intercepting and examining privileged communications to and from

his attorneys; structural constitutional error occasioned by the out-of-court behavior of the

trial judge entitles him to a new trial; the second successor trial judge erred by concluding

that he could fulfill the statutory duty of thirteenth-juror review; the evidence was insufficient

to support his convictions; errors related to the presentment require dismissal of the charges;

the trial court erred by permitting jurors to submit questions for the witnesses; the trial court

erred by allowing spectators to remain in the courtroom while jurors reviewed the

defendant’s videotaped statement as part of their deliberations; the trial court should have

dismissed the presentment due to constitutional deficiencies in the jury venire; the trial court

erred by refusing to allow him to present evidence of the economic costs associated with the

1

Judge Richard Baumgartner presided over the defendant’s case until he resigned in March 2011.

Our supreme court appointed Senior Judge Jon Kerry Blackwood to take over, and he remained on the case

until he recused himself. Our supreme court then appointed Judge Walter B. Kurtz to preside over the case.

2

It is the policy of this court to refer to the victims of sexual assault by their initials.

implementation of the death penalty; and the trial court erred by excusing those jurors who

were not “death qualified.” The defendant also raises a number of challenges to the death

penalty in general and its application in this case specifically. Because we conclude that no

reversible error attends the convictions or sentences in this case and because it is our view,

after a mandatory review, that the sentences of death imposed in this case were not

disproportionate, we affirm the judgments of the trial court. We detect, however, clerical

errors that require that the case be remanded for entry of corrected judgment forms.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY

T HOMAS, J R., and R OBERT L. H OLLOWAY, J R., JJ., joined.

David M. Eldridge and Douglas A. Trant, Knoxville, Tennessee, for the appellant, Lemaricus

Devall Davidson.

Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; Randall E. Nichols, Assistant District Attorney General; and Leland Price and

Takisha Fitzgerald, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Knox County Grand Jury charged the defendant, George Thomas, Letalvis

3

Cobbins , and Vanessa Coleman with eight counts of the first degree felony murder of C.N.,

eight counts of the first degree felony murder of C.C., one count of the first degree

premeditated murder of C.N., one count of the first degree premeditated murder of C.C., one

count of the especially aggravated robbery of C.N., one count of the especially aggravated

robbery of C.C., two counts of the especially aggravated kidnapping of C.N., two counts of

the especially aggravated kidnapping of C.C., five counts of the aggravated rape of C.N., 15

counts of the aggravated rape of C.C., one count of theft of property from C.C. valued at

$10,000 or more but less than $60,000, and one count of theft of property from C.N. valued

at less than $500.

The defendant’s case proceeded to trial in October 2009, and the evidence

adduced at that trial established that on December 28, 2006, Stacy Lawson, the girlfriend of

Mr. Thomas, drove Mr. Thomas, Mr. Cobbins, and Ms. Coleman from Kentucky to the

defendant’s residence at 2316 Chipman Street (“Chipman Street residence”) in Knoxville.

Ms. Lawson returned to Kentucky on January 2, 2007, but the others remained at the

3

Mr. Cobbins is the half-brother of the defendant.

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Chipman Street residence. Daphne Sutton, who was the defendant’s girlfriend at the time

and who had been living in the Chipman Street residence with the defendant, moved out of

the Chipman Street residence on January 5, 2007. Mr. Thomas, Mr. Cobbins, Ms. Coleman,

and the defendant remained at the Chipman Street residence.

On Saturday, January 6, 2007, C.N. and C.C. made plans to meet at the

Washington Ridge Apartments in Knoxville, go out to dinner, and then join friends at a party.

When the couple did not arrive at the party by 10:00 p.m., their friends called and sent

messages to the victims’ cellular telephones. At approximately 11:00 p.m., two of those

friends drove to the Washington Ridge Apartments, where C.C. had last been seen, and

discovered C.N.’s truck parked in the parking lot. C.C.’s silver Toyota 4Runner was gone,

which struck the friends as odd because the couple typically traveled in C.N.’s truck. Further

attempts throughout the night to contact C.N. and C.C. via telephone proved unsuccessful.

At approximately 12:30 a.m. on Sunday, January 7, 2007, C.C. telephoned her

parents and told her father that she would be home later after watching a movie. C.C.’s

mother stayed up to await her daughter’s arrival. When C.C. did not arrive home by 3:30

a.m., C.C.’s mother called C.C.’s cellular telephone but received no answer. C.C.’s mother

fell asleep at approximately 6:00 a.m., but when she awoke a few hours later, she resumed

calling C.C.’s cellular telephone.

Although they had initially assumed that C.N. had spent the night of January

6, 2007, at a friend’s house, C.N.’s parents became concerned for his safety after C.C.’s

mother informed them that C.C. had not arrived for work. They checked the local hospitals

and stayed by the telephone throughout the day and evening but heard no word of the

whereabouts of either victim.

At 12:20 p.m. on Sunday, January 7, a train engineer with Norfolk Southern

Corporation discovered the badly burned and partially nude body of a 20- to 25-year-old man

near the train tracks at Cherry Street. At approximately 8:30 a.m. on the following morning,

the body was identified as C.N.

When C.C. did not arrive for work as scheduled on the afternoon of January

7, 2007, her family began to search for her. Utilizing information from C.C.’s cellular

telephone service carrier, they learned that the telephone had last been used at approximately

12:30 a.m. in the Cherry Street area of Knoxville. Family and friends, with the help of a

friend who was a former member of law enforcement, organized a grid search of the Cherry

Street area. At 1:30 a.m. on Monday, January 8, 2007, members of the search party

discovered C.C.’s silver Toyota 4Runner abandoned at the corner of Chipman and Glider

Streets. Knoxville Police Department (“KPD”) Senior Evidence Technician Daniel

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Crenshaw arrived approximately one-half hour later and performed the preliminary

processing of C.C.’s vehicle at the scene. He photographed the vehicle and dusted the

exterior for fingerprints before having the car towed to the police impound lot. No further

processing was conducted on the vehicle until later that evening.

Witnesses who worked or lived near the Chipman Street residence testified that

a lot of activity occurred near the residence shortly after midnight on Sunday, January 7,

2007. One witness recalled having seen four black individuals in a Toyota 4Runner at

approximately 12:30 a.m., which vehicle the witness saw parked near the railroad tracks later

that morning. Another witness heard “three loud pops” at approximately 1:45 a.m. on

Sunday morning. A third witness saw smoke rising from the area of the railroad tracks at

7:45 a.m. on January 7, 2007.

When Mr. Crenshaw returned to work at 11:00 p.m. on Monday, January 8, he

collected a bank envelope from the back seat of C.C.’s 4Runner and processed it for

fingerprints. At 2:45 a.m. on Tuesday, January 9, Mr. Crenshaw identified the fingerprint

he discovered on the envelope as belonging to the defendant. He then determined the

defendant’s address to be 2316 Chipman Street. Mr. Crenshaw notified Investigator Todd

Childress of the preliminary fingerprint identification. Tim Schade, another KPD evidence

technician, verified the fingerprint identification at approximately 8:00 a.m. on January 9.

At 12:53 p.m. on Tuesday, January 9, 2007, Investigator Childress obtained a

warrant to search the Chipman Street residence. Officers entered the residence at 1:39 p.m.

and three minutes later, while securing the scene, discovered C.C.’s body in a large trash can

in the kitchen. Doctor Darinka Mileusnic-Polchan, Knox County Medical Examiner, arrived

at the residence at 2:04 p.m. and directed that the trash can with C.C.’s body inside it be

transported to the medical examiner’s office.

On Thursday, January 11, 2007, officers arrested the defendant at an

abandoned house in the Western Heights area of Knoxville. Following an admonition and

waiver of rights, the defendant gave a two-and-one-half-hour statement concerning the

robbery, kidnapping, rape, and murder of the victims. Although the defendant initially

denied being present at the Chipman Street residence during the preceding weekend, he

ultimately admitted that he had some interaction with C.C. but denied having had sex with

her. He specifically denied having met either of the victims before January 6, 2007.

Special Agent Robert Watson of the Tennessee State Fire Marshal’s Office

detected the presence of an accelerant in the soil near C.N.’s body. Agent Watson gathered

samples of the soil, and testing performed by the Tennessee Bureau of Investigation (“TBI”)

confirmed the presence of gasoline in the soil samples.

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Mr. Crenshaw’s analysis of items recovered during the search of the Chipman

Street residence revealed the defendant’s fingerprints on three of the five trash bags that had

contained C.C.’s body. Witnesses identified other items found in the home – articles of

clothing, notes, documents, the contents of a purse, and a personalized iPod – as belonging

to C.C. Additionally, C.N.’s mother identified a pair of Nike Shox shoes as those purchased

by C.N. six weeks before his death. Various associates of the defendant testified that they

had received from the defendant clothing items later identified as belonging to C.C.

Witnesses testified that the defendant had possessed the guns discovered during

the search of the Chipman Street residence. Ballistics testing to match those guns with

bullets recovered from C.N.’s body produced inconclusive results.

Deoxyribonucleic acid (“DNA”) analysis established the presence of the

defendant’s semen in C.C.’s vagina and rectum and on her blue jeans. Mr. Cobbins’ DNA

was found in C.C.’s mouth and on her blue jeans, sweater, and tank top. DNA testing of the

floral fabric used to bind C.C. established the presence of DNA belonging to C.C., Mr.

Cobbins, and Ms. Coleman. Forensic testing performed on the anal swab conducted during

C.N.’s autopsy established the presence of semen, but the only DNA profile identified in that

sample belonged to C.N.

Doctor Mileusnic-Polchan performed an autopsy of both victims. C.N. had

been bound at the ankles by a belt and a strip of fabric and at the wrists with “something like

a shoelace.” He had also been blindfolded and gagged, and his head had been wrapped in

a sweatshirt. Based upon the location of unburned skin on his body, she determined that he

had been wrapped in “some sort of comforter and placed face up” before being set on fire.

C.N. suffered three gunshot wounds. A contact gunshot wound to his head severed his brain

stem, causing “instantaneous death.” A gunshot wound “between the back of the neck and

the shoulders” did not “cause any major damage.” Another gunshot wound entered C.N.’s

back and traveled “steeply upward” where it caused severe damage to his spinal chord.

Lacerations, abrasions, and bruising in the area of C.N.’s anus indicated anal penetration that

occurred before his death. Dirt and soil on C.N.’s feet indicated that he had been walking

barefoot before his death. C.N.’s blood tested positive for the presence of amphetamines,

alcohol, and marijuana.

C.C.’s body was inside the trash can, and strips of fabric had been used to bind

her body into a fetal position. A small plastic bag had been tied around her head, and then

her body had been placed in five different large garbage bags before being placed into the

trash can. She was nude from the waist down. The autopsy findings indicated that C.C. died

inside the trash can of a combination of positional asphyxiation due to the position of her

body, suffocation due to the plastic bag on her face, and mechanical asphyxiation due to

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being placed in the confined space of the trash can with bedding. Blood and other fluids

were smeared around her abdomen and upper chest. She suffered “excoriations” – “like a

carpet burn” – to her lower back and upper buttocks. C.C.’s anogenital region sustained

“tremendous damage.” She had tears to her vagina and rectum as well as severe blunt force

trauma to the area. Doctor Mileusnic-Polchan explained,

[T]he whole area was just a blunt-force trauma which is

bruising, contusion, and abrasions, and lacerations. . . . The

depth of the injury was so grave that there’s no way that just a

regular rape could – could inflict this. . . . [T]his is an object

coming in contact with the body to inflict the serious injury of

this kind.

C.C. also suffered blunt force trauma to her head, contusions on her shoulders, bruising on

her arms, and a small cut on her hand. She suffered a torn frenulum, which was likely caused

by something being forcefully put into her mouth. C.C.’s blood was negative for drugs and

alcohol.

Based upon this evidence, the jury found the defendant guilty of 16 counts of

felony murder, two counts of premeditated murder, two counts of especially aggravated

robbery, four counts of aggravated kidnapping, nine counts of the aggravated rape of C.C.,

three counts of facilitation of the aggravated rape of C.N., one count of theft of property

valued at $10,000 or more but less than $60,000, and one count of theft of property valued

at less than $500. The trial court merged the jury verdicts of felony murder and premeditated

murder into one count of felony murder and one count of premeditated murder for each

victim and proceeded to the penalty phase of the trial.4

During the penalty phase, the State presented evidence of the defendant’s prior

conviction of aggravated robbery in support of the prior violent felony aggravating

circumstance. C.N.’s sister, mother, and father testified concerning the impact of C.N.’s

death on their family. Similarly, C.C.’s brother and mother testified concerning the impact

of C.C.’s death on their family.

The defendant presented evidence through the testimony of a mitigation

specialist, Rosalind Andrews, concerning the multi-generational history of “violence, incest,

and alcohol abuse” that permeated the defendant’s family. Family members testified that the

defendant’s mother suffered a history of mental illness, drug addiction, and prostitution.

4

Following the jury verdicts, the State dismissed those counts charging the defendant with the felony

murder of C.N. during the rape of C.N. and the felony murder of C.C. during the rape of C.N.

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Alice Rhea testified that she and her husband had operated a group home for

troubled teenaged boys and that the defendant had lived in the group home for some time.

She recalled that the defendant stayed longer than was customary because his placement in

the home had been “forgotten.” Ms. Rhea introduced the defendant to the Rudd family in

hopes that they might remove the defendant from bad influences in Memphis. She recalled

that the defendant “had such potential. He was a thrown away child.”

Members of the Rudd family testified that the defendant lived with them for

approximately one-and-one-half years while still in high school and before his conviction of

aggravated robbery. The Rudds testified that the defendant was helpful and respectful and

excelled as an athlete while enrolled in a Jackson private school with their son. The

defendant was asked to leave their home, however, when the Rudds discovered that he had

been using marijuana. The Rudds asked that the jury be “merciful enough to let [the

defendant] live.”

Doctor Peter Brown testified that the defendant’s early childhood presented all

the psychological risk factors for future violent behavior, creating a “statistical inevitability”

that he would engage in violent behavior as an adult. Doctor Brown testified that the

defendant was of above-average intelligence and that he presented a low risk for violence in

a structured setting. He opined, however, that “all bets are off” concerning the defendant’s

violent behavior when under the influence of drugs or alcohol.

Based upon the proof presented during both the guilt and penalty phases of the

trial, the jury found that the murders were “especially heinous, atrocious, or cruel, in that”

the murders “involved torture or serious physical abuse beyond that necessary to produce

death,” see T.C.A. § 39-13-204(i)(5); that the murders were “committed for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or

another,” see id. § 39-13-204(i)(6); and that the murders were “knowingly committed,

solicited, directed, or aided by the defendant, while the defendant had a substantial role in

committing or attempting to commit” an aggravated robbery, aggravated kidnapping,

aggravated rape, or theft, see id. § 39-13-204(i)(7). Additionally, with respect to the murder

of C.N., the jury found that the defendant “knowingly mutilated the body of the victim after

death.” See id. § 39-13-204(i)(13). The jury further determined that these aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt and

imposed sentences of death for each conviction of first degree murder. The trial court then

further merged offenses and sentences into two convictions of first degree murder and two

sentences of death.

Following a sentencing hearing, the trial court merged the two jury verdicts of

especially aggravated kidnapping of C.N. into one conviction of especially aggravated

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kidnapping and imposed a sentence of 40 years for that conviction. The trial court also

merged the jury verdicts of facilitation of aggravated rape of C.N. into a single conviction

and imposed a sentence of 20 years. The court merged the jury verdict of theft of property

valued at $500 or less into the conviction of the especially aggravated robbery of C.N. and

imposed a sentence of 40 years. The court ordered that the sentences be served concurrently

with one another and to the sentence of death imposed for the murder of C.N.5

The trial court merged the jury verdicts of the especially aggravated kidnapping

of C.C. into a single conviction of especially aggravated kidnapping and imposed a sentence

of 40 years. The court merged the nine convictions of the aggravated rape of C.C. into three

convictions of the aggravated rape of C.C. and imposed sentences of 40 years for each

conviction. The court merged the conviction of the theft of property valued at $10,000 or

more but less than $60,000 into the conviction of the aggravated robbery of C.C. and

imposed a 40-year sentence. The court ordered that the sentences be served concurrently to

one another and concurrently to the sentence of death imposed for the murder of C.C.6 The

trial court ordered that the sentences of death for the murders of the victims be served

consecutively.

In a timely motion for new trial, the defendant alleged 58 separate grounds for

relief. Before the motion could be heard, however, the trial judge “resigned from the bench

after pleading guilty to one count of official misconduct.” State v. Letalvis Cobbins,

Lemaricus Davidson, and George Thomas, No. E2012-00448-SC-R10-DD (Tenn. May 24,

2012) (Order) (“Rule 10 Order”). The first successor trial judge “determined that he could

not perform the thirteenth-juror review because the credibility of the original trial judge had

been called into question by his misconduct outside the courtroom” and that “the original trial

judge’s misconduct constituted structural error” and granted the defendant’s motion for new

trial. See id. Upon review pursuant to Rule 10 of the Tennessee Rules of Appellate

Procedure, our supreme court concluded that the first successor judge had erred by

considering the trial judge’s credibility as part of his thirteenth-juror review and by

concluding that the trial judge’s out-of-court conduct amounted to structural error requiring

a new trial. See id. The high court vacated the order granting the defendant a new trial and

remanded the case for the first successor judge “to determine expeditiously, under the

standards articulated herein, whether he is able to fulfill his duty to perform thirteenth-juror

review.” See id.

5

We note that the trial court imposed sentences and entered separate judgments of conviction for the

merged offenses. We will address this error later in our opinion.

6

Again, the trial court erroneously imposed sentences and entered separate judgments of conviction

for the merged offenses but accurately indicated merger in each of the judgments.

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Upon remand, the first successor trial judge again concluded that he was unable

to perform the statutorily required review as thirteenth juror, and the State moved the first

successor judge to recuse himself. The first successor judge denied the State’s recusal

motion, and this court granted the State’s application for extraordinary appeal pursuant to

Rule 10 of the Tennessee Rules of Appellate Procedure. We concluded that the first

successor judge erred by denying the State’s recusal motion and ordered him recused from

the case.

Our supreme court then appointed Judge Kurtz as the second successor trial

judge. Judge Kurtz determined that he could perform thirteenth-juror review and then denied

the defendant’s motion for new trial. The defendant then filed a timely notice of appeal.

In this appeal, the defendant alleges that: the trial court erred by denying his

motion to suppress evidence obtained during the searches of the Chipman Street residence;

the trial court erred by denying his motion to suppress his statements to the police following

his arrest; the trial court erred by denying his motion to suppress evidence obtained during

searches of the defendant’s person on January 19, 2007, and March 13, 2008; the trial court

abused its discretion by admitting into evidence photographs taken of the victims after their

deaths; the trial court erred by denying his motion to exclude testimony and evidence related

to fingerprint examination; the trial court erred by denying his motion to exclude testimony

and evidence related to the results of ballistics testing; the trial court erred by permitting

courtroom spectators to wear and display buttons depicting the victims during the guilt phase

of the trial; the State violated the defendant’s constitutional rights by intercepting and

examining privileged communications between the defendant and his attorneys; structural

constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to

a new trial; the second successor trial judge erred by concluding that he could fulfill the

statutory duty of thirteenth-juror review; the evidence was insufficient to support his

convictions; the presentment was constitutionally insufficient; the presentment failed to

adequately charge the defendant with liability for the offenses under a theory of criminal

responsibility; the trial court erred by permitting jurors to submit questions for the witnesses;

the trial court erred by permitting the jury to review the defendant’s video-recorded pretrial

statement to police in open court during its deliberations; the trial court erred by denying the

defendant’s motion to dismiss the presentment based upon the “unconstitutional composition

of the jury venire”; the trial court erred by excluding evidence of the economic costs of the

death penalty; the economic costs of the death penalty render it unconstitutional; the trial

court erred by excluding those potential jurors who were not “death qualified”; imposition

of the death penalty in this state violates various constitutional provisions; the State’s Notice

of Intent to Seek the Death Penalty was invalid because it was not returned by a grand jury;

the sentence of death should be set aside based upon “gross racial disproportionality” in the

imposition and execution of the death penalty; existing procedures for the imposition of the

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death penalty fail to meet minimum constitutional standards as described by the Supreme

Court; the imposition of the death penalty in this case violates the defendant’s constitutional

rights to substantive due process and equal protection under the law; the sentence of death

was unconstitutional because the aggravating circumstances alleged by the State and found

by the jury were not subjected to grand jury review; and the presentation of victim impact

evidence during the penalty phase violated the defendant’s right to due process and rendered

the hearing fundamentally unfair. We consider each of the defendant’s claims although not

necessarily in the order presented.

I. Structural Error

We consider first the defendant’s claim of structural error based upon the out-

of-court behavior of the trial judge because the judge’s behavior, his subsequent plea of

guilty to criminal charges and resulting resignation, and the media frenzy that those events

created have loomed large over what was an already highly-publicized case. As indicated

above, after the trial judge resigned from the bench following his plea of guilty to official

misconduct, the defendant then sought a new trial based upon his claim that the trial judge’s

misconduct constituted structural error. Our supreme court concluded that the record did not

support a conclusion that the trial judge’s out-of-court misconduct had resulted in structural

error requiring a new trial. See Rule 10 Order, slip op. at 3-4. In this appeal, the defendant

revives his claim of structural error and argues that our supreme court erred by requiring a

showing of prejudice under the circumstances of this case. The State asserts that the law-of-

the-case doctrine prohibits this court from making a ruling on this issue.

Like our supreme court, we do not condone or excuse the trial judge’s out-of-

court malfeasance. That being said, our supreme court has held that “a trial judge’s

out-of-court misconduct, by itself” does not “constitute[] structural error unless there is proof

that the misconduct affected the trial proceedings.” Rule 10 Order, slip op. at 3 (citing State

v. Benson, 973 S.W.2d 202, 206 (Tenn. 1998)). Our supreme court concluded that although

the trial judge’s out-of-court misconduct in this case was reprehensible, the record contained

no proof that his misconduct “affected the integrity of the trials.” Rule 10 Order, slip op. at

4. Two important principles of law prohibit us from revisiting that ruling.

First, the law-of-the-case doctrine prevents this court from considering the

defendant’s claim of structural error because that issue was already decided by our supreme

court in a previous appeal in the same case. Our supreme court addressed the law-of-the-case

doctrine in great detail in Memphis Publishing Company v. Tennessee Petroleum

Underground Storage Tank Board:

The phrase “law of the case” refers to a legal doctrine

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which generally prohibits reconsideration of issues that have

already been decided in a prior appeal of the same case. In other

words, under the law of the case doctrine, an appellate court’s

decision on an issue of law is binding in later trials and appeals

of the same case if the facts on the second trial or appeal are

substantially the same as the facts in the first trial or appeal.

The doctrine applies to issues that were actually before the

appellate court in the first appeal and to issues that were

necessarily decided by implication. The doctrine does not apply

to dicta.

The law of the case doctrine is not a constitutional

mandate nor a limitation on the power of a court. Rather, it is a

longstanding discretionary rule of judicial practice which is

based on the common sense recognition that issues previously

litigated and decided by a court of competent jurisdiction

ordinarily need not be revisited. This rule promotes the finality

and efficiency of the judicial process, avoids indefinite

relitigation of the same issue, fosters consistent results in the

same litigation, and assures the obedience of lower courts to the

decisions of appellate courts.

Therefore, when an initial appeal results in a remand to

the trial court, the decision of the appellate court establishes the

law of the case which generally must be followed upon remand

by the trial court, and by an appellate court if a second appeal is

taken from the judgment of the trial court entered after remand.

There are limited circumstances which may justify

reconsideration of an issue which was [an] issue decided in a

prior appeal: (1) the evidence offered at a trial or hearing after

remand was substantially different from the evidence in the

initial proceeding; (2) the prior ruling was clearly erroneous and

would result in a manifest injustice if allowed to stand; or (3) the

prior decision is contrary to a change in the controlling law

which has occurred between the first and second appeal.

Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,

306 (Tenn. 1998) (citations omitted). None of the delineated exceptions apply here. The

defendant offered no new evidence following the remand by our supreme court, and there

has been no change in the controlling law. Moreover, we cannot say that the ruling of our

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supreme court was “clearly erroneous.” In consequence, the law-of-the-case doctrine

requires that we adhere to the ruling of our supreme court that the out-of-court misconduct

of the trial judge did not constitute structural error in this case.

Second, even assuming for the sake of argument that we disagreed with the

previous ruling of our supreme court, we lack the authority to overturn the ruling because the

allocation of judicial power in this state forbids us from doing so. Our supreme court “is a

direct creature of the [state] Constitution and constitutes the supreme judicial tribunal of the

state and is a court of last resort.” Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976). This

court and “[a]ll other courts are constitutionally inferior tribunals subject to the actions of the

Supreme Court.” Id. The adjudications of the supreme court “are final and conclusive upon

all questions determined by it, subject only to review, in appropriate cases by the Supreme

Court of the United States.” Id. (citing Railroad v. Bryne, 104 S.W. 460 (1907)).

Accordingly, because our supreme court has already ruled that the malefactions

of the trial judge did not occasion structural error in this case, we cannot consider the issue

in this appeal.

II. Motion to Suppress Evidence Obtained During the January 9, 2007 Searches of the

Chipman Street Residence

The defendant asserts that the trial court erred by denying his motion to

suppress the evidence obtained during the searches of his Chipman Street residence on

January 9, 2007, which evidence included the body of C.C. He claims, as he did in his

pretrial motion, that the first search warrant executed at the Chipman Street residence on that

day was invalid because the affidavit in support of the warrant did not bear the signature of

the affiant. He also claims that because evidence discovered during the execution of the first

warrant was included in the affidavit in support of the second warrant, the second warrant

executed that day was also invalid. The State contends that the defendant lacks standing to

challenge either warrant because he had abandoned the Chipman Street residence by the time

the first warrant was executed, that the first warrant was valid despite the signature

irregularity, that a previously-issued attachment for the defendant’s arrest authorized entry

into the Chipman Street residence independently from the challenged search warrants, that

exigent circumstances justified the entry into the residence, and that admission of the

challenged evidence at trial was authorized by both the inevitable discovery and independent

source doctrines. As is discussed more fully below, it is our view that the inevitable

discovery doctrine supported admission of the evidence obtained during the first search of

the Chipman Street residence despite the invalidity of the first search warrant issued on

January 9, 2007. We conclude that the second warrant was valid. Consequently, we affirm

the trial court’s denial of the defendant’s motion to suppress.

-12-

A. Facts

The trial court held a hearing on the defendant’s motion that spanned several

days over the course of some months.

Investigator Todd Childress testified that on Sunday, January 7, 2007, he

responded to a call that “[a] body had been located next to the railroad tracks behind 1701

Whittle Springs.” The body was removed from the scene by the medical examiner’s office,

and Investigator Childress returned to the police station to examine missing person’s reports.

When he read the reports related to the disappearance of the victims in this case, he noticed

immediately that the body matched the description of C.N. He recalled that because KPD

Sergeant Tim Snoderly indicated that he knew C.N. personally, Sergeant Snoderly was asked

to make the identification on the following morning. Investigator Childress explained that

no attempt was made to identify the body that day because it was a Sunday.

Investigator Childress testified that C.C.’s family and friends located her

4Runner in the early morning hours of Monday January 8, 2007, at the intersection of

Chipman and Glider Streets. He said that the vehicle was located approximately 400 yards

from where C.N.’s body had been discovered. At some point early that Monday morning,

Investigator Childress went off duty. Later that same morning, he returned to work and

accompanied Sergeant Snoderly to the medical examiner’s office to identify C.N.’s body.

The two then went to inform C.N.’s parents of his death.

Investigator Childress testified that he then met with the “search and recovery

team” and ordered the search and recovery officers to canvas the area where the 4Runner and

C.N.’s body had been found looking for C.C. or “anything that doesn’t belong there.”

Investigator Childress went off duty just after midnight on Tuesday, January 9, 2007. At

approximately 3 a.m. on Tuesday, January 9, 2007, he received a telephone call from Mr.

Crenshaw, who reported to him the discovery of the defendant’s fingerprint on a bank

envelope recovered from C.C.’s 4Runner. After the fingerprint was verified that morning,

Investigator Childress “started pulling any type of report, pictures, criminal histories,

anything . . . on Lemaricus Davidson.” One of the items he discovered was an attachment

issued for the defendant’s failure to appear for a court date. Investigator Childress noted that

the address listed on the defendant’s driver’s license, 2316 Chipman Street, was “150 yards

from” the location where C.N.’s body was discovered and “less than a block and a half from

where the car was located.” After he had gathered all the information, he spoke with

Investigator Steve Still to determine how they should proceed.

Investigator Childress said that a decision was made to apply for a warrant to

search the Chipman Street residence because “if she [was] deceased, you know, we want[ed]

-13-

to try to do this right.” He said that they hoped at that point to find C.C. alive. He recalled

that an officer had driven by the Chipman Street residence and determined the house to be

empty. Investigator Childress testified that he typed the affidavit in support of the warrant

and the warrant itself and that it took him “probably a couple of hours, at least.” He said that

he did not notice any irregularities when he printed the documents, stating, “[W]e were just

in a hurry to get it signed . . . so we could execute the search warrant.” He took the warrant

to the City-County Building where he met with an assistant district attorney, and they

presented the warrant to Knox County General Sessions Court Judge Tony W. Stansberry.

Investigator Childress said that Judge Stansberry “looked through it, you know.” He said that

Judge Stansberry placed him under oath and that he “swore to” the statements in the

affidavit. He said that he then “signed it, handed it back to [Judge Stansberry], and he

affixed his signature on it.” The warrant indicates that it was issued at 12:53 p.m. on

Tuesday, January 9, 2007.

After he obtained the search warrant, Investigator Childress met with officers

in a parking lot near the Chipman Street residence. There he distributed a photograph of the

defendant, and all the officers proceeded to the Chipman Street residence. Investigator

Childress insisted that he intended to serve the attachment on the defendant as well as

execute the search warrant, despite that he did not ask Judge Stansberry to issue an arrest

warrant based upon the attachment and that he did not take the attachment with him to the

residence.

Investigator Childress said that officers approached the residence and then

knocked and announced their presence. He recalled that “the door was not latched, or it’s

partially ajar.” Officers entered the residence at 1:39 p.m. and made a visual inspection of

each room as they moved throughout the residence to secure the premises. At 1:42 p.m.,

Sergeant Keith Debow called out that he had discovered C.C.’s body in the kitchen of the

residence inside a trash can.

At that point, Investigator Childress contacted the medical examiner’s office,

and representatives from that office arrived a short time later. Doctor Mileusnic-Polchan

declared C.C. deceased and indicated that the body should be transported to the medical

examiner’s office inside the trash can. While preparations were being made for the transport

of the body, officers did not conduct a “rigorous search” but continued to look around the

residence. C.C.’s body was removed from the scene “a little after three.” Officers then

began their search in earnest, immediately discovering C.C.’s iPod “laying on top of a

container.”

Shortly thereafter, Investigator Childress received a telephone call from

Assistant District Attorney General Kevin Allen, who told Investigator Childress that there

-14-

was a problem with the warrant and that they should stop searching and leave the residence.

Investigator Childress said that he ordered the officers to stop searching, and they all left the

residence. Some officers remained behind outside the Chipman Street residence while

Investigator Childress went to meet with General Allen.

Investigator Childress explained that the signature line of the affidavit for the

first search warrant had been “cut off” because he had “printed on 8 1/2 by 11 paper instead

of legal paper.” He said that he signed the warrant on the second page in the blank

designated “for the officer to whom warrant is delivered.” He said that he did not realize

when he presented the affidavit to Judge Stansberry that the signature line had been cut off.

He recalled that the first warrant to search the Chipman Street residence was the first search

warrant application he had ever prepared. He noted that neither the assistant district attorney

with whom he had met earlier nor Judge Stansberry had noticed the error either.

Investigator Childress said that he then prepared a second warrant with the

assistance of General Allen. Investigator Childress recalled that at the behest of General

Allen, he included information about the discovery of C.C.’s body in the application for the

second warrant. The second warrant reflects that it was issued at 7:25 p.m. Returns were

prepared for both warrants, left at the house, and filed. The body was listed on the first

return.

KPD Sergeant Keith Debow testified that he and other members of the

“S.W.A.T.” team were asked to assist Investigator Childress in executing the search warrant

at the Chipman Street residence. He described finding C.C.’s body shortly after entering the

residence:

I stepped into the kitchen with Lieutenant Fortner, is who was

with me in there. When I entered into the kitchen, I saw in the

far corner a large trash can that was oddly shaped. Looked like

it was over-stuffed. I looked at Lieutenant Fortner and pointed

at the trash can, and he immediately brought his weapon up to

bear, and I stepped forward, brought my weapon to bear, flipped

the trash can lid and saw the victim.

He said that he “thought that a suspect could possibly be hiding in the trash can,” explaining

that officers intended to detain “anyone inside the residence.” Although he could not recall

whether he had been provided with a physical description of the defendant, he said that such

a description “would have been of little relevance, as we were going to stop anybody inside

that house and detain them.” He emphasized that he was not asked to “search for evidence”

but to secure the residence so that other officers could “come in and search for the evidence.”

-15-

Mr. Crenshaw testified that he was called to process C.C.’s 4Runner during the

early morning hours of January 8, 2007. He photographed the vehicle, processed the exterior

for fingerprints and then had the vehicle towed to the city’s impound lot. He then proceeded

to another crime scene. When he returned to work his regular 11 p.m. to 7 a.m. shift that

evening, he went back to the 4Runner, having recalled seeing a bank envelope inside the car.

He used ninhydrin to raise any fingerprints from the bank envelope and then ran the resulting

prints through the statewide computer database. The program generated a list of possible

matches, and Mr. Crenshaw made the definitive match. He “identified the fingerprint as

being the right thumbprint of Lemaricus Davidson, a black male; date of birth, 6/13/81.” Mr.

Crensahw said that he made the initial identification at 2:42 a.m. on January 9, 2007, but that

the identification “really wasn’t official” until it could be verified by his co-worker, who was

scheduled to arrive at work at 7:00 a.m. Nevertheless, Mr. Crenshaw sent an email noting

the identification and telephoned Investigator Childress to tell him of the discovery.

Mr. Crenshaw said that he “cruised by” the Chipman Street residence, which

was only two or three miles from the police station, at approximately 6:30 a.m. on January

9, 2007, hoping to hear “somebody . . . screaming or something like that and then I could get

somebody over there to – to do something.” He heard nothing but saw “a purplish-blue light

inside the residence. . . . a TV possibly.”

B. Ruling of the Trial Court

The trial court concluded that the defendant had standing to challenge the

search warrant based upon his property and privacy interests in the Chipman Street residence.

The court observed that the record clearly established “that the affidavit was ‘subscribed’ to”

and ruled “that the technical absence of the signature and signature line do not inva[l]idate

the search warrant where the warrant is clear that the affidavit was sworn to before the

approving judge.” The court also ruled that the officers possessed the authority to enter the

Chipman Street residence to arrest the defendant “on the attachment” that had been issued

following the defendant’s failure to appear on a misdemeanor citation. The court concluded

that exigent circumstances also justified the entry into the Chipman Street residence because

C.C. “was reasonably considered to be in danger of harm until found.” Finally, the court

determined that evidence seized from the Chipman Street residence on January 9, 2007,

would not be admissible at trial under the inevitable discovery doctrine because information

obtained during the first search was used to procure the second warrant.7

7

The trial court’s ruling in this regard appeared to be conflating the separate but related doctrines

of independent source and inevitable discovery. See Murray v. United States, 487 U.S. 533, 539 (1988)

(“The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the

(continued...)

-16-

C. Application of Law

A trial court’s factual findings on a motion to suppress are conclusive on

appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217

(Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of

credibility, the weight and value of the evidence, and the resolution of conflicting evidence

are matters entrusted to the trial judge, and this court must uphold a trial court’s findings of

fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23;

see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is

reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

Both the federal and state constitutions offer protection from unreasonable

searches and seizures with the general rule being “that a warrantless search or seizure is

presumed unreasonable and any evidence discovered subject to suppression.” State v. Talley,

307 S.W.3d 723, 729 (Tenn. 2010) (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7).

1. Standing

As a threshold matter, the State claims that the defendant lacks standing to

challenge the search of the Chipman Street residence because he had abandoned the

residence by the time the search took place. The State argues that the defendant’s act of

fleeing the residence deprived him of any reasonable expectation of privacy in the residence.

The constitutional protections against unreasonable search and seizure “‘are

personal in nature, and they may be enforced by exclusion of evidence only at the instance

of one whose own protection was infringed by the search and seizure.’” State v. Cothran,

115 S.W.3d 513, 520 (Tenn. Crim. App. 2003) (quoting State v. Ross, 49 S.W.3d 833, 840

(Tenn. 2001)). “One who challenges the reasonableness of a search or seizure has the initial

burden of establishing a legitimate expectation of privacy in the place where property is

searched.” State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (citing Rawlings

v. Kentucky, 448 U.S. 98 (1980); State v. Roberge, 642 S.W.2d 716, 718 (Tenn. 1982)); see

Katz v. United States, 389 U.S. 347, 357 (1967); see also State v. Prier, 725 S.W.2d 667, 671

(Tenn. 1987) (stating that our state constitution affords no greater protection than the federal

constitution and adopting the Katz standard). Thus, we must determine “(1) whether the

7

(...continued)

independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through

an independent source, it should be admissible if it inevitably would have been discovered.”).

-17-

individual had an actual, subjective expectation of privacy and [if so] (2) whether society is

willing to view the individual’s subjective expectation of privacy as reasonable and

justifiable under the circumstances.” State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001) (citing

Smith v. Maryland, 442 U.S. 735, 740 (1979); Ross, 49 S.W.3d at 839). The second part of

this inquiry focuses on “whether, in the words of the Katz majority, the individual’s

expectation, viewed objectively, is ‘justifiable’ under the circumstances.” Smith, 442 U.S.

at 740 (quoting Katz, 389 U.S. at 357).

Because the Fourth Amendment protects people and privacy rather than places

and property, a property interest does not determine standing to challenge a search and does

not control the right of officials to search and seize. See Oliver v. United States, 466 U.S.

170, 183 (1984); Katz, 389 U.S. at 351, 353. As the Supreme Court has recognized, “[w]hat

a person knowingly exposes to the public, even in his own home or office, is not a subject

of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an

area accessible to the public, may be constitutionally protected.” Katz, 389 U.S. at 351.

Importantly, a “person can lose his reasonable expectation of privacy in his real property if

he abandons it. Thus, a person can, as he can with any other property, sufficiently manifest

an intent to abandon his house.” United States v. Harrison, 689 F.3d 301, 307 (3d Cir.

2012). “Abandonment for purposes of the Fourth Amendment differs from abandonment in

property law; here the analysis examines the individual’s reasonable expectation of privacy,

not his property interest in the item.” United States v. Fulani, 368 F.3d 351, 354 (3d Cir.

2004) (citing United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990)). Consequently,

“abandonment,” as understood in the constitutional context of unreasonable searches and

seizures, “is not meant in the strict property-right sense, but rests instead on whether the

person so relinquished his interest in the property that he no longer retained a reasonable

expectation of privacy in it at the time of the search.” United States v. Veatch, 674 F.2d

1217, 1220-21 (9th Cir.1981).

Our supreme court has noted that a reviewing court should consider whether

the individual has an ownership interest in the place searched, whether he has a possessory

interest in the place searched, whether he has the right to exclude others from the place, and

whether he undertook normal precautions to maintain the privacy of the place searched to

determine whether an individual had a legitimate expectation of privacy in the place

searched. See Oody, 23 S.W.2d at 560.

Here, the evidence established that the defendant and his girlfriend, Daphne

Sutton, signed an agreement to lease the Chipman Street residence from November 1, 2006,

to October 31, 2007. Ms. Sutton left the residence with her children before the offenses and

moved in with a friend. The couple did not pay the rent on time in either December or

January, but no effort had been made to evict them from the premises. Officers discovered

-18-

property that belonged to the defendant inside the residence during the search. Ms. Sutton

affirmed that she met the defendant at the Chipman Street residence on the evening of

January 7, 2007. The defendant then telephoned Ms. Sutton in either the late evening hours

of January 7 or early morning hours of January 8 and asked if he could stay with her,

claiming that Mr. Cobbins had locked him out of the residence. The defendant stayed with

Ms. Sutton until January 9, 2007, when news of the victims’ deaths broke. Ms. Sutton then

asked the defendant to leave and drove him to a location on Western Avenue. The defendant

stated that he left the Chipman Street residence before the victims were murdered by Mr.

Cobbins, Mr. Thomas, and Ms. Coleman, but he did not indicate that he had no intent to

return the residence.

Under the facts presented, we cannot conclude that the defendant had

abandoned the Chipman Street residence. Based on the proof presented, the defendant was

a leaseholder of the Chipman Street residence, and he kept his personal property there.

Although he was not present inside the residence at the time of the search, he had been away

from the residence for less than 48 hours when the search warrant was executed. His

property was still located in the residence at the time of the search. Importantly, nothing in

the record evinces the defendant’s intent to abandon the residence at the time the first warrant

was executed. These factors support the conclusion that the defendant maintained a

reasonable expectation of privacy in the Chipman Street residence at the time of the search

and thus had standing to challenge the search warrants in this case.

2. Validity of the Search Warrants

As an initial matter, we note that there is no question that both the first and

second warrants issued on January 9, 2007, were issued on probable cause, provided by an

affiant who had been sworn, by a neutral and detached magistrate. At bottom, the warrants

in this case raise no issue of constitutional dimensions, and the sole challenge is that the

warrants failed to comply with our statutory requirements for the issuance of search warrants.

a. First Warrant

The defendant claims that the first search warrant executed at the Chipman

Street residence was invalid because the affidavit in support of the warrant was unsigned.

“A search warrant can only be issued on probable cause, supported by affidavit,

naming or describing the person, and particularly describing the property, and the place to

be searched.” T.C.A. § 40-6-103; see State v. Keith, 978 S.W.2d 861, 869 (Tenn. 1998)

(“The law in this State is clear that a written and sworn affidavit is an essential prerequisite

to the issuance of a valid search warrant.”). Additionally, before issuing a search warrant,

-19-

the magistrate “shall examine on oath the complainant and any witness the complainant may

produce, and take their affidavits in writing, and cause them to be subscribed by the persons

making the affidavits.” T.C.A. § 40-6-104. Similarly, Tennessee Rule of Criminal

Procedure 41 provides that “[a] warrant shall issue only on an affidavit or affidavits that are

sworn before the magistrate and establish the grounds for issuing the warrant.” Tenn. R.

Crim. P. 41(c)(1). “Stated simply, ‘an affidavit is an indispensable prerequisite to the

issuance of a search warrant.’” State v. Lowe, 949 S.W.2d 300, 303 (Tenn. Crim. App. 1996)

(quoting State v. Johnson, 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993)). Our supreme

court has concluded that the statutory provisions relative to the issuance of search warrants

and the requirements of Rule 41 are mandatory and that any evidence seized pursuant to a

warrant that does not comply with these provisions cannot be admitted into evidence at trial.

See State v. Bobadilla, 181 S.W.3d 641, 645 (Tenn. 2005) (“We have interpreted these rules

strictly; the language is plain and the requirements are mandatory.”); Talley v. State, 345

S.W.2d 867, 869 (Tenn. 1961).

“An affidavit generally has been defined in case law as ‘a statement in writing,

signed, and made upon oath before an authorized magistrate.’” Keith, 978 S.W.2d at 869

(quoting Watt v. Carnes, 51 Tenn. 532, 534 (1871)); see Harvey v. State, 60 S.W.2d 420,

421(Tenn. 1933). A “document, without a signature or oath, does not commit its purported

author to any of the substantive statements it contains and, thus, has no evidentiary value.”

Kenyon v. Handal, 122 S.W.3d 743, 752 (Tenn. Ct. App. 2003). “An unsigned document

cannot qualify as an affidavit.” Id. n.6 (citing Crocker v. Larson, No.

01A01-9002-CV-00083 (Tenn. Ct. App., Nashville, Sept. 11, 1990) (“An unsigned

‘affidavit’ is not evidence and cannot be considered.”))).

In this case, the evidence established that Investigator Childress’ inadvertent

printing of the affidavit on other than legal-sized paper resulted in the signature line for the

affidavit being “cut off.” As a result, no line was provided on which Investigator Childress

could “subscribe” the affidavit. Instead, he placed his signature in the line indicating that the

warrant had been issued to him for execution. In our view, his signature in that blank does

not express itself as a subscription of the affiant and, hence, does not qualify as a

subscription. This is particularly true given that Rule 41 also requires that the warrant

contain the “name of the officer to whom the warrant was delivered for execution.” Tenn.

R. Crim. P. 41(c)(2)(D); see also State v. Stepherson, 15 S.W.3d 898, 902 (Tenn. Crim. App.

1999) (holding that although the result seemed “harsh” the “express language of the rule

provides that the ‘failure to endorse thereon . . . the name of the officer to whom issued’

renders the search and seizure ‘illegal’”). Nothing would suggest that Investigator Childress’

signature may be construed to fulfill both of these compulsory provisions. Because the

affidavit in support of the first search warrant was unsigned, it does not qualify as an

affidavit as that term has been defined by our case law. In consequence, the warrant does not

-20-

comply with the mandatory requirements of the Code or Rule 41. As a result, the evidence

seized pursuant to that warrant, C.C.’s body and the objects used to conceal her body, is

subject to the exclusionary rule unless an exception justifies admission of the evidence at

trial.8

b. Second Warrant

The defendant claims that the second warrant executed at the Chipman Street

residence was invalid because, for probable cause, it relied on information discovered during

the execution of the first, invalid warrant. The trial court ruled that the second warrant

executed on January 9, 2007, was invalid because the affidavit in support of the warrant

included references to the evidence discovered pursuant to the first, invalid warrant. The

State concedes that information obtained during the first search should not have been

included in the affidavit for the second warrant but urges this court to redact the offending

information from the second affidavit and conclude that, even without the offending

information, the affidavit contained sufficient information to establish probable cause for the

second search warrant.

“Pursuant to the independent source doctrine, an unlawful entry does not

mandate the suppression of evidence located inside a residence if the evidence is

subsequently discovered following the execution of a valid warrant based upon facts

independent and separate from information discovered as a result of the unlawful entry.”

State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005), abrogated on other grounds by Kentucky

v. King, 131 S. Ct. 1849, 1863 (2011). “The underlying policy of the independent source

doctrine is that ‘while the government should not profit from its illegal activity, neither

should it be placed in a worse position than it would otherwise have occupied.’” Carter, 160

S.W.3d at 532 (quoting Murray v. United States, 487 U.S. 533, 542 (1988)). “In order for

the subsequent warrant and search to be found genuinely independent of the prior

unconstitutional entry, . . . information obtained during the illegal entry may not have been

presented to the issuing Magistrate.” State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992)

8

In 2011, the legislature passed the Exclusionary Rule Reform Act, which provides a statutory good

faith exception for the failure to comply with technical statutory and procedural rules regarding the issuance

of warrants. See T.C.A. § 40-6-108 (“Notwithstanding any law to the contrary, any evidence that is seized

as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of

Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the

constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part

or any violation of Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation

was a result of a good faith mistake or technical violation made by a law enforcement officer, court official,

or the issuing magistrate as defined in subsection (c).”). Because the search in this case occurred in 2007,

that provision is inapplicable.

-21-

(citing Murray, 487 U.S. at 542).

The proof established that the decision to obtain the second warrant was not

“prompted by what they had seen during the initial entry,” see Murray, 487 U.S. at 542, but

the officers did present information obtained during the execution of the first, invalid warrant

to the magistrate who issued the second warrant. Both before and after the ruling in Murray,

however, the Sixth Circuit Court of Appeals routinely excised tainted information from

warrants that contained information that was procured during an illegal search or seizure.

See United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) (“In sum, authority from this

and other circuits, as well as the principles underlying the Murray rule, support an

interpretation of the independent source rule that incorporates consideration of the

sufficiency of the untainted affidavit to see if probable cause exists without the tainted

information.”); Shamaeizadeh v. Cunigan, 338 F.3d 535, 552 (6th Cir. 2003) (“[W]e exclude

from the affidavit only evidence gathered from the main floor of the house in violation of

Shamaeizadeh’s constitutional rights.”); United States v. Smith, 730 F.2d 1052, 1056 (6th

Cir. 1984) (“[W]hen a search warrant is based partially on tainted evidence and partially on

evidence arising from independent sources, ‘if the lawfully obtained information amounts

to probable cause and would have justified issuance of the warrant apart from the tainted

information, the evidence seized pursuant to the warrant is admitted.’” quoting United States

v. Williams, 633 F.2d 742, 745 (8th Cir. 1980)). Similarly, following our supreme court’s

ruling in Clark, this court continued to allow redaction of “any and all references to”

information obtained during an illegal search followed by an evaluation of the “redacted

affidavit in order to determine whether or not probable cause remains nonetheless.” State

v. Randall Keith Smith and Nicholas Ryan Flood, No. W2009-02678-CCA-R3-CD, slip op.

at 11 (citing State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn. Crim. App. 1997)); see

also State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993).

Utilizing this well-established practice, we conclude that if all references to

information gained during the first entry into the Chipman Street residence are removed, the

remaining facts contained in Investigator Childress’ affidavit in support of the second search

warrant established probable cause to search the residence. To hold otherwise would, in our

view, “violate the core rationale underpinning the independent source doctrine – that the

police not be placed in a worse position than they would have been in if no misconduct had

occurred.” Randall Keith Smith and Nicholas Ryan Flood, slip op. at 11; see also Jenkins,

396 F.3d at 758-59 (“Invalidating a search warrant because the magistrate was affected in

some minor way by tainted information, when the warrant would have been granted even

without the tainted information, would put the police in a worse position than they would

have been in had they not presented the tainted information to the magistrate.”). This is

particularly true where, as here, the violation that led to the invalidation of the first warrant

was technical in nature and did not touch upon the defendant’s constitutional rights. Thus,

-22-

the second warrant was valid.

Because the second search warrant was valid, suppression of the evidence

discovered during the second January 9, 2007 search was not required. We discuss more

fully in our analysis of the inevitable discovery doctrine the implications of the validly issued

second warrant on the discovery of C.C.’s body and other evidence during the first January

9, 2007 search.

3. Service of the Attachment

The State asserts that an attachment issued by the Knox County General

Sessions Court following the defendant’s failure to appear on a misdemeanor citation

justified the initial January 9, 2007 entry into the Chipman Street residence. The defendant

contends that the attachment does not qualify as an arrest warrant. Additionally, he argues

that even if the attachment qualified as an arrest warrant, it would not have justified the entry

into the Chipman Street residence under the circumstances of this case.

After he identified the defendant’s fingerprint on the bank envelope recovered

from C.C.’s 4Runner, Mr. Crenshaw conducted a records check that showed that an

attachment had been issued by the Knox County General Sessions Court for the defendant’s

failure to appear on a misdemeanor citation. Investigator Childress later confirmed that

members of the Knox County Sheriff’s Office had the attachment “in hand.” Investigator

Childress testified that his two-fold purpose in entering the Chipman Street residence on

January 9, 2007, was to execute the search warrant and arrest the defendant pursuant to the

attachment. He conceded, however, that he did not obtain a copy of the attachment before

going to the residence.

Tennessee Code Annotated section 40-7-118 provides that if a person to whom

a citation in lieu of an arrest has been issued “fails to appear in court on the date and time

specified or fails to appear for booking and processing prior to the person’s court date, the

court shall issue a bench warrant for the person’s arrest.” T.C.A. § 40-7-118(f). The

attachment, which was exhibited to the hearing, indicates that the “reason” for its issuance

was the defendant’s failure to appear for booking. In our view, the attachment at issue was

the functional equivalent of an arrest warrant, given that it “commanded in the name of the

State” the “arrest” of the defendant. That being said, service of the attachment in this case

did not justify the entry into the residence because the State failed to establish that the police

had “reason to believe” that the defendant was inside the residence when they knocked on

the door. See Payton v. New York, 445 U.S. 573, 603 (1980) (“For Fourth Amendment

purposes, an arrest warrant founded on probable cause implicitly carries with it the limited

authority to enter a dwelling in which the suspect lives when there is reason to believe the

-23-

suspect is within.”). To the contrary, the evidence established that Officer Charles Lee drove

by the residence and indicated that there appeared to be no activity inside the house. Neither

Investigator Childress nor Officer Debow, both of whom were present when the search

warrant was executed, testified that the residence bore any indicia of activity. When officers

knocked on the door and announced their presence, they heard neither a reply nor any sounds

indicating activity within. Because the officers lacked reason to believe that the defendant

was inside the Chipman Street residence at the time the first warrant was executed on January

9, 2007, service of the attachment did not justify the entry into the residence.

4. Exigent Circumstances Exception to the Warrant Requirement

Because we have determined that the first search warrant executed at the

Chipman Street residence on January 9, 2007, was invalid, we must now determine whether

an exception to the warrant requirement justified the warrantless entry into the residence that

resulted in the discovery of C.C.’s body.

The State contends that exigent circumstances justified the entry into the

Chipman Street residence, and the defendant asserts that the delay between the discovery of

the defendant’s fingerprint on the bank envelope found in C.C.’s 4Runner and the entry into

the residence militates against a finding of exigency.

The “most basic constitutional rule” with regard to search and seizure “is that

‘searches conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few

specifically established and well-delineated exceptions.’” Coolidge v. New Hampshire, 403

U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. at 357); see also State v.

Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). “The exceptions are ‘jealously and carefully

drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies

of the situation made that course imperative.’” Coolidge, 403 U.S. at 455 (quoting Jones v.

United States, 357 U.S. 493, 499 (1958), and McDonald v. United States, 335 U.S. 451, 456

(1948)). “We are not dealing with formalities. The presence of a search warrant serves a

high function.” McDonald, 335 U.S. at 455. Thus, we necessarily indulge the presumption

that the search or seizure in this case was unreasonable, and the burden is on the State to

demonstrate that one of the exceptions to the warrant requirement applied at the time of the

search or seizure. See, e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (“Our cases

have held that a warrantless search of the person is reasonable only if it falls within a

recognized exception.”).

The generally recognized exceptions to the Fourth Amendment warrant

requirement include “search incident to arrest, plain view, stop and frisk, hot pursuit, search

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under exigent circumstances, and . . . . consent to search.” State v. Cox, 171 S.W.3d 174, 179

(Tenn. 2005) (citations omitted). The State claims that the first entry into the Chipman Street

residence was impelled by exigent circumstances.

“Given the importance of the warrant requirement in safeguarding against

unreasonable searches and seizures, a circumstance will be sufficiently exigent only where

the State has shown that the search is imperative.” State v. Meeks, 262 S.W.3d 710, 723

(Tenn. 2008) (citing Coolidge, 403 U.S. at 454-55; State v. Hayes, 188 S.W.3d 505, 514

(Tenn. 2006); State v. Yeargan, 958 S.W.2d 626, 641 (Tenn. 1997) (Reid, J., concurring)).

Our supreme court has provided the following non-exclusive list of “frequently-arising

situations that have been found to be sufficiently exigent” to justify the warrantless search

of a residence: “(1) hot-pursuit, (2) to thwart escape, (3) to prevent the imminent destruction

of evidence, (4) in response to an immediate risk of serious harm to the police officers or

others, and (5) to render emergency aid to an injured person or to protect a person from

imminent injury.” Meeks, 262 S.W.3d at 723 (citing Brigham City, Utah v. Stuart, 547 U.S.

398, 403 (2006); Minnesota v. Olson, 495 U.S. 91, 100 (1990); United States v. Huffman,

461 F.3d 777, 782 (6th Cir. 2006); State v. Adams, 238 S.W.3d 313, 321 (Tenn. Crim. App.

2005)). Said differently, “[e]xigent circumstances are those in which the urgent need for

immediate action becomes too compelling to impose upon governmental actors the attendant

delay that accompanies obtaining a warrant.” Meeks, 262 S.W.3d at 723.

“To determine whether a law enforcement officer faced an emergency that

justified acting without a warrant, this Court looks to the totality of circumstances.”

McNeely, 133 S. Ct. at 1559 (citing Brigham City, Utah, 547 U.S. at 406; Illinois v.

McArthur, 531 U.S. 326, 331 (2001); Richards v. Wisconsin, 520 U.S. 385, 391-96 (1997);

Cupp v. Murphy, 412 U.S. 291, 296 (1973)). The Supreme Court explained:

We apply this “finely tuned approach” to Fourth Amendment

reasonableness in this context because the police action at issue

lacks “the traditional justification that . . . a warrant . . .

provides.” Atwater v. Lago Vista, 532 U.S. 318, 347 n.16

(2001). Absent that established justification, “the fact-specific

nature of the reasonableness inquiry,” Ohio v. Robinette, 519

U.S. 33, 39 (1996), demands that we evaluate each case of

alleged exigency based “on its own facts and circumstances.”

Go-Bart Importing Co. v. United States, 282 U.S. 344, 357

(1931).

McNeely, 133 S. Ct. at 1559. This analysis focuses on the information known to the officer

at the time of the search and any reasonable inferences that may be drawn therefrom. Meeks,

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262 S.W.3d at 723-24.

The evidence in this case established that after C.N.’s body was discovered on

January 7, 2007, the police waited until the following day to send someone to identify the

body at the medical examiner’s office. When C.C.’s 4Runner was discovered at

approximately 1:30 a.m. on Monday, January 8, 2007, by her friends and family rather than

the police, only 400 yards away from the location of C.N.’s body, the police towed the

vehicle to the impound lot and waited more than 18 hours to conduct a thorough search of

the vehicle. By 2:52 a.m. on January 9, 2007, however, the police possessed information that

indicated that the defendant had been inside C.C.’s 4Runner and that the defendant lived at

2316 Chipman Street, which was only “150 yards from” the location where C.N.’s body was

discovered and “less than a block and a half from” the location where C.C.’s 4Runner was

found abandoned. Witness testimony established that the officers waited to obtain

verification of the fingerprint identification from another KPD employee until the following

morning rather than seeking an immediate verification. Even after they obtained that

verification, however, the police spent several hours preparing a search warrant and did not

execute the warrant until nearly 45 minutes after it was issued. Although we have stated

“that ‘delay alone . . . does not bar reliance on the emergency aid exception,’” State v.

William T. Davis, No. M2004-03060-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App.,

Nashville, Sept. 15, 2005) (quoting State v. Sharp, 973 P.2d 1171, 1176 (Ariz. 1999); Foutz

v. City of West Valley City, 345 F. Supp. 2d 1272, 1277 (D. Utah 2004)), the delay in this

case was a matter of hours rather than a matter of minutes. Indeed, the investigative pace in

this case can fairly be described as glacial under the circumstances. In our view, these

circumstances simply do not indicate that any sort of exigency permeated the police

investigation.

5. Inevitable Discovery Exception to the Exclusionary Rule

Finally, the State avers that the doctrine of inevitable discovery justifies

admission of the evidence collected pursuant to the first, invalid search warrant. On this

point, we agree with the State.

“Generally, evidence obtained as a direct or indirect result of unconstitutional

police conduct will be excluded as the ‘fruit’ of the primary constitutional breach.” State v.

Hill, 333 S.W.3d 106, 122-23 (Tenn. Crim. App. 2010) (citing Silverthorne Lumber Co. v.

United States, 251 U.S. 385, 392 (1920); Wong Sun v. United States, 371 U.S. 471, 487-88

(1963)). “Under the doctrine of ‘inevitable discovery,’ however, illegally obtained evidence

will be deemed admissible at trial if the State can establish that the evidence would have

inevitably been discovered by lawful means.” Hill, 333 S.W.3d at 123 (citing State v. Patton,

898 S.W.2d 732, 735 (Tenn. Crim. App. 1994)).

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Before the inevitable discovery doctrine will permit the

admission of illegally obtained evidence, the State must

demonstrate “first, that certain proper and predictable

investigatory procedures would have been utilized in the case at

bar, and second, that those procedures would have inevitably

resulted in the discovery of the evidence in question.”

Hill, 333 S.W.3d at 123 (quoting State v. Coury, 657 S.W.2d 777, 780 (Tenn. Crim. App.

1983)). “Proof of inevitable discovery may involve ‘no speculative elements but focuses on

demonstrated historical facts capable of ready verification or impeachment.’” Hill, 333

S.W.3d at 123 (quoting Nix v. Williams, 467 U.S. 431, 444 n.5 (1984), and citing State v.

Cothran, 115 S.W.3d 513, 525 (Tenn. Crim. App. 2003)).

The Supreme Court adopted and applied the inevitable discovery doctrine in

Nix. In that case, Nix abducted 10-year-old Pamela Powers from a Des Moines, Iowa YMCA

on Christmas Eve in 1968 and later turned himself in to authorities in Davenport, Iowa. Nix,

467 U.S. at 434-35. While transporting Nix via car from Davenport to Des Moines, officers

initiated a conversation with Nix that elicited from him incriminating statements and ended

with his guiding the police to the victim’s body. Id. at 435-36. The trial court deemed Nix’s

statements inadmissible but allowed the prosecution to offer evidence concerning the

location and condition of the body under the theory that had the search for the victim

continued, the body would have been discovered within a short time and in the same

condition as actually found. Id. at 437-40.

In support of the application of the inevitable discovery doctrine, the Nix

prosecution offered specific evidence that the volunteer search team assembled to search for

the victim had ended its search only two and one-half miles from the location of the body

after the defendant identified the location and that, based on the earlier progress of the

search, the victim’s body would have been discovered in an additional three to five hours of

continued searching. Id. at 449.

“On this record,” the Supreme Court concluded, “it is clear that

the search parties were approaching the actual location of the

body, and we are satisfied, along with three courts earlier, that

the volunteer search teams would have resumed the search had

Williams not earlier led the police to the body and the body

inevitably would have been found.”

Hill, 333 S.W.3d at 123-24 (quoting Nix, 467 U.S. at 449-50). To warrant application of the

inevitable discovery doctrine, the State must demonstrate by a preponderance of the evidence

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that “the information ultimately or inevitably would have been discovered by lawful means.”

Nix, 467 U.S. at 444. The Sixth Circuit Court of Appeals has noted that “[t]he inevitable

discovery doctrine is conceptually more problematic than the independent source doctrine

because it involves a degree of deducing what would have happened rather than simply

evaluating what actually happened.” United States v. Leake, 95 F.3d 409, 412 (6th Cir.

1996).

The evidence presented at the hearing on the motion to suppress and at trial

established that the police had focused upon not only on the defendant but also the Chipman

Street residence at the time of the search. C.N.’s body had been discovered only “150 yards

from” the Chipman Street residence, and C.C.’s 4Runner had been discovered “less than a

block and a half from” the residence. After C.N.’s body was identified, members of the

“search and recovery team” were sent into the area around the Chipman Street residence,

which was located a short distance from the police station, to search for C.C. Additionally,

her friends and family, who had already discovered the 4Runner, were actively searching the

area around the Chipman Street residence. The officers had legal possession of the 4Runner

and legally obtained the defendant’s fingerprint from a bank envelope found in the 4Runner.

A legally-conducted records check showed that the defendant listed the Chipman Street

residence as his residence on his driver’s license and other legal documents. Mr. Crenshaw

and KPD Officer Charles Lee had driven by the Chipman Street residence at separate times

on January 9, 2007, lessening the chance that the evidence might be removed from the

residence before police officers could gain legal entry. The defendant had absented himself

from the residence. As a practical matter, from the point that officers linked the defendant

to the 4Runner and linked the Chipman Street residence to the defendant, the residence was

under the effective control of and surveillance by the KPD. To be sure, from the time the

officers first entered the Chipman Street residence to execute the first search warrant until

the time they entered the residence to execute the second search warrant and at all times

thereafter, the residence was under the actual and exclusive control of the KPD. As such,

there was no chance that C.C.’s body would have been moved before the officers had an

opportunity to legally discover and seize it.

Aside from the ongoing police investigation, we note that James Mitchell, the

self-described handyman and rent collector for the defendant’s landlord, Sammie Peroulas,

testified that, as of January 9, 2007, he had already gone to the Chipman Street residence

twice to collect January’s rent. Each time, the defendant had told Mr. Mitchell that he did

not have the money to pay the rent and had asked Mr. Mitchell to come back at a later date.

When he returned a third time, Mr. Mitchell saw police tape around the residence and learned

of the crimes. Moreover, the defendant’s lease agreement contained a provision permitting

the landlord or the landlord’s agents “the right at all reasonable times during the term of [the

lease] . . . to enter the House for the purpose of inspecting the premises.” That provision

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would have provided another avenue of entry into the house that could have been exploited

by the police. Additionally, Ms. Sutton, who was also listed as a lessee, later cooperated

extensively with the police and could have granted consent to search the Chipman Street

residence because she was a party to the lease agreement.

This evidence demonstrates that the police investigation, had it continued in

the absence of the illegality, would have resulted in the officers lawfully entering the

Chipman Street residence and discovering C.C.’s body. They had ample probable cause to

support the issuance of a warrant to search the Chipman Street residence, and they did obtain

a warrant that was issued on probable cause and that complied with constitutional

requirements. The illegality here is based entirely on a state law violation that did nothing

to dissipate the probable cause that existed before the police entered the Chipman Street

residence. The police then obtained a second warrant that we have deemed independent from

the state law violation that renders the first search warrant invalid. They executed that search

warrant at the residence on the same day as the initial, illegal entry. Additionally, officers

of the federal government and the TBI executed a validly executed search warrant on January

15, 2007. Had they not already seized her body, the police most certainly would have done

so upon executing either the second search warrant or the federal search warrant. See

Murray, 487 U.S. at 542 (“It seems to us, however, that reseizure of tangible evidence

already seized is no more impossible than rediscovery of intangible evidence already

discovered.”). Clearly, the preponderance of the evidence established that lawful means of

investigation were being pursued before the first, illegal entry that would have led to the

discovery of C.C.’s body. See Nix, 467 U.S. at 444 (“If the prosecution can establish by a

preponderance of the evidence that the information ultimately or inevitably would have been

discovered by lawful means . . . then the deterrence rationale has so little basis that the

evidence should be received.”); see also id. n.5 (“We are unwilling to impose added burdens

on the already difficult task of proving guilt in criminal cases by enlarging the barrier to

placing evidence of unquestioned truth before juries.”). For this court to conclude otherwise

would require us to “reject logic, experience, and common sense,” id. at 444, and “would do

nothing whatever to promote the integrity of the trial process, but would inflict a wholly

unacceptable burden on the administration of criminal justice,” id. at 447.

The Supreme Court has repeatedly cautioned against “‘[i]ndiscriminate

application’” of the exclusionary rule and has applied the rule only “‘where its deterrence

benefits outweigh its substantial social costs.’” Hudson v. Michigan, 547 U.S. 586, 591

(2006) (citations omitted); see also Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65

(1998) (“Because the exclusionary rule precludes consideration of reliable, probative

evidence, it imposes significant costs: it undeniably detracts from the truthfinding process

and allows many who would otherwise be incarcerated to escape the consequences of their

actions. Although we have held these costs to be worth bearing in certain circumstances, our

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cases have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law

enforcement objectives presents a high obstacle for those urging application of the rule.”

(citations omitted)). Here, where the record amply demonstrates that C.C.’s body would

inevitably have been discovered by lawful means, we can see no reason to exclude this

“reliable, probative evidence.” See Scott, 524 U.S. at 364. In consequence, the trial court

did not err by denying the defendant’s motion to suppress the evidence obtained during the

first January 9, 2007 search of the Chipman Street residence.

III. Motion to Suppress Pretrial Statements

The defendant asserts that the trial court erred by denying his motion to

suppress the recorded statement he made to the police following his January 11, 2007 arrest.

In the motion, the defendant claimed that the statements were the product of an

unconstitutional custodial interrogation and that the statements were involuntarily given.

Specifically, the defendant contends that the overwhelming police presence during his arrest

and the harsh manner in which he was treated following his arrest rendered his statement

involuntary. He claims that his arrest was illegal because it was predicated on the initial

illegal entry into the Chipman Street residence and by the faulty attachment. The State

contends that the trial court properly denied the motion.

A. Facts

The defendant was arrested at an abandoned house on Reynolds Street in

Knoxville on January 11, 2007. Sergeant Debow, who participated in the arrest, testified at

the suppression hearing that he and other members of the “S.W.A.T.” team were asked to

participate in the arrest along with other KPD officers, members of the Knox County

Sheriff’s Office, agents of the Bureau of Alcohol Tobacco and Firearms, and representatives

of the United States Marshal Service. The officers “surrounded the house” and made their

presence known. At that point, the defendant stepped to the window, “somewhat complying”

with the officers’ directive to show himself, and a decision was made “to have him come out

of the house.” When the defendant indicated that he could not open the window, Sergeant

Debow “broke the window with the barrel of [his] weapon” and cleared the broken glass

from the window. When Sergeant Debow asked the defendant where the defendant’s gun

was, the defendant “pointed down either towards his waistline or on the floor.” Sergeant

Debow then ordered the defendant to remain still, and two other officers pulled the defendant

out of the house through the window. The defendant was placed on the ground, and another

officer performed “a cursory pat down checking him for weapons.” He recalled that

approximately 30 officers from the various agencies were present during the arrest.

KPD Investigator Greg McKnight testified that when he arrived at the

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Reynolds Street location, the defendant was seated in a patrol car. Investigator McKnight

did not observe any injuries to the defendant. He provided the defendant with Miranda

warnings “off the top of [his] head” and then engaged in “general conversation” with the

defendant. He maintained that he did not ask the defendant any questions about the crimes.

The defendant, who appeared to be “kind of relaxed, not for sure what was going on,” asked

whether the police had located Mr. Cobbins and how they had managed to locate the

defendant. No one ever hit, yelled at, abused, or was otherwise “mean to” the defendant

from the time of his arrest until he was deposited into an interview room at the police station.

KPD Investigator Ryan Flores interviewed the defendant following the

defendant’s arrest because Investigator Childress had gone to Kentucky to arrest Mr.

Cobbins, Ms. Coleman, and Mr. Thomas. Investigator Flores observed that the defendant’s

shirt was torn but did not notice any injuries to the defendant’s person. He read the Miranda

warnings to the defendant and provided the defendant with a written rights waiver, which the

defendant signed. After executing the rights waiver, the defendant agreed to answer

Investigator Flores’ questions. Investigator Flores recalled that the defendant ate “some

Zatarain rice in a bag and some Beef Jerky sticks” and drank “some water” that Investigator

Flores provided him.

The trial court denied the defendant’s motion, concluding that his arrest was

legal, that the recitation of Miranda warnings was sufficient to convey the defendant’s rights

to remain silent and have a lawyer present during questioning, and that the defendant’s

statement was voluntarily given.

B. Application of Law

As indicated, the trial court’s factual findings on a motion to suppress are

conclusive on appeal unless the evidence preponderates against them. See, e.g., Binette, 33

S.W.3d at 217. We review the application of the law to the facts de novo with no

presumption of correctness. Keith, 978 S.W.2d at 864.

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

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “the Fifth

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

the Fourteenth Amendment). This means that, to pass federal constitutional muster and be

admissible at trial, a confession must be free and voluntary and not “‘extracted by any sort

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

of any improper influence’” or police overreaching. Bram v. United States, 168 U.S. 532,

542-43 (1897) (citation omitted). The rule is equally applicable to confessions given during

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custodial interrogations following appropriate provision of Miranda9 warnings, see State v.

Kelly, 603 S.W.2d 726, 728 (Tenn. 1980), and to those conducted before the defendant has

been placed in custody, see Arizona v. Fulminante, 499 U.S. 279, 286-88 (1991). To

determine voluntariness, the reviewing court must examine the totality of the circumstances

surrounding the confession to determine “whether the behavior of the State’s law

enforcement officials was such as to overbear [the defendant’s] will to resist and bring about

confessions not freely self-determined – a question to be answered with complete disregard

of whether or not [the defendant] in fact spoke the truth.” Rogers v. Richmond, 365 U.S.

534, 544 (1961).

Article I, section 9 of the Tennessee Constitution provides that “in all criminal

prosecutions, the accused . . . shall not be compelled to give evidence against himself.”

Tenn. Const. art. I, § 9. It has been said that “[t]he test of voluntariness for confessions under

Article I, § 9 of the Tennessee Constitution is broader and more protective of individual

rights than the test of voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d

450, 455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994)); see

also State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005). “The critical question is ‘whether

the behavior of the state’s law enforcement officials was such as to overbear [the

defendant’s] will to resist and bring about confessions not freely self-determined.’” Smith,

933 S.W.2d at 455-56 (quoting Kelly, 603 S.W.2d at 728 (internal citation and quotation

marks omitted)).10 Moreover, because of the extra protection afforded by the state

constitution, “[f]or the relinquishment of rights to be effective, the defendant must have

personal awareness of both the nature of the right and the consequences of abandoning his

rights.” Thacker, 164 S.W.3d at 249 (citing Stephenson, 878 S.W.2d at 544-45).

Accordingly, “the totality of the circumstances must reveal ‘an uncoerced choice and the

required level of comprehension before a court can properly conclude that Miranda rights

have been waived.’” State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (quoting

Stephenson, 878 S.W.2d at 545; Moran v. Burbine, 475 U.S. 412, 421 (1986)).

An accused “may knowingly and intelligently waive the right against

self-incrimination only after being apprised of” the constitutional rights to remain silent and

to counsel during interrogation. Thacker, 164 S.W.3d at 248. As with the voluntariness of

a statement, the trial court “may conclude that a defendant voluntarily waived his rights if,

under the totality of the circumstances, the court determines that the waiver was uncoerced

9

Miranda v. Arizona, 384 U.S. 436 (1966).

10

This test is exactly the same as that promulgated in Rogers v. Richmond, 365 U.S. 534, 544 (1961),

so it is not entirely clear that it actually effectuates the stated goal of providing more protection to the

criminally accused.

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and that the defendant understood the consequences of waiver.” Id. (citing Stephenson, 878

S.W.2d at 545).

The defendant first asserts that his statement was involuntary because it was

the product of his illegal arrest on an invalid attachment. As indicated above, the attachment

that was exhibited to the hearing on the defendant’s motion to suppress the evidence seized

during the search of the Chipman Street residence was the functional equivalent of an arrest

warrant in that it specifically authorized the arrest of the defendant. Additionally, the State

exhibited to the hearing on the motion to suppress the statement a criminal complaint from

the United States District Court for the Eastern District of Tennessee. Most importantly,

however, the record clearly establishes that the police officers who effectuated the

defendant’s arrest had the probable cause to do so.

Probable cause in the context of a warrantless arrest exists if, at

the time of the arrest, the facts and circumstances within the

knowledge of the officers, and of which they had reasonably

trustworthy information, are sufficient to warrant a prudent man

in believing that the [defendant] had committed or was

committing an offense.

State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim. App. 2000) (citation and internal quotation

marks omitted). By the time of the defendant’s arrest, C.N.’s body had been discovered,

shot and badly burned, only yards from the defendant’s residence, the police identified the

defendant’s fingerprint on a bank envelope found inside C.C.’s 4Runner, and C.C.’s body

had been discovered stuffed inside a trash can inside the defendant’s residence. Under these

circumstances, the defendant’s January 11, 2007 arrest was valid regardless of the validity

of the attachment.

The defendant next contends that the trial court should have suppressed his

statement because the Miranda warnings provided by Investigator Flores were incomplete.

In Miranda, the United States Supreme Court ruled that unless an accused is advised of his

constitutional rights to remain silent and to counsel before a custodial interrogation, any

statement elicited during the interrogation is not admissible in trial. Dickerson v. United

States, 530 U.S. 428, 435 (2000) (“[T]he admissibility in evidence of any statement given

during custodial interrogation of a suspect [depends] on whether the police provided the

suspect with four warnings. These warnings (which have come to be known colloquially as

‘Miranda rights’) are: a suspect ‘has the right to remain silent, that anything he says can be

used against him in a court of law, that he has the right to the presence of an attorney, and

that if he cannot afford an attorney one will be appointed for him prior to any questioning if

he so desires.’” (quoting Miranda, 384 U.S. at 479)). An accused may waive his rights so

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long as he is adequately apprised of them and of the consequence of relinquishing his rights.

See, e.g., Stephenson, 878 S.W.2d at 544.

The rights waiver signed by the defendant and exhibited to the hearing

informed the defendant that he had the “right to remain silent,” that “anything you say can

be used against you in court,” that he had the “right to consult with a lawyer and to have a

lawyer present with you while you are being questioned,” that if he desired but could not

afford a lawyer “a lawyer will be appointed to represent you free of any cost to you,” that

even if he decided “to answer questions now without a lawyer present, you will still have the

right to stop answering at any time,” and that he had the “right to stop answering questions

at any time until you talk to a lawyer.” In our view, the warnings as contained in the rights

waiver and read to the defendant by Investigator Flores were sufficient to convey to the

defendant the constitutional protections afforded him. See Duckworth v. Eagan, 492 U.S.

195, 203 (1989) (“Reviewing courts therefore need not examine Miranda warnings as if

construing a will or defining the terms of an easement. The inquiry is simply whether the

warnings reasonably ‘convey to [a suspect] his rights as required by Miranda.’” (quoting

California v. Prysock, 453 U.S. 355, 361 (1981) (alteration in Duckworth)). Moreover, the

defendant indicated clearly his understanding of his constitutional rights, saying, “I know my

rights you ain’t gotta read me my rights[.] I know my rights.” Noting his familiarity with

the law, the defendant also said, “I’ve been in . . . prison for six years. The law book and

all that s[***]. I done read all that s[***].” On this record, we conclude that the defendant

knowingly and intelligently waived his constitutional rights and agreed to speak to

Investigator Flores.

Finally, the defendant contends that his statement was not voluntarily given

because his will was overborne by the show of force by the police during his arrest. At the

time of his arrest, the defendant had armed himself and holed up in an abandoned house. He

was wanted on federal firearms and carjacking offenses and was a suspect in the brutal

slayings of C.N. and C.C. We cannot say that the manner of the defendant’s arrest was not

commensurate with the severity of the situation. Nor can we say that the record indicates that

the defendant’s will was in any way overborne by the police. He was not abused, injured,

threatened, or plied with false promises.

Because the defendant provided a fully voluntary statement following his legal

arrest and a valid waiver of his constitutional rights, the trial court did not err by denying the

defendant’s motion to suppress the statement he provided to the police following his arrest.

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IV. Motion to Suppress Searches of the Defendant’s Person on January 19, 2007, and

March 13, 2008

The defendant avers that the trial court erred by refusing to suppress the results

of testing performed on hair and DNA samples obtained from his person pursuant to a federal

warrant issued on January 19, 2007, and a state warrant issued on March 13, 2008. He

claims that the warrants were invalid because for probable cause they relied on information

obtained during the allegedly illegal search of his residence. The State argues that because

the evidence seized during the January 9, 2007 searches was not subject to suppression,

inclusion of that information in the affidavits in support of the search warrants issued on

January 19, 2007, and March 13, 2008, did not invalidate the warrants. In the alternative, the

State argues that even if the challenged information is redacted from the affidavits, the

affidavits still established probable cause for the issuance of the warrants.

Both of the warrants in question contain information that was discovered

during the autopsy of C.C.’s body, which was discovered by officers during the execution

of the first, invalid warrant to search the defendant’s residence. We have already concluded

that evidence of the discovery of C.C.’s body was not subject to suppression because the

inevitable discovery exception to the exclusionary rule applies. Once the evidence was

within the possession of the State, the State was free to examine or perform testing on the

evidence. In our view, information related to that examination and testing was so attenuated

from the taint of the initial illegal entry of the Chipman Street residence that its inclusion in

the warrants for the search of the defendant’s person, particularly the warrant issued more

than a year later, did not invalidate either warrant. See Murray, 487 U.S. at 536-37 (“[T]he

exclusionary rule also prohibits the introduction of derivative evidence, both tangible and

testimonial, that is the product of the primary evidence, or that is otherwise acquired as an

indirect result of the unlawful search, up to the point at which the connection with the

unlawful search becomes ‘so attenuated as to dissipate the taint.’” (citation omitted)).

Moreover, we agree with the State that, even assuming that the warrants

contained still-tainted information, redacting that information does not strip them of probable

cause. See, e.g., Jenkins, 396 F.3d at 760. Without the challenged information, the warrants

were still predicated on probable cause to search the defendant’s person to obtain forensic

evidence related to the rape and murder of C.N. Consequently, the trial court did not err by

denying the defendant’s motion to suppress the searches of his person on January 19, 2007,

and March 13, 2008.

V. Admission of Photographs

The defendant contends that the trial court erred by admitting photographs of

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the victims’ bodies taken before and during their respective autopsies, claiming that the

photographs were unduly “graphic, shocking, horrifying, and inflammatory.” The State

contends that the trial court did not abuse its discretion by admitting the challenged

photographs.

The defendant filed a pretrial motion to exclude photographs of the victims

taken after their deaths, and the trial court held two hearings on the motion. The court

considered hundreds of photographs offered by the State at the first hearing and excluded

many as redundant or lacking probative value. At another hearing, Doctor Mileusnic-

Polchan testified regarding the need for the photographs to help explain her testimony to the

jury. She maintained that although she could describe the various injuries to the victims, it

would be impossible for the jury to truly comprehend them without the aid of the

photographs, characterizing her testimony alone as “not good enough.” During this hearing,

the trial court again excluded a number of photographs, concluding that they were either

redundant or not a necessary complement to the medical examiner’s testimony. Following

the trial court’s measured and thorough culling, only 22 of the challenged photographs

remained — 12 of C.N. and 10 of C.C.

The photographs of C.N. depict the condition and position of his body when

it was discovered, the ligatures on his hands and feet, the wrapping of his head, the extreme

charring that resulted from the burning of the body, the three gunshot wounds that caused his

death, and the trauma to his anus that established that C.N. had been sexually assaulted. The

challenged photographs of C.C. show several different views of her body after it had been

removed from the trash can and placed on the autopsy table but while she remained bound.

Other photographs depict the evidence of asphyxiation and suffocation, which were listed

as the causes of her death. Two photographs display C.C.’s perineal area and were used by

the medical examiner to highlight the substantial blunt force trauma to this part of her body.

Doctor Mileusnic-Polchan utilized each of the challenged photographs during her testimony.

“Tennessee courts have consistently followed a policy of liberality in the

admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d 895,

902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The general

rule . . . is that photographs of a murder victim’s body are admissible if they are ‘relevant to

the issues on trial, notwithstanding their gruesome and horrifying character.’” Carter, 114

S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-51). Relevant evidence is evidence

“having 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. Even relevant photographs may be excluded, however, if

their probative value is substantially outweighed by the danger of unfair prejudice. Tenn. R.

Evid. 403; Banks, 564 S.W.2d at 950-51. The term “unfair prejudice” has been defined as

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“[a]n undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” See Banks, 564 S.W.2d at 951. “The admission of

photographs lies within the sound discretion of the trial court and will not be overturned on

appeal absent a showing that the trial court abused that discretion.” State v. Odom, 336

S.W.3d 541, 565 (Tenn. 2011) (citing Banks, 564 S.W.2d at 949).

To be sure, the photographs depicting C.N. and C.C. after their deaths were

disturbing, but we are mindful that the injuries inflicted upon the victims were also

disturbing. We conclude that the photographs, though graphic, were not so shocking or

gruesome that the probative value of the photographs was substantially outweighed by the

danger of unfair prejudice. Instead, the photographs accurately illustrated for the jury the

nature and circumstances of the crimes committed against C.N. and C.C. Prior to trial, the

trial court carefully culled the numerous photographs offered by the State and, using a

measured approach, admitted the challenged photographs only to depict specific injuries

described by Doctor Mileusnic-Polchan. The defendant points to the fact that a member of

the district attorney general’s office fainted during the presentation of the photographs as

evidence that they were unduly inflammatory; however, the effect of the photographs on an

unnamed member of the district attorney general’s staff is not relevant to our inquiry. The

trial court did not abuse its discretion by admitting the challenged photographs.

In a related issue, the defendant contends that the trial court erred by refusing

to grant his motion for a mistrial following the fainting incident. The decision to grant or

deny a mistrial is entrusted to the sound discretion of the trial court, and this court will

disturb the trial court’s ruling in this regard only when there has been an abuse of the trial

court’s discretion. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009). “Normally, a

mistrial should be declared only if there is a manifest necessity for such action.” State v.

Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v. Millbrooks, 819 S.W.2d 441, 443

(Tenn. Crim. App. 1991)). “‘In other words, a mistrial is an appropriate remedy when a trial

cannot continue, or a miscarriage of justice would result if it did.’” Saylor, 117 S.W.3d at

250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)). “The purpose

for declaring a mistrial is to correct damage done to the judicial process when some event has

occurred which precludes an impartial verdict.” State v. Williams, 929 S.W.2d 385, 388

(Tenn. Crim. App. 1996). The burden of establishing the necessity for mistrial lies with the

party seeking it. Id.

The defendant has failed to establish that the trial court abused its discretion

by refusing to grant a mistrial. The fact that a member of the district attorney general’s staff

fainted during the presentation of the photographs did not, in our view, “preclude[] an

impartial verdict” in this case. Nothing suggests that the State could have predicted that the

staff member would be overcome by the photographs or that the incident was orchestrated

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by the State for the purpose of inflaming the jury. Moreover, the trial court issued a curative

instruction, warning the jury that they should not allow the incident to impact their verdict.

Under these circumstances, the trial court did not abuse its discretion by refusing to grant the

defendant’s motion for a mistrial. See State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990)

(holding that a mistrial was not required when the trial court issued a curative instruction

following a witness’s outburst); see also generally State v. Myron Lorenzo Johnson, No.

M2008-02198-CCA-R3-CD (Tenn. Crim. App., Nashville, February 12, 2010) (holding that

a mistrial was not required when the trial court issued a curative instruction after the victim’s

mother fainted during the testimony of the medical examiner); State v. Terrence McCray, No.

W2005-00479-CCA-R3-CD (Tenn. Crim. App., Jackson, Sept. 5, 2006) (holding that a

mistrial was not required when the trial court gave a curative instruction following an

emotional display by the victim’s aunt, who had fallen on the floor); State v. James

Cleveland Breer, No. W2001-00390-CCA-R3-CD (Tenn. Crim. App., Jackson, Feb. 7, 2002)

(holding that no mistrial was required when trial court issued a curative instruction following

an emotional outburst by the victim’s grandmother).

VI. Fingerprint Identification

The defendant asserts that the trial court abused its discretion by denying his

pretrial motion to exclude the testimony of Mr. Schade and Mr. Crenshaw concerning the

process used to match the defendant’s fingerprints on several items of evidence linking him

to the offenses in this case. He claims that “the methodology known as ACE-V, utilized for

the comparison and identification of fingerprints in this case[, is] inherently unreliable and

lacking scientific validity.”

At the pretrial hearing on the defendant’s motion, Mr. Schade testified that he

received a degree in criminal justice from San Diego State University, a degree in political

science, and a master’s degree in public administration. In addition, he had become a

certified fingerprint examiner. Before obtaining his certification, he participated in 80 hours

of training with the Federal Bureau of Investigation. To obtain his certification via the

International Association for Identification, Mr. Schade sat for a six-hour, three-part

examination to test his knowledge of “fingerprint pattern identification.” He said that, “so

far,” no two people had been identified as having identical fingerprints.

He explained that the analysis portion of fingerprint identification required the

examination of “three levels of detail.” “Level one detail . . . is just going to be . . . the flow

of the ridges as they go through your fingers, palms, whatever it is.” Level two detail is “the

bifurcations and closures, dots, islands, just things like that.” Level three detail is

“ridgeology and poroscopy which is just going to be the width of the ridges, the flow of the

ridges, how they go around the other ridges, and then the pores.” The next step of

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identification is the “comparison stage . . . where you’re trying to get a determination of

whether the prints could be matched up or not, which brings you to the evaluation.” The last

stage is verification, which requires that a second person verify the identification. At the

time of the offenses in this case, the KPD employed two certified fingerprint examiners, Mr.

Schade and Mr. Crenshaw, who made and verified all fingerprint identifications.

Mr. Schade said that the KPD had utilized this method of fingerprint

examination for at least 10 years prior to the hearing. He said that he would lose his

certification if he misidentified a fingerprint, adding, “[T]hen you’re going to have to

probably look for another job or find something else that you’re going to be able to do,

because you’re not going to be able to look at fingerprints anymore.” He said that he and Mr.

Crenshaw made an average of 300 fingerprint identifications each year and that a single

misidentification would compromise all the other identifications.

Mr. Schade said that fingerprints were utilized in fields other than criminal

justice. Referring to the National Academy of Sciences report offered by the defendant as

evidence of the flawed science of fingerprints, Mr. Schade said that it was his understanding

that the purpose of the report was to receive funding for the improvement of the forensic

sciences. Mr. Schade emphasized that “the last thing” he wanted to do when making a

fingerprint identification was “put the wrong person in jail” and “make the wrong ID and

lose [his] job.”

During cross-examination, Mr. Schade testified that he had received all of his

training in fingerprint identification from law enforcement sources “because typically the

people that are doing fingerprint comparisons are going to be people in law enforcement.”

He said that, in order to maintain his certification, he had to pass a re-certification test every

five years. He acknowledged that the KPD did not require that he or Mr. Crenshaw undergo

proficiency testing. He said that although he had not published any articles on fingerprint

identification, he regularly taught a course on fingerprint identification at the National

Forensic Academy. Mr. Schade could not identify any specific scientific study that arrived

at the conclusion that all fingerprints are unique, but he said “that through 150 years of

fingerprint comparisons nobody’s ever found somebody to have the exact same fingerprints.”

He added, “[J]ust to give you an idea about fingerprints, just points wise, there’s about 75

to 115 just points, not counting the pores or not counting the ridge flow pattern on a finger.

So for all of those points to line up in the same spot would be just incredible.” He said that

he did not know the error rate for fingerprint identification.

He said that the KPD did not require documentation of the analysis phase of

identification in every case, and he added that requiring such documentation would be

overwhelming given the number of fingerprints that are subjected to this initial step. Mr.

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Schade said that the department did not require that he examine prints at a certain level of

detail before making an identification. He said that he and Mr. Crenshaw did not typically

confer before making an identification because they worked alternate shifts.

The defendant exhibited to the hearing a partial copy of a 2009 report by the

National Research Counsel that identified weaknesses in the ACE-V method of fingerprint

identification, describing the method as “too broad to ensure repeatability and transparency.”

The publication also noted that “ACE-V does not guard against bias” and that it “does not

guarantee that two analysts following it will obtain the same results.” The publication

recommended further research into the ACE-V method and fingerprint identification in

general.

The trial court, via a written order, deemed the evidence admissible. The court

found both Mr. Schade and Mr. Crenshaw qualified to offer expert testimony on fingerprint

analysis. The court also concluded that the ACE-V method was “sufficiently reliable,”

specifically finding that the “evidence in the record strongly supports the validity and

reliability of the expert evidence on this issue.” Noting that the defendant’s challenge was

a broad challenge “to the general area of expertise and methodology,” the court observed that

the defendant did not challenge the specific conclusions of the two fingerprint experts in this

case. Assessing the reliability of the ACE-V method, the court noted “that the testing of the

procedure may fall short of the type required by certain sciences” but ruled that any

deficiency in the testing did not preclude admission of the testimony. The court also

concluded that the lack of peer-reviewed research and a known error rate did not bar

admission of the testimony. The court relied heavily on the facts “that fingerprint analysis

has been used by law enforcement for approximately 100 years and that the rate of error is

extremely low.” Finally, the court determined that, despite an article exhibited to the hearing

by the defense, fingerprint evidence has been widely accepted in the law enforcement

community and by numerous courts of law.

At trial, Mr. Crenshaw testified that “an identifiable fingerprint is a lot different

from a fingerprint. Most fingerprints are not identifiable.” He said that a number of factors

could affect the clarity of a fingerprint. He testified that he was a certified fingerprint

examiner and that all of his fingerprint identification training had been law enforcement

related. Like Mr. Schade, he was subject to re-certification every five years. Regarding the

uniqueness of individual fingerprints, Mr. Crenshaw said that the database to which he had

access contained “over two million fingerprints” and that no two were alike. Additionally,

the FBI database contained 250 million prints, none of which were identical. His testimony

regarding the ACE-V method mirrored that of Mr. Schade. Mr. Crenshaw emphasized that

it was not his desire to make an incorrect identification, saying,

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[I]f I’m not 100 percent sure a fingerprint is a match, I will not

make it. There’s been plenty of times where I thought one was

a match, I’ve been pressured to make that match, but I will not

make that match. One erroneous match – erroneous

identification, I lose my certification, probably lose my job, and

I risk sending an innocent person to jail. I will not do that.

After he discovered the bank envelope in C.C.’s 4Runner, he sprayed it with

ninhydrin, which “reacts with the sweat, amino acids” left behind in fingerprints. He then

obtained an identifiable print from the envelope, and he processed the print through a

database. He then made the match by examining the print on the envelope and the known

print identified in the digital search. He identified the print as having been made by the

defendant.

He also conducted fingerprint testing of the trash bags that contained C.C.’s

body. He said that “one of the best methods to obtain fingerprints from plastic” was to

“expose them to cyanoacrylate vapors, which is Super Glue vapors.” He photographed the

print exposed by that process and then compared that print with the known prints. A palm

print on the most exterior trash bag belonged to the defendant. He said that the placement

of the palm print on the bag was consistent with “someone lifting the bag, ‘cause pressure

would have to be applied on the opposite side of the surface.” He did not find any

identifiable prints on the two most interior garbage bags or the white bag that had been

around C.C.’s head.

Mr. Crenshaw identified the defendant’s fingerprint on “a shoe store . . . pay

stub with” C.C.’s name “hand written on the back.” He also identified the defendant’s

fingerprint on some photographs that were collected from the Chipman Street residence.

In this appeal, the defendant again challenges the admissibility of the expert

testimony on fingerprint evidence offered by Mr. Schade and Mr. Crenshaw, claiming

deficiencies in the methodology behind the fingerprint identifications made in this case.

The admissibility of expert testimony is governed by Rules 702 and 703 of the

Tennessee Rules of Evidence. See generally McDaniel v. CSX Transp., Inc., 955 S.W.2d 257

(Tenn. 1997). Rule 702 addresses the need for expert testimony and the qualifications of the

expert, see Tenn. R. Evid. 702 (“If scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise.”), and Rule 703 focuses on the reliability of

expert opinion testimony, see Tenn. R. Evid. R. 703 (“The facts or data in the particular case

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upon which an expert bases an opinion or inference may be those perceived by or made

known to the expert at or before the hearing. If of a type reasonably relied upon by experts

in the particular field in forming opinions or inferences upon the subject, the facts or data

need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not

be disclosed to the jury by the proponent of the opinion or inference unless the court

determines that their probative value in assisting the jury to evaluate the expert's opinion

substantially outweighs their prejudicial effect. The court shall disallow testimony in the

form of an opinion or inference if the underlying facts or data indicate lack of

trustworthiness.”). The admissibility of expert testimony is a matter entrusted to the sound

discretion of the trial court, and no reversal occurs on appeal absent clear abuse of that

discretion. See State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2010); State v. Copeland, 226

S.W.3d 287, 301 (Tenn. 2007). “A trial court abuses its discretion when it applies incorrect

legal standards, reaches an illogical conclusion, bases its decision on a clearly erroneous

assessment of the evidence, or employs reasoning that causes an injustice to the complaining

party.” Scott, 275 S.W.3d at 404 (citing Konvalinka v. Chattanooga-Hamilton County Hosp.

Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

As indicated, the defendant attacked the methodology behind the expert

testimony concerning fingerprint analysis in this case. Our supreme court, in McDaniel,

identified a list of factors “[t]o assess methodological and foundational reliability”:

(1) whether scientific evidence has been tested and the

methodology with which it has been tested; (2) whether the

evidence has been subjected to peer review or publication; (3)

whether a potential rate of error is known; (4) whether the

evidence is generally accepted in the scientific community; and

(5) whether the expert’s research in the field has been conducted

independent of litigation.

Scott, 275 S.W.3d at 403-04 (citing McDaniel, 955 S.W.2d at 265). The court cautioned,

however, that “[r]igid application of these factors is unnecessary” and that “[n]ot all expert

testimony will ‘fit’ with these factors.” Scott, 275 S.W.3d at 404 (citing Copeland, 226

S.W.3d at 302; Brown v. Crown Equip. Corp., 181 S.W.3d 268, 277 (Tenn. 2005)).

In support of his position, the defendant again cites the 2009 publication by the

National Research Council that questioned the validity and reliability of the ACE-V method

of fingerprint analysis. See Committee on Identifying the Needs of the Forensic Science

Community, National Research Council, Strengthening Forensic Science in the United

States: A Path Forward 143 (2009). Challenges made to the validity of the ACE-V method,

including those made in the wake of the National Research Council publication, have already

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been rejected by a number of the federal courts of appeals and the high courts of other states.

See, e.g., United States v. Herrera, 704 F.3d 480, 486 (7th Cir. 2013) (“Matching evidence

of the kinds that we’ve just described, including fingerprint evidence, is less rigorous than

the kind of scientific matching involved in DNA evidence; eyewitness evidence is not

scientific at all. But no one thinks that only scientific evidence may be used to convict or

acquit a defendant.”); United States v. Watkins, 450 Fed. Appx. 511, 516 (6th Cir. 2011)

(observing that “even a less-than-perfect fingerprint-identification method can still be

scientifically valid”); United States v. Scott, 403 Fed. Appx. 392, 398 (11th Cir. 2010) (“The

ACE-V method has been in use for over 20 years, and is generally accepted within the

community of fingerprint experts.”); United States v. Pena, 586 F.3d 105, 110-11 (1st Cir.

2009) (stating that the district court did not abuse its discretion by permitting expert

testimony that was based on the ACE-V method); United States v. Baines, 573 F.3d 979, 983,

989-92 (10th Cir. 2009) (same); United States v. Mitchell, 365 F.3d 215, 221-22, 246 (3d Cir.

2004) (same); United States v. Crisp, 324 F.3d 261, 266-70 (4th Cir. 2003) (upholding

admission of fingerprint evidence and noting that “[f]ingerprint identification has been

admissible as reliable evidence in criminal trials in this country since at least 1911”); United

States v. Havvard, 260 F.3d 597, 600-02 (7th Cir. 2001) (testimony concerning latent

fingerprint examination was properly admitted); Commonwealth v. Patterson, 840 N.E.2d

12, 32-33 (Mass. 2005) (finding ACE-V method reliable for single latent fingerprint

impressions).

We agree with the conclusions expressed by other courts presented with this

issue. That the ACE-V methodology lacks an element of peer review or a known error rate

does not preclude the testimony of Messrs. Schade and Crenshaw in this case. Additionally,

as noted by the United States Court of Appeals for the Tenth Circuit, “[W]hile we

acknowledge that acceptance by a community of unbiased experts would carry greater

weight, we believe that acceptance by other experts in the field should also be considered.

And when we consider that factor with respect to fingerprint analysis, what we observe is

overwhelming acceptance.” Baines, 573 F.3d at 991. We agree with the trial court that

fingerprint identification can be classified as a type of hybrid forensic evidence because it

requires scientific, technical, and experiential knowledge. Both Mr. Crenshaw and Mr.

Schade testified that despite their significant training, it was their experience that best served

them when trying to make a fingerprint identification. Fingerprint evidence has been used

in criminal trials in this country for well over 100 years, and although it has not proven

entirely infallible, it has certainly not proved so unreliable that expert testimony about

fingerprint identification should be excluded from evidence.

We conclude that the trial court did not err by admitting the testimony of

Messrs. Schade and Crenshaw. Importantly, the trial court allowed the defendant to cross-

examine the witnesses regarding the ACE-V method and its application in this case. The

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defendant is not entitled to relief on this issue.

VII. Ballistics Testing

The defendant next contends that the trial court erred by denying his motion

in limine to exclude testimony concerning the ballistics testing conducted in this case on

grounds that the report prepared by the ballistics examiner established that the testing led to

inconclusive results. The defendant, again citing the 2009 National Research Council

publication, also challenged the admission of ballistics testing testimony on grounds that such

testing was not scientifically reliable.

At the pretrial hearing, KPD firearms examiner Patricia Resig testified that she

had bachelor’s degrees in nursing and anthropology in addition to the two-year’s training she

had in firearm and toolmark examination. She explained that she made comparisons between

bullets, between cartridge cases, and between bullets or cartridge cases and firearms. That

analysis was primarily based upon visual examination of the physical characteristics of the

items to be compared. She said that she began with an examination of the “class

characteristics” or “design features” of a particular firearm, bullet, or cartridge case. These

included “caliber, number of lands and grooves, the direction of twists, the measurements of

those lands and grooves, and as far as cartridge cases or the gun marking of cartridge case,

. . . firing pin impressions, breech face marks, location and shape of extractor marks and

ejector marks.” The “class characteristics” could lead to the elimination of a particular

firearm but would not result in a positive identification. “To make an identification,” she

said, “I base my decision on the individual characteristics, and these are unintentional

imperfections, irregularities of tool surfaces that actually make the gun, the barrel[,] or the

breech face.” She said that these characteristics are “unique to that gun or that barrel.” She

said that a positive identification required “sufficient agreement of those individual

characteristics.”

Ms. Resig testified that the field of firearms examination had itself been

subjected to scientific review and testing. That testing verified the reliability of firearms

examination. She said that many labs participated in proficiency testing of their examiners

and that the testing established error rates of between .9 percent and .1 percent. She

explained that although some literature suggested an error rate as high as 12 percent, “that

included inconclusives which are neither correct nor incorrect.” Ms. Resig documented her

results using “notes, drawings, sketches, charts, and a very large part on photography.” In

this case, she consulted with the “TBI firearm and toolmark unit,” which confirmed the

identifications she made.

In this case, Ms. Resig examined one .22-caliber High Standard model Sentinel

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R-103 double-action revolver, one .22 long-rifle caliber Clerke double-action revolver, six

.22 long-rifle caliber Remington cartridges, and a .3- M1 caliber Universal semi-automatic

carbine with a detachable magazine. She test fired two bullets through the Sentinel revolver

and compared them with the bullets recovered from C.N.’s body during the autopsy. She

said that the bullets “displayed similar class characteristics . . . but there was a lack of

agreement or disagreement of the individual characteristics.” Those same class

characteristics would be shared by a number of other revolvers. As a result, her final finding

was inconclusive “[a]s far as comparing the bullets from the victim to the Sentinel revolver.”

She said that although the bullets fired from the Clerke revolver and the test bullets shared

the same class characteristics, there was enough disagreement between the individual

characteristics for her to eliminate the Clerke revolver as the murder weapon. She was able

to determine two of the bullets recovered from C.N.’s body were fired from the same

unknown weapon, but she could not determine whether the third had been fired from the

same weapon, in part because that bullet was damaged.

During cross-examination, Ms. Resig testified that the Association of Firearm

and Toolmark Examiners offered a certification program but that she was not certified by that

organization. Additionally, she said that the American Society of Crime Laboratory

Directors required proficiency testing for firearms examiners, but the KPD was not

accredited by that organization. Instead, the KPD was accredited by “CLIA . . . which is a

commission on accreditation for law enforcement agencies.”

Ms. Resig explained that “there was a study from 1978 through 1991 where an

error rate of 12 percent was reported for firearms and 26 percent error rate reported for

toolmarks, but . . . included within that percentage were inconclusive results, which are

neither . . . correct or not correct.” “[T]aking out those inconclusive results and if you strictly

look at it as a function of the incorrect responses, then the error rate is much less.”

At the conclusion of the hearing, the defendant argued that Ms. Resig’s

conclusion that the Sentinel revolver and the bullets recovered from C.N.’s body shared the

same class characteristics was “not probative of anything in this case,” that it “proves

nothing, and it is the quintessential basis for a potential for juror confusion under 403.”

At the conclusion of the hearing, the trial court observed that “what we have

here is . . . bullets that are fired from a weapon that have these . . . characteristics that place

it within the realm of being . . .in that class of weapons that could have fired these bullets.”

The court added, “[W]hen you balance all of that out, and . . . it’s subject to full cross-

examination, and it’s subject to the limitations for what it is, . . . that it has tendency to make

the existence of a fact of some consequence.” The court concluded that Ms. Resig’s

testimony was relevant and that it would not confuse the jury, observing, “[I]t may not be the

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weapon. But it’s a factor that they can weigh and consider in their overall consideration

here.”

Regarding the defendant’s challenge to Ms. Resig’s testimony pursuant to

Evidence Rules 702 and 703, the court concluded that “Ms. Resig credibly testified to the

various McDaniel factors.” The court found that the record “clearly establishes the more

than satisfactory qualifications of Patricia Resig as an expert in the field of ballistics” and

“that the evidence strongly supports the admission” of her testimony. The court observed

that the defendant’s challenge utilizing the conclusions in the National Research Council

report “more appropriately will go to the weight of the evidence rather than its admissibility.”

The defendant reiterates his challenges to Ms. Resig’s testimony on appeal, and

we again agree with the conclusions of the trial court. Ms. Resig testified that her testing

established that the test bullets fired from the Sentinel shared the same class characteristics

as two of the bullets recovered from C.N.’s body, which meant that the bullets could have

been fired from that weapon, but that she was unable to determine conclusively whether the

bullets recovered from C.N.’s body had been fired by the Sentinel. She was able to

determine that the bullets “probably” were not fired from the Clerke revolver. We find this

testimony relevant despite its relatively low probative value. Additionally, this evidence, as

presented by Ms. Resig, did not possess the potential to confuse the jury. She carefully

explained that she could not positively identify the Sentinel as the murder weapon. She was

also subjected to rigorous cross-examination on this point.

Utilizing the standards discussed in our analysis of the defendant’s challenge

to the testimony of Messrs. Crenshaw and Schade, we conclude that the trial court did not

abuse its discretion by admitting Ms. Resig’s testimony. Ms. Resig’s testimony established

that she was qualified to offer expert testimony in ballistics examination and testing and that

the methods used to test the bullets and firearms in this case were those widely accepted

within the scientific community. She testified, and the trial court observed, that ballistics

testing has been subjected to scientific review, which review has revealed a low rate of error.

That the National Research Council suggested different or improved standards did not render

the methods used here so unreliable as to prohibit Ms. Resig’s testimony. The defendant is

not entitled to relief on this issue.

VIII. Buttons Depicting Victims

The defendant asserts that the trial court erred by permitting members of the

victims’ families to wear buttons depicting the victims before their deaths. Prior to trial, the

defendant moved the trial court to prohibit the introduction of victim-impact evidence during

the guilt-phase of his trial, specifically asking the trial court to prevent spectators from

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wearing “buttons, shirts, or other displays of the victims’ images in the courtroom.”

After hearing the arguments of the parties and examining one of the buttons

that the victims’ families intended to wear, the court observed,

I think that . . . these are two victims in this matter who

obviously can’t be here, and their families . . . are here on their

behalf. And, you know, they’ve lost these people, and I think it

is appropriate for them to be here. There’s no mystery who they

are. There’s no mystery about . . . who’s here on behalf of the

defendants in any given case, and . . . while I do not think it’s

appropriate for there to be some show of support in the sense of

bringing in a delegation of people who obviously have a point

of view about a case one way or the other, I do think it’s

appropriate for family members to be able to represent lost

family members by being able to tastefully represent them by

wearing . . . some memorabilia of them.

The court ruled that the immediate family of both victims, “the mother, the father, the

siblings, . . . grandparents, “ would be allowed to “wear a tasteful memorabilia of their lost

family members.” The court emphasized that its ruling did “not extend to their friends and

family. It does not extend to the extended family. I think that there’s a limit, but I think that

it’s appropriate for the immediate family to be able to express their remembrance of their lost

loved ones.” The court also ruled that no one would be permitted “to wear anything on the

witness stand.” The court continued,

The fact remains and it’s undisputed that they’ve lost a child,

and to deny them the opportunity to be able to express that loss

by wearing a tasteful display of a remembrance of that child

makes no sense to me, and I don’t think for one second that it’s

going to make any difference to this jury in their decision-

making process about whether or not the state can prove beyond

a reasonable doubt whether a particular individual is or is not

responsible for any crime that they’re charged with in this case.

The court noted that it “anticipated . . . a tasteful button with a photograph of . . . the

individual as a young adult, that they would be able to wear on their lapel or . . . in that

vicinity.” The court also added that once a button had been decided upon, individuals should

“wear the same button . . . . So we don’t have to worry day-to-day what we’re talking about.”

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In a later-issued written order, the trial court clarified its oral ruling:

This Court recognizes that in order to provide the defendant

with a fair trial, the courtroom atmosphere must be free of

coercion or intimidation. This Court will closely monitor and

supervise the courtroom throughout the trial in this matter,

including spectator conduct, to ensure that no such coercive or

intimidating atmosphere exists. Had the victims in this case

survived, they would be permitted in the courtroom for trial. In

their absence, this Court finds that the immediate family

members of the victims may wear the small buttons provided to

the Court at the April 17, 2009[] hearing at trial. No other

images of the victims will be displayed by spectators in the

courtroom. Immediate family members will include the victim’s

parents, siblings, and grandparents only. In addition, no witness

may wear the button on the witness stand. This Court notes that

in reaching this determination it is aware that jurors are aware

of their surroundings and the fact that some spectators are biased

toward the defendant while others are biased toward the state.

Small buttons such as those provided here, and limited to the

small number of persons who will be permitted to wear them,

will be a sign of nothing more than the normal grief occasioned

by the loss of a family member and will in no way brand the

defendant with a mark of guilt in the eyes of the jurors. In

addition, this court finds that these limited buttons will not

create an atmosphere of coercion or intimidation at the trial

court.

The members of the victims’ immediate families abided by the terms of the

court’s ruling, removing their buttons when called to testify and wearing the same button

already approved by the trial court. Following Ms. Resig’s testimony, however, the trial

court observed, out of the presence of the jury, that “there are some additional buttons on

. . . some people in the audience. The ruling of the Court is that the buttons that can be worn,

can be worn by immediate family members. So let’s remember that.” No other mentions of

the buttons were made during the trial.

On appeal, the defendant argues that the trial court erred by permitting any

spectator to wear the button.

The Supreme Court “has recognized that certain courtroom practices are so

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inherently prejudicial that they deprive the defendant of a fair trial.” Carey v. Musladin, 549

U.S. 70, 72 (2006) (citing Estelle v. Williams, 425 U.S. 501, 503-06 (1976); Holbrook v.

Flynn, 475 U.S. 560, 568 (1986)). In Musladin, “a state court held that buttons displaying

the victim’s image worn by the victim’s family during [Musladin’s] trial did not deny

respondent his right to a fair trial,” and the Supreme Court concluded that the state court

holding was not “contrary to or an unreasonable application of clearly established federal

law.” Musladin, 549 U.S. at 72. “During Musladin’s trial, several members of [the victim’s]

family sat in the front row of the spectators’ gallery. On at least some of the trial’s 14 days,

some members of [the victim’s] family wore buttons with a photo of [the victim] on them.”

Id.

In Williams and Flynn, the Court “dealt with government-sponsored practices”

that were “so inherently prejudicial that they must be justified by an ‘essential state’ policy

or interest.” Id. at 75. The Musladin Court determined that the practice at issue in Williams

— compelling “the defendant to stand trial in prison clothes” — “‘further[ed] no essential

state policy.’” Id. (citing Williams, 425 U.S. at 505). In Flynn, the Court determined that the

seating of four state troopers “immediately behind the defendant” did not have “to be

justified by an ‘essential state interest.’” Musladin, 549 U.S. at 75 (citing Flynn, 475 U.S.

at 568-69). The Court concluded that neither ruling addressed itself to the determination of

“the effect on a defendant’s fair-trial rights of . . . spectator conduct,” noting that it had

“never addressed a claim that such private-actor courtroom conduct was so inherently

prejudicial that it deprived a defendant of a fair trial.” Musladin, 549 U.S. at 76. The Court

observed that “although the Court articulated the test for inherent prejudice that applies to

state conduct in Williams and Flynn,” it had “never applied that test to spectators’ conduct.”

Id. The court noted that “part of the legal test of Williams and Flynn--asking whether the

practices furthered an essential state interest--suggests that those cases apply only to

state-sponsored practices.” Id.

Noting its own “lack of guidance” on this issue, the Court observed that “lower

courts have diverged widely in their treatment of defendants’ spectator-conduct claims,” with

some applying the Williams and Flynn standard to spectators’ conduct, some declining to

extend that standard beyond state-sponsored conduct, and some ruling “on spectator-conduct

claims without relying on, discussing, or distinguishing Williams or Flynn.” Musladin, 549

at 76-77 (citations omitted).

In his concurring opinion, Justice Kennedy concluded that the rule established

by the Court’s earlier precedents “require[d] a court, on either direct or collateral review, to

order a new trial when a defendant shows his conviction has been obtained in a trial tainted

by an atmosphere of coercion or intimidation similar to that documented in the foregoing

cases” regardless of “whether the pressures were from partisans, or . . . from persons reacting

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to the drama of the moment who created an environment so raucous that calm deliberation

by the judge or jury was likely compromised in a serious way.” Id. at 80-81 (Kennedy, J.,

concurring). Justice Souter, also concurring in the opinion, reasoned that the “inherently

prejudicial” standard of Williams and Flynn clearly “reache[d] the behavior of spectators”

and concluded that “one could not seriously deny that allowing spectators at a criminal trial

to wear visible buttons with the victim’s photo can raise a risk of improper considerations,”

observing that “the buttons are at once an appeal for sympathy for the victim (and perhaps

for those who wear the buttons) and a call for some response from those who see them.” Id.

at 83 (Souter, J., concurring). He added, “On the jurors’ part, that expected response could

well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of

survivors with a conviction would be the paradigm of improper consideration.” Id. Justice

Souter stopped short, however, of concluding “that any level of risk from wearing buttons

in a courtroom is unacceptable.” Id.

In the wake of Musladin, most courts have concluded that although the wearing

of memorial buttons at trial carries a risk of prejudicing the defendant’s right to a fair trial,

the practice is not inherently prejudicial. See, e.g., State v. Iromuanya, 806 N.W.2d 404, 432

(Neb. 2011) (concluding that “the wearing of victim memorial buttons by spectators at a

criminal proceeding” was not the same “as state-sponsored procedures showing a probable

deleterious effect on fundamental rights and calling for close judicial scrutiny”); Allen v.

Commonwealth, 286 S.W.3d 221, 229 (Ky. 2009) (declining “to conclude that the wearing

of such clothing or buttons in the courtroom is so inherently unfair as always to constitute

reversible error”); State v. Lord, 165 P.3d 1251, 1253-54 (Wash. 2007) (“A simple picture

button, a sign of support or sympathy that does not expressly advocate guilt or innocence,

does not alone impermissibly bias a jury.”). We agree with the rationale expressed in these

cases. Unlike forcing a defendant to stand trial in prison garb, see Estelle, 425 U.S. at 503,

505 (holding that threat to the “fairness of the factfinding process” created by forcing a

defendant to appear in prison garb must be justified by an “essential state policy”), or to

appear in shackles, see Deck v. Missouri, 544 U.S. 622, 629 (2005) (holding that “the use of

physical restraints visible to the jury” is permissible only when the trial court determines that

“they are justified by a state interest specific to a particular trial”), the wearing of memorial

buttons that display photographs of the victims does not “‘undermine[] the physical indicia

of innocence’” or “‘the related fairness of the fact-finding process.’” Mobley v. State, 397

S.W.3d 70, 100 (Tenn. 2013) (quoting Deck, 544 U.S. at 630). Consequently, because the

wearing of memorial buttons by courtroom spectators does “not automatically present an

unacceptable risk . . . of impermissible factors coming into play,” see Lord, 165 P.3d at 1254

(citations and internal quotation marks omitted), the determination whether to permit

spectators to wear memorial buttons lies most properly within the sound discretion of the trial

court. We make this conclusion mindful that it is the duty of the trial court to control the

proceedings and “that a trial judge has broad discretion in controlling the course and conduct

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of the trial.” See, e.g., State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994). The trial judge,

who sees the buttons, the courtroom, and the jurors first hand, is in the best position to

determine the potential impact of the buttons on the defendant’s right to a fair trial. See

Deck, 544 U.S. at 629 (emphasizing “the importance of preserving trial court discretion” in

matters of courtroom decorum). In this case, the trial court utilized a measured approach

when making the decision to allow the victims’ immediate family members to wear the

buttons at issue here. The court carefully crafted a rule designed to limit the negative impact

of the buttons and rigorously enforced its ruling during trial. Under these circumstances, we

cannot say that the trial court abused its discretion.

IX. Interception of Privileged Communications

The defendant asserts that the trial court erred by refusing to dismiss the

presentment following the discovery that the State had intercepted a letter from the

incarcerated defendant addressed to his counsel. The State avers that the trial court did not

err.

Prior to trial, the defendant moved the trial court to dismiss the presentment on

grounds that the State had violated his Sixth Amendment right to counsel by intercepting

privileged communications between the defendant and his attorneys. The defendant noted

that correspondence from the defendant, who was in jail, to his counsel had been opened,

copied, reviewed by members of the district attorney’s office and reproduced in the discovery

materials provided to all the parties.

At the hearing on the defendant’s motion, Knox County Sheriff’s Office

(“KCSO”) Officer Frank P. Nauss, Jr., the “gang intelligence officer in the mailroom” of the

Knox County Detention Center, testified that in 2008, “homeland security division” Officer

Hugh Williams instructed Officer Nauss to “censor” the defendant’s mail, which meant he

was to copy all of the defendant’s mail and send a copy to Officer Williams. He said that he

was to copy “everything except legal mail,” which he described as “off-limits” and

“irrelevant.” Every item he copied was forwarded to Officer Williams and Investigator Tom

Walker. He acknowledged that the request for copies of the defendant’s mail came from the

district attorney general’s office.

When “censoring” mail, Officer Nauss typically opened the letters from the

inmate and copied the contents. He then returned the contents to the envelope and resealed

it before sending it on to the intended recipient. He insisted that he did not read the contents

while copying the letters. His process, he said, changed “around July 1st of 2008” due to an

increase in “the sheer volume of copies” that he was asked to make. At that point, Officer

Williams instructed him to “pull the mail, look at it as needed, look at the documentation –

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the letter as needed and then copy anything that [Officer Nauss] thought was – would be of

interest to homeland security.”

On February 21, 2008, Officer Nauss “processed and copied” an envelope from

the law firm of Eldridge & Blakney that was addressed to the defendant and marked

“personal and confidential.” On April 23, 2008, Officer Nauss opened and copied one letter

addressed to and three letters from the defendant, including legal mail. All the copies were

sent to KCSO homeland security department.

Officer Nauss testified that he could not answer the question why the

defendant’s legal mail had been opened and copied when it was his practice to avoid

tampering with legal mail. He said that he “just did not catch it” when he opened the

defendant’s legal mail. He maintained that he had not intentionally copied the defendant’s

legal mail. The same thing happened, he said, when he accidentally opened and copied legal

correspondence between Vanessa Coleman and her attorney. He insisted that he had not

been instructed to copy legal mail and claimed that he copied Ms. Coleman’s mail only

because he did not recognize the name of her attorney. Officer Nauss said that after Officer

Williams realized that a piece of legal mail had been copied, he alerted the district attorney

general’s office. He was then instructed to shred his copy of the letter and prepare a

memorandum recounting the situation.

KCSO Officer Hugh Williams testified that shortly after the defendant’s arrest,

the district attorney general’s office instructed him to monitor the defendant’s mail and that

his instructions strictly forbade the intercepting of legal mail. He identified a letter addressed

to the defendant’s counsel that was intercepted in April 2008 and said that “[i]

This text is long and has been trimmed here. Open the source document for the complete record.