State of Tennessee v. Howard Hawk Willis

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

October 1, 2015 Session Heard at Nashville

STATE OF TENNESSEE v. HOWARD HAWK WILLIS

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Washington County

No. 28343 Jon Kerry Blackwood, Judge

_____________________________

No. E2012-01313-SC-DDT-DD – Filed July 6, 2016

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This appeal arises from the murder of two teenagers, accompanied by the

dismemberment of one of them. A jury convicted the defendant, Howard Hawk Willis,

of two counts of premeditated first-degree murder and one count of felony murder in the

perpetration of a kidnapping. The jury sentenced the defendant to death on each

conviction. The defendant appealed, and the Court of Criminal Appeals affirmed his

convictions and sentences.1 On appeal, the defendant contends, inter alia, that certain

incriminating statements he made to his ex-wife should have been excluded because she

was acting as an agent of the State at the time the statements were made. He asserts that

the admission into evidence of the statements violated his right against self-incrimination

under the Fifth Amendment to the United States Constitution and article I, section 9 of

the Tennessee Constitution. For purposes of the right against self-incrimination, we hold

that this is a case of ―misplaced trust‖ in a confidant and there was no violation of the

Fifth Amendment. The defendant also argues that the admission of the statements

violated his right to counsel under the Sixth Amendment to the United States Constitution

and article I, section 9 of the Tennessee Constitution. The incriminating statements to the

ex-wife were made during in-person meetings with her at the jail and during recorded

telephone calls from jail. As to statements made to the ex-wife prior to indictment, we

hold that the defendant‘s Sixth Amendment right to counsel had not attached, so there

1

After the case was docketed in this Court, we entered an order identifying four issues for oral

argument, in addition to the mandatory review Tennessee Code Annotated section 39-13-206(c)(1) (2014)

requires this Court to perform. ―Prior to the setting of oral argument, the Court shall review the record

and briefs and consider all errors assigned. The Court may enter an order designating those issues it

wishes addressed at oral argument.‖ Tenn. Sup. Ct. R. 12.2.

was no violation regardless of whether the ex-wife was acting as an agent of the State. As

to statements made in person to the ex-wife after indictment, the evidence shows only

that the State willingly accepted information from a cooperating witness. We hold that,

for a cooperating witness or informant to be deemed a ―government agent‖ for purposes

of the Sixth Amendment right to counsel, the defendant must show that the principal—

the State, personified by law enforcement officers—manifested assent, either explicitly or

implicitly, to have the cooperating witness act as a government agent, and that the State

had some level of control over the witness‘s actions with respect to the defendant.

Agency cannot be proven based solely on the actions of the alleged agent, so proof that

the ex-wife repeatedly contacted law enforcement is not sufficient in and of itself to show

that the State assented to have her act as its agent. Therefore, the admission into evidence

of the statements made in person to the ex-wife after indictment did not violate the

defendant‘s Sixth Amendment right to counsel. As to the incriminating statements made

by telephone, we hold that, by placing the telephone calls to his ex-wife from jail with

full knowledge that all calls were subject to monitoring and recording, the defendant

implicitly consented to the monitoring and recording of his conversations and waived his

Sixth Amendment rights. After full review, we affirm the judgments of the trial court

and the Court of Criminal Appeals upholding the defendant‘s two convictions of first

degree murder, and we affirm the sentences of death.

Tenn. Code Ann. § 39-13-206(a)(1) (2014); Judgment

of the Court of Criminal Appeals Affirmed

HOLLY KIRBY, J., delivered the opinion of the Court, in which CORNELIA A. CLARK and

JEFFREY S. BIVINS, J.J., joined. SHARON G. LEE, C.J, filed a concurring opinion.

Hershell D. Koger, Pulaski, Tennessee (on appeal); Kathleen Morris, Nashville,

Tennessee (on appeal); and Howard Hawk Willis, pro se (at trial), for the appellant,

Howard Hawk Willis.

Herbert H. Slatery III, Attorney General and Reporter; Andree Sophia Blumstein,

Solicitor General; James E. Gaylord, Senior Counsel (on appeal); and Dennis Brooks,

Assistant District Attorney General, (at trial), for the appellee, State of Tennessee.

OPINION

FACTS AND PROCEDURAL HISTORY

This case arises from the October 2002 deaths of two teenagers, seventeen-year-

old Adam Chrismer (hereinafter ―Adam‖) and his sixteen-year-old wife, Samantha

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Chrismer (hereinafter ―Samantha.‖)2 The defendant was indicted for the premeditated

first-degree murder of Adam, the premeditated first-degree murder of Samantha, the

felony murder of Samantha in the perpetration of a kidnapping, the felony murder of

Adam in the perpetration of first-degree murder, two counts of abuse of the corpse of

each victim, and one count of abuse of the corpse of Defendant‘s stepfather, Sam

Thomas. The State dismissed the charge of felony murder of Adam. The trial court

severed the murder counts from the abuse of a corpse counts. After multiple changes in

counsel that resulted in long delays in the proceedings, the trial court ultimately found

that the defendant had implicitly waived and forfeited his right to be represented by

counsel, and ordered him to proceed pro se at trial; it appointed advisory counsel to assist

him. On interlocutory appeal, the Court of Criminal Appeals affirmed the trial court‘s

order that the defendant proceed pro se. See State v. Willis, 301 S.W.3d 644, 645 (Tenn.

Crim. App. 2009). On remand, the trial judge, Judge Lynn W. Brown, recused himself

from the case, and Judge Jon Kerry Blackwood was designated as the trial judge.

A. Pretrial Motions

The defendant filed numerous pretrial motions. Given the complexity of the case,

the evidence adduced at the hearings on those motions will be summarized as it becomes

relevant to a discussion of the issues below.

B. Guilt Phase

1. State’s Proof

The trial was held in June 2010, and the following evidence came before the jury.

Victims Adam and Samantha married in August 2002. Sometime earlier that year, they

struck up a friendship with the defendant‘s daughter, Kelly Willis, (hereinafter ―Kelly‖).3

Through Kelly, Adam and Samantha became acquainted with the defendant. Various

witnesses testified that they saw the victims at the Johnson City home of the defendant‘s

mother, Betty Willis (hereinafter ―Betty‖), on various occasions between April 2002 and

September 2002. Photos taken in an August 2002 photo session at a Chattanooga,

Tennessee Olan Mills Photography studio depicted the victims with each other and with

the defendant.

Vickie Rhyne was a veterinarian with the East Ridge Animal Hospital in

Chattanooga. She testified that, on September 25, 2002, a pet dog named ―Doge‖ was

2

Because so many of the parties involved in this case share the same last name, we use the

parties‘ first names to avoid confusion. No disrespect is intended by this practice.

3

Ms. Willis‘s name is spelled at various points in the record as ―Kelly‖ or ―Kelli.‖ For the sake

of consistency, we will use ―Kelly.‖

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checked in for boarding. Samantha Chrismer was listed as the owner of ―Doge,‖ and the

defendant was listed on the check-in form as an emergency contact. No one ever came to

pick up the dog. Dr. Rhyne did not know whether anyone ever tried to contact the

defendant as the emergency contact. At some point, she learned that the owner was

deceased. Eventually, in January or February 2003, Dr. Rhyne took the dog home to live

with her.

Johnson City attorney James Robert Miller testified that he and his secretary went

to Betty‘s house at 104 Brentwood Drive, in Johnson City, during the lunch hour on

September 27, 2002, to handle a routine business matter. When he drove up, he saw the

defendant standing outside. When he went inside, the kitchen, bathroom and living room

areas of the house were ―covered in a lot of debris.‖ He saw two teenagers—a male and

a female—inside the home playing video games on the television. Mr. Miller chatted

with the teenage girl. She told him that she met the defendant at a Hardee‘s restaurant ―a

week or two before,‖ and came up from Georgia to clean the house. Later, while he was

still at Betty‘s house, Mr. Miller observed the teenage girl in the back yard with the

defendant. She spoke on a cell phone and then handed it to the defendant, who spoke on

the same phone and then handed it back to her.

Wilma Clay was Betty Willis‘s next-door neighbor. Ms. Clay testified that, on

various occasions between April and September 2002, she observed the defendant, his

daughter, Kelly, a young girl and a young man at Betty‘s house. She did not see the

teenagers after September 2002. In the early morning hours of Saturday, October 5,

2002, Ms. Clay went outside her home to smoke a cigarette and saw the defendant, also

smoking a cigarette, standing outside next to Betty‘s red Jeep. The Jeep appeared to be

filled with personal belongings. When the defendant finished smoking his cigarette, he

threw it on the ground, picked up a black plastic bag from the back of the Jeep, and threw

it on the ground. The neighbor finished her own cigarette and re-entered her house.

Sometime later, she came back out to get the newspaper and noticed that Betty‘s garage

door was down but there was a light on inside the garage. She did not think that the

garage light was on the first time she went outside.

At the time of the events in question, Samantha‘s mother, Patty Leming, lived in

Chattanooga, Tennessee. She had five children, including sons, Daniel Foster and

Richard Foster, and the victim, Samantha. The defendant‘s daughter, Kelly, initially

befriended Daniel and Richard, and later befriended Samantha. Ms. Leming testified

that, at one point prior to their disappearance, the victims were living with Kelly in the

defendant‘s Rossville, Georgia trailer.4 Ms. Leming assumed that the defendant was

4

Rossville, Georgia, lies across the Tennessee/Georgia border, just south of Chattanooga,

Tennessee.

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living there as well. During that period, she saw Samantha weekly because the defendant

brought Samantha by her house to visit. Approximately one week before the victims

disappeared, they moved into their own trailer, also in Rossville, Georgia.

Ms. Leming last saw the victims on October 4, 2002, at a Chattanooga Pizza Hut.

She and Samantha were waiting for a pizza when Adam arrived and said to Samantha,

―Howard said [] let‘s go.‖ The victims left in a red Jeep that Ms. Leming thought

belonged to the defendant. Ms. Leming said it appeared to her that the defendant was

driving the vehicle. After that, all of Ms. Leming‘s attempts to reach Samantha were

fruitless.

Adam‘s mother, Teresa Chrismer, lived on Lookout Mountain, Georgia.5 Adam

was the youngest of her four children. Ms. Chrismer testified that when Adam met

Samantha, he moved out of her house. At some point during 2002, Ms. Chrismer became

acquainted with the defendant because he brought Adam and Samantha to her house to

visit. The last time she talked to Adam was on October 4, 2002. Adam called her, upset

and crying, and told her that he wanted to come home. Although Adam made a practice

of calling her every two or three days, after October 4, all her attempts to reach him were

fruitless. She called the contact number Adam had given her and when there was no

answer, she left a voice message for him.

On or about October 7 or 8, 2002, Ms. Chrismer received a call from a Bradley

County detective who was looking for Adam. The call prompted her to file a missing

persons report on Adam. Subsequently, on the evening of October 11, 2002, Ms.

Chrismer received a call from the defendant. Caller I.D. indicated that the defendant was

using the same phone on which she earlier left the message for Adam. When she asked

the defendant if he knew where Adam was, he told her the last time he had seen Adam

was at the Rossville, Georgia trailer. While Ms. Chrismer was on the telephone with the

defendant, she directed her husband to go to a neighbor‘s house to call the Walker

County, Georgia Sheriff‘s office and inform them of the contact. During her

conversation with the defendant, Ms. Chrismer could hear two women talking in the

background; the defendant was trying to get them to ―shut up.‖ She described his

demeanor on the telephone as ―cool as a cucumber.‖ On approximately October 13,

2002, someone from an East Tennessee law enforcement agency contacted Ms. Chrismer

and asked her for a description of any unique physical features of Adam‘s head or face.

Her husband told them that Adam had a BB imbedded in his cheek from a prior injury.

Patrol Officer Bill Burtt testified that, in October 2002, he was the Captain of the

criminal investigations division for the Bradley County, Tennessee Sheriff‘s

5

Lookout Mountain straddles the Tennessee-Georgia state boundary, just south of Chattanooga,

Tennessee.

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Department.6 The defendant was scheduled to come in for an interview on October 4,

2002, on another matter, but he called one of Officer Burtt‘s co-workers, Detective

Shaunda Efaw, and told her he could not come in that day. On October 8, 2002, the

defendant came in and they interviewed him at that time. During the course of that

interview, they asked the defendant if he knew the whereabouts of the victims. He

indicated that he had last seen them on October 4, 2002, and he thought they were

possibly in Georgia. Officer Burtt sent detectives into Georgia to try to find the victims,

and spoke that day to Adam‘s mother on the phone. He believed that Adam‘s mother

filed a missing persons report after he spoke to her. On October 11, 2002, Officer Burtt

and two other Bradley County officers went to Johnson City, Tennessee, and served an

unrelated arrest warrant on the defendant. By this time, they suspected that the defendant

was involved in the disappearance of Adam and Samantha. At the time of his arrest, the

defendant was at the home of his Aunt Marie, at 1324 Lowell Street, which was around

the corner and behind his mother Betty‘s house. Both a blue Jeep and a red Jeep were

parked at Aunt Marie‘s residence at that time. The red Jeep was towed to Bradley

County. Detective Shaunda Efaw, also of the Bradley County Sheriff‘s Department,

testified that the defendant was supposed to meet with her on October 4, 2002, but did not

show up that day. He came in on October 8, 2002, however, and she interviewed him at

that time. When questioned as to the whereabouts of the victims, the defendant said that

he had not seen them since he saw them in North Georgia on about October 4th. He

indicated that his ex-wife, Wilda Willis7 (hereinafter ―Wilda‖), might better recall the

date. On October 10, 2002, Detective Efaw received from the defendant a message

asking her to call him. When she did, he reiterated that the last time he saw the victims

was at their Mohawk Road trailer in Rossville, Georgia. On October 11, 2002, Detective

Efaw was in Washington County, Tennessee, searching for the victims. She was present

when the defendant was arrested on a federal warrant at the home of his Aunt Marie.

Detective Efaw also recalled that both a blue Jeep and a red Jeep were parked at Aunt

Marie‘s house at the time, and that one of them was towed from the scene at the direction

of her Bradley County supervisors. She believed that the red Jeep was the vehicle that

was towed because the defendant‘s ex-wife Wilda had reported that she saw the

defendant in a red Jeep on October 4th.

Detective Efaw testified that Wilda came to the Washington County Sheriff‘s

Office at about 9:00 p.m. on the evening of the defendant‘s arrest. She told them that she

intended to go to the defendant‘s federal court hearing in Greeneville, Tennessee, the

next day. Detective Efaw asked Wilda to record her telephone calls with the defendant.

Wilda agreed, and Detective Efaw gave Wilda a tape recorder for that purpose. After

that, Wilda periodically brought back completed recordings of those conversations. In

6

Bradley County, Tennessee, borders both Hamilton County, Tennessee (Chattanooga), to the

west and Georgia to the south.

7

By the time of trial, Wilda‘s last name was Gadd.

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January 2003, Detective Efaw went with Wilda to look for a chainsaw off I-75 in Bradley

County and to look for a gun at another location.

On October 11, 2002, fisherman Luther Earl Whitson saw what he believed was a

mask floating in Boone Lake, near a boat ramp at Winged Deer Park in Washington

County, Tennessee. It turned out to be a severed human head. Mr. Whitson called 911.

Over the defendant‘s objection to its gruesome nature, the trial court permitted the State

to introduce into evidence a color photograph of the severed head.

The next day, on October 12, 2002, fisherman Edward Brownlow Baker was

participating in a fishing tournament on Boone Lake. He saw a severed human hand

floating in the lake and called 911. Mr. Baker retrieved the hand with a fishing net and

carried it to shore near a bridge, where he met investigating officers. Over the

defendant‘s objection, the trial court permitted the State to introduce into evidence a color

photograph of the severed hand.

Later that day, Jerry Taylor, a bus driver for the Washington County Sheriff‘s

Department‘s community service program, brought a crew of inmates to walk the bank of

Boone Lake near the Devault Bridge. Within fifteen to twenty minutes, they found

another severed human hand. Over the defendant‘s objection, the trial court permitted

the State to introduce into evidence a color photograph of the second severed hand.

At some point during this same period, Isaac Nichols was fishing with his

daughter and his nephew on the banks of Boone Lake. Mr. Nichols‘ daughter found a

piece of human skull that measured approximately five inches in diameter. Mr. Nichols

called 911 and turned the skull fragment over to the police.

Dwayne Cowan was the booking officer at the Washington County Jail when the

defendant was brought in on the federal warrant on October 12, 2002. He testified that,

when booking a person, the booking officer collects all personal effects and secures them,

fingerprints the inmate, then assigns the inmate a classification status. Mr. Cowan

identified the property receipt for the items collected from the defendant on October 12,

2002. Included on the list of items was a pair of white tennis shoes.

After the defendant‘s arrest, police monitored and recorded a series of telephone

calls from the jail between the defendant and his mother. In one of the calls, when Betty

referred to a ―storage unit,‖ the defendant quickly told her to ―shut up.‖ After hearing

that exchange, police began contacting self-storage facilities in the area. They learned

that, on October 10, 2002, Betty had rented Unit X47 at the 24-Hour Self Storage facility

in Johnson City, Tennessee. Catherine Campbell was the manager of that storage facility.

Ms. Campbell testified that, on October 10, 2002, a ―middle aged to older‖ man called to

inquire about renting a unit for his mother. When Ms. Campbell told the caller that she

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would have to speak to his mother directly, a female came onto the phone and identified

herself as Betty Willis. Ms. Campbell instructed the woman to fill out an application and

leave it, along with a payment of fifty-five dollars, in a lockbox that was on the property

for that purpose. Later that evening, Ms. Campbell went by the facility and picked up the

completed paperwork and a check. Ms. Campbell identified the contract, completed in

the name of ―Betty H. Willis‖ with a reported address of 104 Brentwood Drive, in

Johnson City, Tennessee. Ms. Campbell also identified a check submitted on Betty‘s

bank account as payment. The contract listed Betty‘s sister, Marie Holmes, as the

emergency contact. The bank returned the check four days later for ―non-sufficient

funds.‖ Ms. Campbell explained that the entry code for the gate to the facility was the last

four digits of the lessee‘s social security number. On cross-examination, she conceded

that there was no video surveillance, so there was no way to know for certain who

entered onto the property through the gate.

Dr. Larry Miller, a forensic document examiner for the Department of Criminal

Justice at East Tennessee State University, was accepted as an expert in handwriting

analysis. He examined the rental contract for the 24-Hour Self Storage facility and the

check written to the facility, both purportedly signed by Betty Willis, and compared these

documents to a known handwriting sample from Betty. Dr. Miller opined that the

signature on both the contract and the check was written by Betty.

When law enforcement officers learned about the rented storage unit, police

officers went to the unit and found it padlocked.8 However, the smell of decay was

apparent, and officers observed maggot activity at the crack where the door met the

concrete. Based on the facts known at that point, police officers contacted the Tennessee

Bureau of Investigation (TBI). They secured the storage unit by parking two patrol cars at

the scene overnight and obtained a search warrant for the unit. They also obtained search

warrants for Betty Willis‘s house at 104 Brentwood Drive in Johnson City, Tennessee,

and Marie Holmes‘ house at 1324 Lowell Street in Johnson City, Tennessee.

Inside the storage unit, officers found two beige 50-gallon Rubbermaid storage

containers covered with a blue tarp. Underneath the blue tarp, on top of the containers,

they found a hammer, a hatchet, and a pair of scissors. The Rubbermaid containers were

tied with yellow nylon rope. On top of the containers, there was a plastic bag containing

five pop-top style air freshener cans. Beside the containers on the floor were two large

plastic fuel cans containing kerosene. TBI forensic investigators collected fingerprint

samples from several objects in the unit, including the blue tarp that covered the

8

As it turned out, the Drug Task Force for the First Judicial District, which was involved in the

investigation, was also leasing a unit in the storage complex, so law enforcement officers were able to

gain entry onto the property through their own right of access.

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containers. A fingerprint taken from the tarp was later matched to the defendant‘s right

thumb.

When officers looked inside the storage containers, they found two human bodies.

There was a female body in one container, and a male body in the other, minus head and

hands. Both bodies were covered with layers of fabric, blankets and pieces of carpet.

The male body was also covered with a black coat that had a distinctive red plaid flannel

lining.9 Inside the container with the female body, there were live fly larvae but no

pupae. Inside the container with the male body, there were only pupae. Samples of the

larvae and pupae were collected from each container at the direction and guidance of

entomologist Dr. Erin Watson-Horzelski. The samples were later sent to Dr. Watson-

Horzelski for examination.

Washington County Sheriff‘s Department Investigator Todd Davis was present

during the search of the storage unit when the Rubbermaid containers with the victims‘

bodies were found. He later investigated local retailers who sold this type of container.

Investigator Davis found and purchased an identical container at the Johnson City

Walmart near Interstate Highway 26.

Joshua Hopkins worked in store loss prevention at the Johnson City Walmart

where Investigator Davis purchased the Rubbermaid storage tote. At the request of the

Washington County Sheriff‘s Office, he researched the sales history at that store for that

particular storage container. Store records reflected that, on October 7, 2002, at 10:29

a.m., someone purchased six (6) ―pop-top‖ style cans of air freshener of the same type

found in the storage unit. Later that day, at 3:51 p.m., someone purchased one 50-gallon

Rubbermaid container, a hatchet, and a particular brand of tennis shoes. The tennis shoes

were the same brand as those worn by the defendant on the day of his arrest. Mr.

Hopkins could not say who purchased the items and conceded that other Walmart stores

could have sold the same items.

The bodies were transported inside the storage containers to forensic pathologist

Dr. Mona Stephens (hereinafter ―Dr. Stephens‖) to be autopsied. The severed head and

hands recovered at Boone Lake were also sent to Dr. Stephens. Fingerprint analysis

performed on the female body matched Samantha. Fingerprints taken from the severed

hands matched Adam. The description given by Adam‘s father of the physical features

of Adam‘s head—particularly a BB shell in his cheek from a prior injury—was

determined by the medical examiner to be consistent with the human head found floating

in Boone Lake. Later DNA analysis of the male body inside the container confirmed that

it was Adam.

9

The defendant stipulated that jacket fibers found on the male body correlated with fibers found

on Adam‘s head.

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Dr. Stephens testified that, inside the container with Samantha‘s body, there were

fly larvae but no pupae casings. Samples were collected and refrigerated until they could

be sent to FBI Agent Rainer Drolshagen. The container in which Samantha‘s body was

found contained layers comprised of a pillow inside a pillowcase, two small rugs, and

then Samantha‘s body. The body was nude, and there was a gag around Samantha‘s

mouth. Each of her hands was bound with a plastic zip tie, looped together behind her

and then bound with a third zip tie. Each of her ankles was bound with a plastic zip tie as

well, but those zip ties were not bound together. Discoloration of Samantha‘s extremities

indicated that she was alive when she was bound. She sustained bruises to her right leg,

to the inside of her right breast, to her right shoulder, and to her feet. The fatal wounds to

Samantha were two gunshot wounds to her head. Dr. Stephens found one (1) bullet in

four (4) fragments in Samantha‘s neck.10 Drug screens revealed benzodiazepine in

Samantha‘s gastric contents and in her liver.

Dr. Stephens testified that when she opened the container with Adam‘s body, she

found fly pupae, but no larvae. As she had done with the container in which Samantha‘s

body was found, Dr. Stephens collected samples and refrigerated them until they could be

sent to F.B.I. Agent Drolshagen. The container in which Adam was found was layered

with two throw rugs, a size XXL black jacket, and then Adam‘s body. The body was

wrapped first in a blue comforter with sunflowers on it, and then a pink fleece blanket, all

tied up with black nylon rope. The black jacket had damage consistent with having been

cut through with a chainsaw. Fibers imbedded in the body, as well as bone fragments and

tissue in the materials, suggested that the body was wrapped when it was dismembered.

Once unwrapped, Adam‘s body, minus his head and hands, was observed to be dressed in

flannel boxer briefs and cargo shorts. His legs were cut through the bones, but the

connective tissue remained intact. The legs of the shorts displayed chainsaw marks, and

cuts on Adam‘s legs were consistent with those chainsaw marks. It appeared that

Adam‘s legs were cut in order to fold his body into the Rubbermaid container. The

absence of arterial blood indicated that Adam was already dead when his body was

dismembered.

Dr. Stephens testified that imbedded in Adam‘s severed head was the same type of

polyester batting material as was found wrapped around his body in the container. The

10

The Georgia Bureau of Investigation (GBI) later requested a second autopsy of Samantha‘s

body, which was performed by Dr. Mark Koponen, then Deputy Chief Medical Examiner for the GBI

laboratory in Atlanta, Georgia. He did not have Dr. Stephens‘ autopsy report at the time he performed his

own autopsy. Nevertheless, Dr. Koponen‘s autopsy results were consistent with those of Dr. Stephens

except in one respect: he x-rayed the body and found a bullet in Samantha‘s chest. After reviewing Dr.

Stephen‘s original autopsy report, Dr. Koponen opined that the bullet was originally in the cranial vault,

but had fallen down into the chest in the process of decomposition and manipulation of Samantha‘s body

between recovery and autopsy.

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head revealed a bullet entry wound beneath the chin, which traveled up through the

pharynx and out through the base of the skull. Stippling around the entry wound

suggested that the shot was fired within two feet of the wound. Bruising around the

wound indicated that Adam was alive when it was inflicted. A piece of front left parietal

skull, retrieved from the vicinity where the severed head and severed hands were found,

fit with the calvarial bone of Adam‘s head and had fractures and separations along the

cranial suture lines that were consistent with a saw mark.

Dr. Stephens testified that, because she had been present during the search of the

storage unit and had unpacked the storage containers during the autopsies, she also

participated in the search of the residence at 104 Brentwood Drive, to look for items in

the home that might match items found in the storage unit or inside the containers. When

she entered the house, Dr. Stephens said, it was in ―major disarray.‖ During the search,

officers found in a bedroom dresser drawer a pillowcase identical to the pillowcase that

was on the pillow inside the container with Samantha‘s body.

Dr. Linda Littlejohn, a forensic scientist in the microanalysis section at the TBI,

testified for the State as an expert on microanalysis. She received several items of

evidence to analyze in the case. Dr. Littlejohn compared ―a piece of jacket from [a] body

in [a] container,‖ with a piece of fabric found on the garage floor during the search of

Betty‘s property. Microscopic examination revealed the two fabrics to be of common

origin. Dr. Littlejohn also examined debris recovered from a chainsaw. She noted

numerous pieces of fabric and fiber bundles on the chain. When she compared that

debris to the piece of jacket she received from Dr. Stephens, she found that they were

microscopically consistent and concluded they had a common origin. Dr. Littlejohn also

examined two pieces of carpet—one found inside a container and one from 104

Brentwood Drive in Johnson City. The carpet fibers were consistent and could have had

a common origin. Finally, Dr. Littlejohn compared shoe prints found on the tarp that

covered the two storage containers, and partial shoe prints found on the floor of the 24-

Hour Self Storage unit, with shoes belonging to both Betty and the defendant. None of

the shoe prints were consistent with either pair of shoes.

In October 2002, FBI Agent Drolshagen was stationed in Johnson City,

Tennessee. He participated in several aspects of the investigation in this case. He was

present during the autopsy of Samantha. He assisted in executing the search warrant at

104 Brentwood Drive by participating in and videotaping the search. He also collected

evidence for testing from the 24-Hour Self Storage unit. Specifically, under the guidance

and direction of entomologist Dr. Watson-Horzelski, Agent Drolshagen collected and

stored insect evidence. Per Dr. Watson-Horzelski‘s instructions, he stored the insect

samples two ways: some in alcohol to preserve the state in which they were found, and

some in ground beef to preserve them as live samples. Those samples were sent to the

TBI forensic services laboratory until they could be examined by Dr. Watson-Horzelski.

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Agent Drolshagen testified that it was very cool inside the storage unit on the day in

October 2002 on which they executed the search warrant. Later, in January 2003, at the

direction of Dr. Watson-Horzelski, Agent Drolshagen returned to the storage unit and

collected daily samples of high and low temperatures inside the unit for four consecutive

days, on January 9, 10, 11 and 12, 2003. To collect those temperatures, Agent

Drolshagen used a thermometer that recorded both temperature and humidity. He placed

the thermometer on the floor in the vicinity where the Rubbermaid storage bins had been

sitting, and checked the readings every twenty-four hours over the course of those four

days. Agent Drolshagen also obtained from the National Oceanic and Atmospheric

Association (NOAA), a chart depicting the high and low temperatures for that geographic

area during the month of October 2002.

Dr. Watson-Horzelski testified for the State as an expert in entomology and

estimation of time of death. Her focus was on the association of insects—primarily flies

and beetles—with decaying animal material, and the examination of the insect

development to estimate time of death. To place her findings in context, Dr. Watson-

Horzelski first described in detail the life-cycle of the Blow Fly, the particular insect

species she observed on the bodies of the victims. After an animal dies, she explained,

flies are attracted to the decaying material, particularly any natural orifices or exposed

wounds. During the first part of the cycle, the flies will mate and lay eggs. During the

second part of the cycle, larvae hatch from the eggs and feed on the dead tissue. The

larvae then transform into pupae during the third stage, and in the fourth and final stage,

adult flies emerge from the pupae.

The rate of insect development, Dr. Watson-Horzelski said, depends on the species

at issue, the microhabitat and the temperature. The warmer the temperature, the faster the

rate of development. When insect specimens are collected from a dead body at a crime

scene, ideally they are divided into two samples. Some are placed in isopropyl alcohol to

preserve them at the particular life stage. Others are kept alive with something upon

which to feed for the purpose of species identification.

Since insect species development rates are published from controlled

environmental studies, Dr. Watson-Horzelski said, the first step is to identify the

particular species involved. Once that is done, the examiner considers the environment

where the body was found; this information helps the examiner determine how long it

would have taken for the flies to land and begin laying eggs on the body. It is harder for

the process to start in a new, pristine, airtight house than in a dirty environment (such as a

house with rotting food present), where there are likely already insects present. At the

time of her testimony, Dr. Watson-Horzelski had seen photographs of Betty‘s house at

the time of the search; she opined that conditions inside the home were favorable for

insect activity. At the storage facility where the victims‘ bodies were found, although the

door was well-sealed, there was a rope protruding that would have made for easier access

-12-

to insects. Dr. Watson-Horzelski noted that most of the fly activity was inside the

Rubbermaid storage containers, which indicated that the insect activity began before the

bodies were placed inside the containers.

Dr. Watson-Horzelski explained how ambient temperature factors into the

calculation of fly development. Since ambient temperatures for the storage unit were

collected in January 2003, several months after the victims‘ bodies were discovered in the

unit, Dr. Watson-Horzelski calculated what the temperatures would have been inside the

storage unit in October 2002 by using (1) those recorded temperatures, (2) the

temperature deviations inside the unit as compared to outside the unit at that time, and (3)

the outside temperatures recorded from the Tri-Cities weather station for October 2002.

Dr. Watson-Horzelski admitted on cross-examination that she was unaware that the

storage unit was not rented until October 10, 2002. She agreed that if the bodies had

been ―in an oven‖ before that time, it would have made a difference in her calculations.

Based on the limited fly activity inside the storage containers, however, she believed that

the victims were placed inside the containers soon after their death.

Dr. Watson-Horzelski testified that her examination of the fly activity present on

the victims‘ bodies led her to conclude that Adam was killed before Samantha. She

based her conclusion on the fact that the flies on Adam‘s body had matured to the one to

four-day-old pupae stage,11 but the flies on Samantha‘s body had matured only to the

larvae feeding stage; this suggested that some thirty-six hours separated the two deaths.

Based on the insect activity present, Dr. Watson-Horzelski estimated that Adam died

between October 5 and October 8, 2002, and that Samantha died between October 7 and

October 12, 2002.

Washington County Sheriff‘s Investigator Todd Hull was also present at the

autopsies of the victims. He testified that he transported tissue samples taken from both

bodies to Dr. Arpad Vass, the State‘s forensic anthropologist in Oak Ridge, Tennessee.

Dr. Vass testified that his analyses of tissue samples from the victims‘ livers and kidneys

were consistent with the finding that Adam had died first, since Adam‘s liver, in

particular, showed a more advanced stage of decomposition than did Samantha‘s liver.

Dr. Vass estimated Adam‘s time of death as between October 4 and October 8, 2002, and

Samantha‘s death as between October 6 and October 8, 2002.

Investigator Hull testified that from the time of the defendant‘s arrest on October

11, 2002, there was a police presence outside Betty‘s Johnson City house at 104

Brentwood Drive. On October 14, 2002, the night Adam‘s severed head was found, the

first search warrants were executed on Betty‘s home and Aunt Marie‘s home. After that,

there were two more searches of Betty‘s house, one on October 17, 2002, and another on

11

There were no empty pupae casings or newly emerged adult flies inside Adam‘s container.

-13-

October 23, 2002. Those searches yielded further evidence connecting the house to

either the victim‘s bodies or the storage unit.

Investigator Hull testified that, after the defendant was taken into custody, police

continued to monitor his telephone calls from the jail. In a conversation on the morning

of October 12, 2002, the defendant told his mother to ―do the things‖ he had previously

instructed her to do, and to get some air freshener for ―that stinking house.‖ In response

to information that police had towed his car (the blue Jeep), the defendant commented

that they were wasting their time because there was nothing in that car and never had

been. In a later conversation between the defendant and his Aunt Marie on October 13,

2002, Marie told the defendant that his ex-wife Wilda knew that the blue Jeep wasn‘t

―down there‖ and that he was in the red Jeep. The next day, on October 14, 2002, the

defendant had a conversation with his mother Betty in which she asked him what they

were going to do about ―moving the furniture,‖ since ―[i]t‘s padlocked.‖ The defendant

asked her, ―because of the check?‖ Betty responded that she didn‘t have $55. In context,

it appeared as though the defendant and his mother were discussing the 24-Hour Self

Storage unit where the victim‘s bodies were found.

On October 15, 2002, the defendant and his mother discussed the police search of

her home and Aunt Marie‘s home. Betty told him that law enforcement officers took her

red Jeep and some clothing; she speculated that they took her clothing because they were

looking for blood. She also indicated her belief that she would be charged as an

accessory to murder. Further, she told the defendant that police had found two severed

hands and a severed head that had been identified by Adam‘s mother as belonging to

Adam. Betty said, ―I‘ve not taken anything over there to the storage shed. I haven‘t been

back ‗cause I thought we were followed.‖ When the defendant started to respond,

―Would you shut . . . ,‖ Betty interjected, ―They already know.‖

Finally, in a conversation on October 16, 2002, the defendant called his Aunt

Marie‘s house; his mother Betty was there, and he spoke to her. When the defendant told

Betty that he had been brought to the booking area of the jail, she told him that she

understood he was being charged because they found a ―big spot of blood‘ in the blue

Jeep. Betty also told him that the police took her car because they believed that he had

driven it on Friday, October 4, 2002, with the victims inside. The defendant denied doing

so. Betty then proceeded to tell him that ―Dick‖ had told her that, within a day or two,

she would be charged as an accessory to the deaths of the victims on the theory that she

planned the murders and the defendant carried them out. Betty complained that ―they‖

had taken everything out of the garage during the search, including a George Foreman

grill. When the defendant exclaimed, ―What in the damn hell is a George Foreman grill

evidence to?‖ Betty responded, ―I don‘t know, Howard. We probably cooked the parts

before we got rid of them, okay?‖

-14-

In 2002, Perry Allen was employed at the Washington County Detention Center;

he testified about the telephone system in use at that time. After his arrest, the defendant

was incarcerated in a ―lockdown pod,‖ in which inmates were locked inside their cells for

all but two hours a day. The telephone system in use that that time was the ―Evercom

System.‖ Mr. Allen explained that although most telephone calls made from the pod

were recorded, inmates could manipulate the system to avoid recording by calling an

outside land-line, and then having that party make a third-party call. Although the

outside land-line was recorded, sometimes either the third party‘s or the defendant‘s

conversation would not be recorded. Mr. Allen opined that, at the time the defendant was

incarcerated in Washington County, he may have talked to someone by telephone without

the call being recorded.

Numerous law enforcement personnel from the F.B.I., the T.B.I., the Johnson City

Police Department, the Washington County Sheriff‘s Office, and the 1st Judicial District

Drug Task Force assisted in the execution of the search warrant at Betty‘s house. F.B.I.

Agent Drolshagen testified that there was a foul odor throughout the house, and

especially in the garage. Inside the house, Agent Drolshagen observed, there was an

enormous amount of debris on the carpet, including white paint stains and glass

fragments. Those were collected for future analysis. Flies and fly larvae were present on

the living room floor. One area of the living room carpet had a large bleach spot. In the

dining room and hallway, portions of the carpet were ―haphazardly cut‖ and had been

removed.

Johnson City Police Department Officer Debbie Pattillo was present during the

search of Betty‘s house and was also present during Samantha‘s autopsy. During the

search, Officer Pattillo found inside a dresser drawer a pillowcase with a yellow and tan

floral pattern. She said that the pillowcase found in Betty‘s home was identical to a

pillowcase found inside the container with Samantha‘s body.

Police found many other items of evidence during the search of Betty‘s house that

connected with either the storage unit or the Rubbermaid containers that held the victims‘

bodies. Glass shards found in the carpet in Betty‘s home were identical to glass shards

collected from carpet that was inside the container that held Samantha‘s body. Black

nylon rope found inside the house was consistent with the texture and appearance of the

rope tied around Adam‘s body. A swatch of fabric found beneath the garage door in

Betty‘s home was consistent in appearance with a jacket found inside the container that

held Adam‘s body. A pop-top air freshener found inside the house was the same type,

brand, and scent as air fresheners found inside the storage unit.

Police also found a red Jeep parked behind Betty‘s house at the time of the search.

While the inside of the house was definitely not clean, the red Jeep was extremely so. In

fact, when police searched the premises, the carpeting inside the red Jeep was still damp.

-15-

Agent Drolshagen testified that, despite the Jeep‘s clean appearance, he smelled a foul

odor inside. The red Jeep was taken to the TBI for serology testing, but authorities found

nothing in the Jeep to link it to either the defendant or the victims.12

Behind Betty‘s house and near a neighbor‘s outbuilding, Johnson City Police

Department Lt. Steve Sherfey found an unloaded Rizinay 7.655 automatic pistol lying in

grass. The neighbor, Larry Hendrix, told officials that he did not own the pistol and had

never seen it. There were three unfired .32 caliber bullets lying on the ground within one

foot of the gun. Lt. Sherfey turned over the gun to the Washington County Sheriff‘s

Investigator Tommy Remine.

Inside Betty‘s garage, Drug Task Force Lt. Thomas Eugene Smith found a box of

Winchester .32 caliber ammunition in a paper bag that was sitting on top of a dresser.

The bullets were copper-jacketed.

Special Agent Don Carman, a forensic scientist in the firearms identification unit

of the T.B.I. laboratory, testified as an expert in the field of ballistics. Agent Carman

examined the Rizinay 7.655 automatic pistol found in Betty‘s back yard, the box of .32

caliber ammunition found in Betty‘s garage, and the three bullets found near the pistol.

Agent Carman noted that the pistol was a very old gun of Spanish origin, from the World

War I era. Of the thirty-nine bullets in the Winchester box, thirty-seven were Winchester

brand and two were Remington brand. He noted unique ―bunter marks‖ on the three

bullets found near the gun, which were identical to the bullets in the Winchester box.

Ballistics comparison testing of sample bullets fired from the recovered pistol matched

the bullet recovered from Samantha‘s body. Agent Carman concluded that the two

bullets were fired from the same pistol.

Special Agent Bradley Everett worked in the Serology/DNA Unit for the T.B.I.

He testified as an expert in the fields of forensic serology and forensic DNA testing.

Agent Everett participated in the retrieval of evidence from both the 24-Hour Self

Storage unit and Betty‘s property. Included in the evidence recovered were three

cigarette butts found on Betty‘s property. Special Agent Everett examined these cigarette

butts for the presence of DNA. On one cigarette butt, he found DNA consistent with a

female offspring of Patty Leming, Samantha‘s mother. On another cigarette butt, he

found a mixture of DNA from the offspring of Patty Leming and an unidentified person.

And on the third cigarette butt, he found a mixture of DNA in which a major contributor

was a male offspring of Teresa Chrismer, Adam‘s mother.

12

Examination and testing of a blue Jeep later seized from the defendant‘s Aunt Marie‘s house

was similarly unfruitful. The fabric of the driver‘s seat had blood and human DNA that matched the

defendant but did not link the blue Jeep to the victims.

-16-

Special Agent Everett also examined a Sears Craftsman electric chainsaw for the

presence of serological evidence. There was a lot of debris on the chainsaw, but he could

not visually identify the debris as human bone or tissue. Testing of the debris indicated

the presence of human blood and human DNA, but it was so degraded that Special Agent

Everett could not obtain a DNA profile. He testified that the chain on the saw was rusted.

He acknowledged that outside exposure to weather could have affected the test results.

The defendant‘s ex-wife Wilda testified that she married the defendant in 1992

and they divorced in July 2002. They remained in contact after the divorce. Wilda

recalled that, on October 4, 2002, the defendant stopped by her house in Ft. Oglethorpe,

Georgia, in Betty‘s red Jeep. Wilda saw a blonde female inside the Jeep and a young

male standing outside the Jeep. The next time she saw the defendant was on October 8,

2002, when he came down to talk to officers at the Bradley County Sheriff‘s Office. At

that time, the defendant told Wilda that he was unable to find the victims that day.

Either the day before or the day of the defendant‘s arrest on Friday, October 11,

2002, the defendant called Wilda and told her that ―Patty [Leming]‖ had called to tell him

that Samantha was missing and ask whether he knew of her whereabouts. When Wilda

asked him where the victims were, he told her they had left Johnson City that morning.

After the defendant‘s arrest on October 11, 2002, either Betty or Marie called Wilda and

conveyed the defendant‘s request that she meet him the following Monday at the federal

court in Jonesborough13, Tennessee.

In the meantime, the Bradley County Sheriff‘s Office asked Wilda to come to

Johnson City, in Washington County. On October 15, 2002, Wilda went to Washington

County and met with officers from both the Johnson City Police Department and the

Washington County Sheriff‘s Office. In that meeting, Wilda agreed to wear a wire and

meet with Betty and Aunt Marie; she planned to meet with the defendant after that.

Later, while Wilda was at Aunt Marie‘s home, the defendant called and asked her to visit

him in jail; he said he had some things to tell her.

On the evening of October 15, 2002, Wilda visited the defendant at the

Washington County detention center at his request. She was able to talk to him only

through a Plexiglas window. Because the Plexiglas barrier made it hard to hear and

communicate, the defendant asked her to come back the next day with a tape recorder, a

note pad, and a pencil. When Wilda told him she thought it would be hard to get in to see

him a second time, he suggested that she bring a ―fifty-dollar lawyer‖ with her and

pretend to be his assistant, so that she could get inside and meet him face-to-face. He

said he would then have the attorney leave the room so he could talk to her privately. On

13

The federal courthouse is actually in Greeneville, not Jonesborough

-17-

cross-examination, Wilda acknowledged that it was possible that law enforcement gave

her money for a hotel room and meals for the night of October 15, 2002.

The following day, October 16, 2002, Wilda was wired again, and she paid

another visit to Betty and Aunt Marie. Later, the wire was removed and she returned to

the jail to meet with the defendant. Wilda did not bring an attorney with her, but she

brought the tape recorder and writing materials the defendant requested. This time, they

were able to meet in a private visitation room. Throughout Wilda‘s conversation with the

defendant, he repeatedly turned the tape recorder on and off. During their meeting, the

defendant confessed to Wilda that he ―blew [the victims‘] brains out,‖ cut off Adam‘s

head and hands and threw them in the ―river‖ near the Devault Bridge, then placed the

remainder of Adam‘s body and all of Samantha‘s body in a storage unit. The gist of the

conversation was that he had shot both victims at the same time on Sunday, October 6,

2002, at Betty‘s house. He indicated that he shot Adam first because Adam was ―wild on

something‖ and went ―all to pieces‖ and came after the defendant, and then he shot

Samantha immediately afterward. This conversation was recorded from a microphone

hidden inside a trash can in the visitation room.

After her conversation with the defendant on October 16, 2002, Wilda received

numerous telephone calls from the defendant. The Bradley County Sheriff‘s office had

given her a tape recorder to record her conversations with the defendant. She did so, and

then passed the recordings on to both the Bradley County Sheriff‘s Office and the

Washington County Sheriff‘s Office. Sometimes they provided her with blank tapes and

other times she procured her own tapes. After the conversation in which the defendant

admitted that he had killed both victims, he never again expressly admitted his culpability

to Wilda. However, some of the subsequent statements the defendant made to her

implicated him in the deaths of the victims. Wilda saw the defendant on the last Monday

in October 2002, before he was transported to New York to address his federal charges.

He continued to call her after he arrived in New York. His story to her about the deaths

of Adam and Samantha morphed over time; at one point he told her that Betty killed the

victims, at another time he said that Samantha‘s brother Daniel killed them, and at still

another time he claimed that the ―Mafia‖ murdered them.

On January 1, 2003, at the request of the defendant and his Aunt Marie and against

the advice of the law enforcement authorities, Wilda flew to New York and visited with

the defendant face-to-face in a large community room at the New York facility where the

defendant was detained. She had no recording device with her during their in-person

meeting and the conversation was not otherwise recorded. Wilda believed that, at the

time, the defendant was unaware that she had cooperated with law enforcement officers.

During their conversation, the defendant insisted that someone else had killed the victims.

He asked Wilda to do several things for him when she got back to Tennessee. The first

was to find a chainsaw that he claimed Betty had thrown out of a car window. The

-18-

defendant gave Wilda very specific directions on where to find the chainsaw. He told her

that from Chattanooga, she was to take I-75 North, past the Ooltewah exit, and exit at a

gravel pull-off for semi-tractor trailers. He instructed her to pull her car up to the

guardrail, walk until she could no longer see her car, then look to her right in a ditch,

where she would find the chainsaw. The defendant asked Wilda to retrieve the chainsaw,

clean it with gasoline to remove any fingerprints, and then take it to the home of

Samantha‘s brother, Daniel Foster. Once at Foster‘s house, she was to break inside, steal

some of Daniel‘s clothing, wrap the chainsaw in the clothing, hide the wrapped chainsaw

under the trailer, and then anonymously tip law enforcement about where it was.

When she returned to Tennessee, Wilda stopped first in Washington County to

meet with Investigator Hull, and then in Bradley County to talk to Detective Shaunda

Efaw. She related to them the instructions the defendant had given her for retrieving the

evidence. On January 3, 2003, accompanied by Bradley County Sheriff‘s Office

investigators, Wilda located the chainsaw by using the directions the defendant had given

her during their New York meeting. During the search, Wilda received a telephone call

from the defendant as he directed her to the location of the chainsaw; that conversation

was recorded. In a second conversation, also recorded, he directed her to find certain

other items, apparently thrown from a bridge into a river. The defendant told Wilda to

take these items to Daniel‘s house along with the chainsaw. In the telephone calls from

New York, the defendant was emphatic that Wilda secure the chainsaw before searching

for the other items, that she not take the chainsaw to her own house, and that the

chainsaw not be discovered by law enforcement until all the items were together. Once

that was achieved, the defendant instructed Wilda, she was to ―put the word out‖ on the

street that she wanted information on Daniel.

Wilda continued to tape record her telephone conversations with the defendant

after she returned to Tennessee, and she gave copies of those recordings to the

Washington County Sheriff‘s Office and the Bradley County Sheriff‘s Office. The gist of

one conversation was the defendant‘s claim that Samantha‘s brother, Daniel Foster, killed

the victims at Betty‘s house the week before the defendant was arrested. According to

the defendant, Betty told him about the murders and warned him that Daniel was setting

him up to take the blame. The defendant said Betty never told him why Daniel killed the

victims, but he understood that both victims were shot before Adam was dismembered.

In other telephone calls, the defendant asked Wilda to relay to Investigator Todd

Hull various ―riddles‖ and pictures he had drawn, supposedly in an effort to ―speed things

up.‖ The defendant also related to Wilda a summation of his version of what happened in

October 2002; Wilda understood that he wanted her to type it up and give it to the district

attorneys, although she never did so.

-19-

On cross-examination, Wilda conceded that, during the fourteen years she and the

defendant were together, Betty Willis was a constant source of trouble. In 1993, Wilda

took out a warrant against Betty. In 1999, when the defendant filed for bankruptcy, Betty

intervened and filed an objection to the bankruptcy. Wilda acknowledged that Betty

routinely threatened other people‘s lives. She also conceded that the defendant told her

that he had tried to record Betty talking about the case before he was arrested and put into

jail. Wilda admitted that, at a hearing on November 30, 2004, she had testified that the

only time the defendant ever admitted to her that he had killed anyone was in a face-to-

face conversation with him. She also admitted to having e-mail correspondence with

Gertrude Lark, the sister of the defendant‘s first wife, who had been missing for many

years. In one of those e-mails, Wilda wrote that she believed that Betty was involved in

the murder of the ex-wife, as well as ―some of those other kids Howard was connected

with in Georgia.‖ In a later e-mail to Ms. Lark, Wilda wrote that she planned to ask the

District Attorney to allow her to meet with the defendant face-to-face and ―push every

button I can to get Howard to tell the truth about everyone.‖

2. Defense Proof

The defense theory was that someone other than the defendant killed the victims.

During the defendant‘s cross-examination of Bradley County Sheriff‘s Detective

Shaunda Efaw, he brought out the fact that his ex-wife, Wilda, had brought to her a letter

postmarked October 8, 2002, from Chattanooga, Tennessee. During the defendant‘s

cross-examination of T.B.I. forensic scientist Bradley Everett, he brought out that Agent

Everett performed DNA testing on an envelope addressed to ―Betty Hawk‖ [sic] that was

postmarked October 8, 2002, and that a DNA profile developed from the envelope was

consistent with the offspring of Samantha‘s mother, Patty Leming. Dr. Larry Miller, who

earlier testified for the State as an expert in handwriting analysis, testified that he had

examined the letter and envelope addressed to ―Betty Hawk‖ and postmarked from

Chattanooga, Tennessee, on October 8, 2002. He concluded that the handwriting on both

the letter and the envelope was written by Samantha. He conceded that there was no way

to know when the letter was written or who might have mailed the letter.

T.B.I. Agent Bradley Everett testified that when he tested the white shoes and

clothing the defendant was wearing at the time of his arrest, he found no blood. He also

conceded that no blood belonging to either victim was found at Betty‘s 104 Brentwood

Drive address.

The defendant introduced the testimony of Dr. Robert Allen, who in September

2002 was Betty‘s neighbor and her physician as well. Dr. Allen testified that, on

September 15, 2002, Betty was hospitalized after she exhibited psychotic behavior,

paranoia, and anxiety. In addition, Dr. Allen said, when he went into Betty‘s residence in

mid-September 2002, he observed that it had been vandalized with graffiti on the walls.

-20-

The refrigerator and other appliances were overturned, the toilets were busted, and there

was insect/maggot-infested food debris on the floor. On September 17, 2002, Dr. Allen

wrote a letter to Betty‘s insurance company to support her claim of vandalism.

Dr. Neal Haskell, a forensic entomology consultant and professor of forensic

science at St. Joseph‘s College in Rensselaer, Indiana, testified in rebuttal to the State‘s

entomologist, Dr. Erin Watson-Horzelski. Dr. Haskell agreed with some of Dr. Watson-

Horzelski‘s broader conclusions—the stage of development and the species of phorid fly.

However, he believed there were major flaws in Dr. Watson-Horzelski‘s analysis of time

of death. First, Dr. Haskell faulted her attempt to correlate the temperatures recorded by

the weather station in October 2002 to the temperatures recorded inside the storage unit

in January 2003, because a cold front had moved through the area in January 2003, so the

temperatures were declining. Second, Dr. Haskell faulted Dr. Watson-Horzelski for

using too few data points—he believed that she should have used between ten and twenty

data points, and she only used four. Third, he perceived that her calculation of the

―Kamal data‖ was flawed because she failed to reference a base temperature, a

temperature below which fly development will not occur. In the formula for calculating

the time of death, Dr. Haskell asserted, base temperatures are a required factor; different

base temperatures will give different values. Fourth, he faulted her for using the same

correction factor for the days before the bodies were placed inside the storage unit,

because there was no information about where the bodies were on those days so it was

impossible to know the microenvironment for fly development. Fifth, he faulted her for

using the data for the Megaselia Scalaris sub-species of the phorid fly when the specific

sub-species of phorid fly was unidentified. Finally, Dr. Haskell faulted Dr. Watson-

Horzelski for assuming immediate colonization of the victim‘s bodies; he pointed out that

phorid flies do not fly at night, so there could have been a delay in colonization. He

testified that flies become active during the day, when temperatures reach fifty degrees or

warmer. Given the uncertainties in the temperatures and the timing of colonization, Dr.

Haskell claimed it was impossible to give a reliable and trustworthy estimate of time of

death.

On cross-examination, Dr. Haskell conceded that he did not see the insect

samples; in arriving at his opinion, he relied on Dr. Watson-Horzelski‘s reports. He was

not sure whether he had been provided with all of her data when he was reviewing the

case and forming his opinion. Dr. Haskell conceded that using weather reports from

various agencies to calibrate the crime scene to the weather stations was a common

practice. He agreed with Dr. Watson-Horzelski‘s use of October 2002 temperatures for

the ambient temperatures. Dr. Haskell maintained, however, that the flaw in her analysis

was in using the January 2003 temperatures to calibrate the temperatures in the storage

unit in October 2002, and argued that it would have been better to wait for the

anniversary date and make the calculations as of that date. Dr. Haskell agreed that if

there were already flies at the murder scene due to the presence of decaying food, it

-21-

would be easy for the flies to reach the victims‘ bodies and begin the egg-laying process.

When he was shown photographs of the insect activity in the containers that contained

Adam‘s body and Samantha‘s body, Dr. Haskell agreed that the pupae in the container

that held Adam‘s body would have been there longer than the larvae in the container that

held Samantha‘s body. Nevertheless, Dr. Haskell said, he could not definitively state

whether the victims were killed at different times because there were too many variables.

When asked his opinion of forensic anthropologist Dr. Arpad Vass, Dr. Haskell indicated

that he had respect for Dr. Vass and his work, but noted that Dr. Vass‘s work also

depended on temperatures, so if the temperature readings were flawed, then Dr. Vass‘s

results would be flawed.

The defendant also presented the testimony of Pamela Marsh, the resident

manager of the trailer park in North Georgia at which the victims rented a trailer on

September 23, 2002. Ms. Marsh testified that the defendant was with the victims when

they rented the trailer, and that the defendant paid their $190 deposit. On the evening of

October 4, 2002, Adam came to Ms. Marsh‘s trailer to make a telephone call. She

overheard him telling the person on the other end of the telephone line that he wanted to

―come home.‖ Later that same night, about 10:30 p.m., Adam came back to Ms. Marsh‘s

trailer, turned in his key, and told her he was leaving to take care of a sick grandmother in

Virginia. Adam sat with Ms. Marsh on her front porch until the defendant drove up, and

then Adam left with him. Ms. Marsh did not see Samantha leaving with Adam and the

defendant.

Brandon Chancy was the defendant‘s son-in-law. He owned the blue Jeep that was

parked at Marie Holmes‘ house when police officers came to search the house. Mr.

Chancy testified that the rear side window of the Jeep was broken and he used a blue tarp

to cover it when it rained. He identified a photograph of Betty Willis and described her

as an unusually strong woman. Mr. Chancy recalled one occasion when he saw Betty

pick up a container filled with tools, chains, and ropes that he—a car mechanic—had

been unable to lift.

Similarly, the defendant‘s cousin, Steve Holmes, testified regarding Betty‘s mental

illness, her violent nature, and her physical strength. Mr. Holmes‘ wife Brenda Holmes

testified that, within a few days after the defendant was arrested in October 2002, Betty

came to the Holmes‘ house and told her that ―Howard‖ had told her to get some things: a

television, bolt cutters, a dolly, and a saw. Betty did not say why she needed those

things; at the time, Ms. Holmes assumed they were needed to clean up her house, which

had been ransacked. When Ms. Holmes commented on scratches she observed on

Betty‘s arms, Betty alluded to the defendant‘s ―hot temper.‖ Betty also remarked that she

needed to move the refrigerator and that there were blood and maggots on the carpet.

Ms. Holmes did not give Betty anything except the television. Later, however, she

-22-

noticed that the two gasoline containers that had been sitting outside her garage door

were missing.

To rebut Ms. Holmes‘ testimony, the defendant recalled Investigator Todd Hull,

who had monitored the defendant‘s telephone calls from the jail to his mother.

Investigator Hull did not recall the defendant asking Betty to retrieve anything except a

television. He did not recall the defendant ever asking for tools.

The defendant also called criminal defense investigator Marc Caudel, who was

appointed by the trial court to assist the defendant in the investigation of the case. Mr.

Caudel testified that, when he interviewed Brenda Holmes, she did not tell him that Betty

Willis had told her that the defendant had directed her to get the listed items. Similarly,

Mr. Caudel claimed that Ms. Holmes never stated to him that Betty told her the defendant

had a bad temper. Ms. Holmes told Mr. Caudel that she was willing to testify for the

State but she did not want to come testify for the defendant. Accordingly, the defendant

had to subpoena her to testify.

After both parties rested their cases at the end of the guilt phase, the prosecutor

made several comments during its closing arguments that the defendant submits were

improper. Specifically, the State commented that, in listening to the recordings of

telephone conversations the defendant had with Wilda and his mother, the jury should

―know‖ the defendant committed the killings by the ―coldness in his voice.‖ The

prosecutor said of the defendant, ―his coldness does him in.‖ The defendant‘s objection

to the State‘s characterization was overruled.

After deliberation, the jury found the defendant guilty of: (Ct. 1) the first-degree

premeditated murder of Adam, (Ct. 2) the first-degree premeditated murder of Samantha,

and (Ct. 3) the felony murder of Samantha in perpetration of or attempt to perpetrate a

kidnapping.

C. Penalty Phase

The State announced that, as to the murder of Adam, it was relying on the

aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(13) (the

defendant knowingly mutilated the body of the victim after death) to support a sentence

of death. As to the murder of Samantha, the State was relying on the aggravating

circumstances in Tennessee Code Annotated section 39-13-204(i)(5), (6), & (7) (the

murder was especially heinous, atrocious, or cruel; the murder was committed to avoid

lawful arrest or prosecution of the defendant or another; the murder was knowingly

committed by the defendant while the defendant had a substantial role in committing the

first-degree murder of Adam; and the murder was knowingly committed by the defendant

-23-

while the defendant had a substantial role in committing the kidnapping of Samantha) to

support a sentence of death.

Both victims‘ mothers testified as to the impact the victims‘ deaths had on their

lives. Adam‘s mother, Teresa Chrismer, testified that Adam was a loving, affectionate,

kind, and artistically talented person. He entertained family and friends with impressions

of Elvis and Jim Carey. Ms. Chrismer testified that, when she learned that Adam was

dead, she was heartbroken and her ―world fell apart.‖ At the time of trial, she still had

days when she did not think she could go on without him. For a period after Adam‘s

death, she saw a psychiatrist and a counselor. Before Adam died, Ms. Chrismer was able

to work as a vendor at flea markets and cleaning houses. She also wrote poetry. After he

died, she was unable to do any of those things. Ms. Chrismer testified that Adam‘s

siblings remained ―very angry‖ over the circumstances of his death.

Samantha‘s mother, Patty Leming, testified that Samantha was a beautiful, happy

girl. Everyone loved her, and she had no enemies. She loved animals and talked of

becoming a veterinarian or a lawyer. Ms. Leming said that learning of her daughter‘s

death ―about killed [her].‖ At the time of trial, Ms. Leming continued to receive

psychiatric treatment and counseling to deal with schizophrenia and depression. Before

Samantha‘s death, she worked regularly, but had not been able to work since, due to an

inability to concentrate.

Over defense objections, the court admitted unredacted photographs of the

gunshot wounds to each of the victims‘ heads, a photograph of Adam‘s body as it was

found in the Rubbermaid container, and a photograph of Adam‘s severed head. After

these photographs were introduced into evidence, a recess was taken because one of the

female jurors became ill. When the proceedings resumed, the State rested.

The defendant made a motion to make an unsworn statement; this was denied.

The defendant then said that he would not submit any evidence in mitigation. At that

point, the trial court held a jury-out hearing in which the court advised the defendant of

his right to present witnesses and any other proof in mitigation. The defendant indicated

that he had consulted with elbow counsel on the issue and understood the risk in

foregoing the right to present evidence in mitigation. Elbow counsel advised the court

that he believed that the defendant was mentally competent to make that decision. The

defendant acknowledged that he understood he had the right to testify and was choosing

not to exercise that right. The trial court found that the defendant had made a knowing

and voluntary waiver of his right to present mitigating evidence. The defendant then

rested.

The State made a brief closing argument with no objection by the defendant. It

argued that, as to the murder of Adam, the defendant knowingly mutilated Adam‘s body

-24-

after death by cutting off Adam‘s head and his hands and by cutting through the body at

various points to fit it into the Rubbermaid container. As to the murder of Samantha, the

State noted that the evidence supported a finding that Samantha was murdered up to

thirty-six hours after Adam was murdered. During that time, the State stressed, Samantha

would necessarily have been subjected to mental torture. The State argued further that

Samantha was killed because she was a witness to Adam‘s murder. In addition, the State

contended that Samantha‘s murder was committed while the defendant was committing

the murder of Adam, and also in the perpetration of the kidnapping of Samantha, as

evidenced by her bound and gagged body. In the State‘s argument at the close of the

penalty phase, the prosecutor‘s comments included, ―make your own judgment as to his

emotions, or attitude as he says the words, ‗I blew their brains out[,]‘‖ and, ―[y]ou can

assess the lack of concern that he had as he talks to his mother on different jail calls in

that time period. . . . the state submits this defendant doesn‘t care[,]‖ and ―[n]o where[,]

we submit[,] did he show even the least bit of concern for these young people.‖

The defendant waived his right to make a closing argument.

As to the murder of Adam, the jury found aggravating circumstance (i)(13) (the

defendant knowingly mutilated the body of the victim after death), and that this

aggravating circumstance outweighed the mitigating circumstances beyond a reasonable

doubt; it imposed a sentence of death. As to the murder of Samantha, the jury found

aggravating circumstances (i)(5) (the murder was especially heinous, atrocious, or cruel),

(i)(6) (the murder was committed to avoid lawful arrest or prosecution of the defendant or

another), (i)(7) (the murder was knowingly committed by the defendant while the

defendant had a substantial role in committing the first-degree murder of Adam), and

(i)(7) the murder was knowingly committed by the defendant while the defendant had a

substantial role in committing the kidnapping of Samantha). The jury found that these

aggravating circumstances outweighed the mitigating circumstances beyond a reasonable

doubt, and it imposed a sentence of death for Samantha‘s murder as well.

D. Court of Criminal Appeals

On appeal, the Court of Criminal Appeals held in the defendant‘s favor on two

points. State v. Howard Hawk Willis, No. E2012-01313-CCA-R3-DD, 2015 WL

1207859, at *66 (Tenn. Crim. App. Mar. 13, 2015).

First, as to the defendant‘s incriminating statements to Wilda on January 1 and 3,

2003, it held that the Sixth Amendment right to counsel had attached at the time the

statements were made and that Wilda was acting as an agent of the State at the time, and

so concluded that the statements were obtained in violation of the defendant‘s Sixth

Amendment right to counsel. Id. Furthermore, because these statements led to the

discovery of the chainsaw on January 3, 2003, the court also held the trial court should

-25-

have suppressed any evidence related to the recovery of the chainsaw. Id. The Court of

Criminal Appeals noted, however, that the defendant‘s statements to Wilda professed his

innocence and asserted that someone else had committed the murders. Furthermore,

there was other evidence that he had used a chainsaw to sever the head and hands of

Adam. Finally, the court found that the evidence of guilt as a whole was overwhelming.

For those reasons, the court concluded that the admission into evidence of the defendant‘s

January 1 and 3, 2003 statements and the evidence relating to the recovery of the

chainsaw was harmless beyond a reasonable doubt. Id.

Second, the Court of Criminal Appeals held that the trial court had erroneously

permitted dual consideration of the (i)(7) aggravating circumstance in allowing the State

to argue, in instructing the jury as separate aggravating circumstances and in allowing the

jury to find as separate aggravating circumstances, that the defendant knowingly

committed Samantha‘s murder while committing her kidnapping, and also that he

knowingly committed Samantha‘s murder while committing the first-degree murder of

Adam. Id. at *95. It noted that the language in subsection (i)(7) does not provide for the

treatment of the single aggravating circumstance as multiple and separate aggravating

circumstances based upon the number of underlying felonies committed. Id., see State v.

Bell, 480 S.W.3d 486, 523 (Tenn. 2015). Nevertheless, the Court of Criminal Appeals

concluded that this error was also harmless beyond a reasonable doubt. Willis, 2015 WL

1207859, at *96. The appellate court noted that, in addition to the (i)(7) circumstance,

there were two valid remaining aggravating circumstances, and that the defendant had

waived presentation of mitigating evidence during the penalty phase. Id. Under all of

these circumstances, the Court of Criminal Appeals concluded, the sentence would have

been the same even if the jury had given no weight to the invalid factor. Id. at *95-96.

ANALYSIS

A. Admissibility of the Defendant’s Statements to Wilda Willis

The defendant filed several pretrial motions that sought suppression of the October

15, 2002, October 16, 2002, January 1, 2003, and January 3, 2003 incriminating

statements he made to his ex-wife, Wilda. These motions were denied by the trial court.

The Court of Criminal Appeals affirmed as to the October 15 and 16, 2002 statements

and reversed as to the January 1 and 3, 2003 statements, and held that the admission into

evidence of the chainsaw found by law enforcement on January 3, 2003 was error. Id. at

*61, 66.

On appeal, the defendant argues that the statements he made to Wilda on all of

these dates were procured by the State in violation of his right to remain silent under the

Fifth Amendment to the federal constitution and article I, section 9 of the Tennessee

Constitution; his right to counsel under the Fifth and Sixth Amendments to the federal

-26-

constitution and article I, section 9 of the Tennessee Constitution; and his right to due

process under the Fourteenth Amendment to the federal constitution and article I, section

8 of the Tennessee Constitution. He contends that the trial court erred by declining to

suppress them. In response, the State maintains that none of the statements made by the

defendant to Wilda violated the defendant‘s constitutional rights and urges this Court to

reverse the Court of Criminal Appeals‘ finding that the admission into evidence of the

January 1 and 3, 2003 statements and the chainsaw was error.

The standard of review applicable to suppression issues is well established. A

reviewing court may consider not only the evidence presented at the suppression hearing,

but also the evidence adduced at trial. State v. Henning, 975 S.W.2d 290, 297 (Tenn.

1998). When a trial court makes findings of fact after a hearing on a motion to suppress,

those findings are generally binding on an appellate court unless the evidence in the

record preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). On

appeal, the prevailing party ―is entitled to the strongest legitimate view of the evidence

adduced at the suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence.‖ Id. As the trier of fact at a suppression hearing, the

trial judge determines witness credibility, weighs the evidence, and resolves any conflicts

therein. Id. It is not this Court‘s job to second-guess these determinations. State v.

Sanders, 452 S.W.3d 300, 305-06 (Tenn. 2014) (citing State v. Echols, 382 S.W.3d 266,

277 (Tenn. 2012)). Objective evidence that does not involve credibility determinations,

however, may be reviewed de novo, without a presumption of correctness. State v. Clark,

452 S.W.3d 268, 282 (Tenn 2014) (citing State v. Northern, 262 S.W.3d 741, 748 n.3

(Tenn. 2008); State v. Payne, 149 S.W.3d 20, 25 (Tenn., 2004)).

We will first summarize the evidence adduced during the pre-trial hearings on the

motions to suppress, as well as any pertinent testimony from the trial; for the sake of

having a complete summary of the evidence pertinent to the motions to suppress, this

may repeat some of the evidence outlined above. After summarizing the evidence, we

will discuss the parties‘ arguments.

1. Evidence Regarding Motions to Suppress and Lower Court Rulings

During the time leading up to the victims‘ disappearance, the defendant was out on

bond for cocaine charges that were pending in the United States District Court for the

Eastern District of New York. See United States v. Willis, 118 F. App‘x 570, 571 (2d

Cir. 2004). In early September 2002, the defendant‘s stepfather, Sam Thomas,

disappeared. Mr. Thomas was Betty‘s husband and Wilda‘s uncle. During the course of

the investigation into Mr. Thomas‘s disappearance, law enforcement officers in Walker

County, Georgia, and Bradley County, Tennessee, learned that Mr. Thomas‘s credit cards

-27-

had been used. A video recording from a business at which one of the credit cards was

used showed the defendant and victims Adam and Samantha together, using the card to

make a purchase. This video caused law enforcement officers to suspect that all three

may have been involved in Mr. Thomas‘s disappearance. They had no reason at that point

to suspect that victims Adam and Samantha were either missing or dead, so they began

looking for the defendant and the victims to interview them and determine what they

knew about Mr. Thomas‘s disappearance.

Bradley County Sheriff‘s Office investigators made contact with the defendant,

who agreed to come to Bradley County for an interview on Monday, October 14, 2002.

Prior to that date, the Bradley County investigators heard that the defendant was trying to

obtain false identification, possibly in order to flee the country. To prevent the defendant

from fleeing, they contacted the prosecuting U.S. Attorney in New York to inform him of

the disappearance of Mr. Thomas and the defendant‘s possible involvement. Bradley

County investigators sent the U.S. Attorney copies of Mr. Thomas‘s credit card statement

and the video recording showing the defendant and the victims using Mr. Thomas‘s card.

The federal authorities issued a warrant revoking the defendant‘s bond and faxed it to

Bradley County to accomplish service of the warrant on the defendant.

Efforts to locate federal authorities to serve the warrant failed. Consequently, on

October 11, 2002, Bradley County investigators, assisted by Johnson City Police

Department investigators, arrested the defendant on the federal warrant at the Johnson

City, Tennessee home of his Aunt Marie. It is not clear in the record whether the

defendant was advised of his Miranda rights at this juncture, but he was not questioned,

and no law enforcement officer who was present recalled the defendant asking for a

lawyer. A court date was set for October 15, 2002, in the federal court at Greeneville,

Tennessee, and the defendant was transported to the Washington County Sheriff‘s Office

detention center pending the hearing.

That same day, fisherman Luther Whitson found a severed human head floating in

Boone Lake, in Washington County, Tennessee. By this time, investigators trying to

locate Adam and Samantha to talk to them about Mr. Thomas had spoken to the victims‘

mothers. The mothers told investigators that neither victim had been seen or heard from

since October 4, 2002. Investigators began to suspect foul play in the disappearance of

the victims. The next day, two severed human hands were found in the same lake.

Shortly after the defendant‘s arrest, the Bradley County Sheriff‘s Office, the

Washington County Sheriff‘s Office, and the Johnson City Police Department began

monitoring the telephone calls made at the jail by the defendant to Betty, Aunt Marie, and

others. Some of the conversations between the defendant and Betty concerned hiring an

attorney. The only charge pending against the defendant at that point was the federal

revocation warrant, so law enforcement officers assumed that the reason the defendant

-28-

sought to hire an attorney was to handle the federal matter. During the conversations,

two different attorneys were mentioned—Richard Pectol and Roger Day—but Betty had

no success in hiring either one.

In the defendant‘s conversations with Betty, there was some reference to the rental

of a storage unit. This got the attention of the investigating officers, who began

contacting self-storage facilities in the area. Ultimately, they discovered that, on October

10, 2002, Betty had rented a unit at the 24-Hour Self Storage in her name. On Monday,

October 14, 2002, investigators obtained a search warrant for the unit. When they

searched it, they found the bodies of both victims inside, in Rubbermaid containers. The

head and hands were missing from Adam‘s body.

The defendant testified at the hearing on his motion to suppress. Prior to October

11, 2002, the defendant said, he was aware of an investigation into the disappearance of

his stepfather, Mr. Thomas. The defendant was interviewed at least twice at the Bradley

County Sheriff‘s Office. When he was arrested on October 11th at the home of his Aunt

Marie, he was searched, handcuffed, and made to sit on a sidewalk. Arresting officers

asked him whether he knew victims Adam and Samantha and whether he knew their

location. The defendant identified photos of the victims but told officers that he did not

know where they were. The defendant said that, when the officer began asking more

questions, he asked for an attorney. The questioning then ceased and the officers told

him that he would have an opportunity to get an attorney once he arrived at the jail.

The defendant testified that, once he arrived at the jail, he was booked and asked

general questions by the officers. Once again he asked for an attorney; the defendant was

told he could make a telephone call from the pod. The defendant said that he was not

given the opportunity to make a telephone call until the following day, which was a

Saturday. He testified that he tried to call three different lawyers that day but did not

reach any of them. The defendant called other individuals on October 14, 2002, and he

claimed in his testimony that the purpose of those calls was to find counsel. On October

15, 2002, the defendant appeared in federal court and was appointed counsel on the

federal charge.

The State offered rebuttal evidence consisting of telephone records from the

detention center for October 11, 12 and 13, 2002. Those records reflected that only two

calls were made to Attorney Pectol, both from the booking area. No calls were made to

Attorney Day on those dates from the area in which the defendant was housed.

After his October 11, 2002, arrest, the defendant contacted Wilda and asked her to

come to his October 15, 2002, federal court hearing in Greeneville, Tennessee. Prior to

this October 11 contact from the defendant, Wilda had become very interested in the

disappearance of her uncle, Mr. Thomas; her car had flyers on the windows with a photo

-29-

of her uncle as a ―missing person,‖ and she had been working with the Bradley County

Sheriff‘s Office in hopes of discovering what happened to him. After the defendant

asked Wilda to come to his Greeneville federal court appearance, investigators asked her

to instead travel to Johnson City, Tennessee, to speak with Johnson City Police

Department officers. Wilda did so, and when she arrived in Johnson City, law

enforcement officers informed her that a severed human head and severed human hands

had been found in ―a river.‖ They did not identify to whom the severed head and hands

belonged.

Wilda told the investigators that she wanted to see the defendant. They agreed and

had her follow them to the Washington County Detention Facility for that purpose. Once

Wilda arrived in Washington County, detectives explained to her that the defendant faced

a bond revocation on his federal charges. They discussed with her the disappearance of

Mr. Thomas and the victims and their concerns that Betty and Aunt Marie might be

involved as well. The officers asked Wilda to visit Betty and Aunt Marie and to wear a

―wire‖ recording device for the visit; she agreed to do so.

Wilda also insisted on seeing the defendant afterward but agreed to tell the officers

anything she learned from him. Drug task officers outfitted Wilda with a recording

device, which she wore first to the visit with Betty and Aunt Marie, and then to the

detention center for her visit with the defendant.

The Washington County Sheriff‘s Office made arrangements for Wilda to meet

with the defendant on October 15, 2002. In the meeting area, Plexiglas separated Wilda

from the defendant, and they had to communicate through a small hole in the Plexiglas.

This meeting lasted only ten to fifteen minutes because they had such difficulty

communicating through the Plexiglas barrier. The defendant told Wilda that, if she

would return the following day with a tape recorder and notepad, he would answer all of

her questions. She indicated that it might be difficult for her to get back in but promised

to try. Wilda said that the defendant suggested that she hire a ―fifty-dollar lawyer‖ to

accompany her to the jail, tell jail officials that she was a paralegal, and then once they

were in the visitation room, he would tell the attorney to leave the room so that he could

talk to her. Wilda interpreted the defendant‘s suggestion to bring an attorney as a ruse to

enable her to get back in to see him and meet face-to-face, so that he could talk to her

alone. The defendant testified that when he told Wilda on October 15, 2002, to return the

following day with counsel, it was because he truly wanted to talk to an attorney. He

denied that it was a ruse to get Wilda back into the jail to see him.

The Washington County investigators made arrangements for Wilda to have a

contact visit in a private room with the defendant on the evening of October 16, 2002.

Prior to the visit, investigators hid a transmitter inside a trash can in the visitation room

so they could listen to their conversation. Wilda came without an attorney, but she

-30-

brought a tape recorder and notepad as the defendant had requested. By this time, Wilda

had learned that the bodies of Adam and Samantha had been found in a storage unit, and

she informed the defendant of that fact. In the course of responding to this information,

the defendant told Wilda that he ―blew [Adam‘s and Samantha‘s] brains out.‖ He said

that the bodies of Adam and Samantha were in a storage unit, except that he had cut off

Adam‘s head and hands and thrown them in a river. The defendant also gave Wilda two

possible locations she might find the body of Mr. Thomas, and suggested that she bring a

certain Walker County, Georgia detective with her for the search.

Immediately after Wilda left the visitation room but while the defendant was still

there, the Washington County and drug task force officers entered the room. The officers

planned to interview the defendant, so they began advising him of his Miranda rights. As

they did so, the defendant requested counsel, so the interview was immediately

terminated.

After that visit, the Washington County officers, Johnson City officers and the

district attorney general‘s office discouraged Wilda from continuing to stay in contact

with the defendant. They told her that she needed to quit accepting his telephone calls.

A few days later, attorney Jim Bowman contacted law enforcement and told them

that he was representing the defendant and that officers could not talk to the defendant

any further. Mr. Bowman also spoke with Assistant District Attorney General Janet

Hardin and told her that he was representing the defendant and did not want anyone to

talk to him. General Hardin transmitted this information to the prosecutor assigned to the

defendant‘s case.

The defendant testified that, after his October 16, 2002 visit with Wilda, he was

advised of his Miranda rights and he asked law enforcement officers for an attorney.

After that, he was taken to the booking area, stripped of his clothes, given a paper gown

to wear, and placed in a concrete cell with no bunk; the defendant said that he remained

there until the following afternoon. While in that cell, the defendant claimed, he was told

that Wilda wanted to talk to him, and he was permitted to call her from a telephone on a

desk in an office. He did not recognize the number he was given, but nevertheless Wilda

answered. She told the defendant that she was at a fire station on Lookout Mountain.14

The defendant said that, after he spoke to Wilda, he was permitted to go to another cell to

call his daughter. He told his daughter to call the U.S. Attorney and tell the attorney

about his alleged maltreatment at the hands of the Washington County Sheriff‘s

14

Wilda was on Lookout Mountain searching for the body of her uncle, Mr. Thomas. Wilda said

that the defendant asked her to bring a deputy with her to look for the body and that she told him in the

telephone call that the deputy was with her for the search.

-31-

employees. He also surreptitiously called an attorney in New York and told that attorney

the same information.

Eventually, the defendant reached attorney Jim Bowman, who agreed to represent

him for no charge until he was indicted. In her testimony, Wilda said that, after October

18, 2002, she was aware that the defendant was represented by counsel and that his

counsel had advised him not to speak to law enforcement authorities.

On October 23, 2002, the defendant was indicted for the murders of Adam and

Samantha. The defendant testified that when he was served with the indictments in these

cases, he assumed that Mr. Bowman‘s representation had ended. He asked the serving

officer when he could get counsel and who would be his attorney.

After his indictment for the murders of Adam and Samantha, the defendant

continued to call Wilda frequently. Despite the admonition from law enforcement

officials that she cease taking the defendant‘s calls, Wilda continued to talk to him.

Wilda could not call the defendant at the jail; she could only accept his calls. She did not

tell the defendant that she was cooperating with law enforcement authorities. At the

beginning of each of the defendant‘s telephone calls from the jail, a recorded message

warned him that the call was being monitored and might be recorded.

At some point prior to the defendant‘s indictment, the Bradley County Sheriff‘s

Office provided Wilda with a tape recorder for her phone. She used it to record her

conversations with the defendant when he called her, until she returned the recorder

sometime in October.15 Wilda shared the recordings of the telephone calls from the

defendant with both the Washington County Sheriff‘s Office and the Bradley County

Sheriff‘s Office. Wilda testified that, after the defendant initially told her in their October

16, 2002 in-person meeting that he ―blew [the victims‘] brains out,‖ she had another

contact meeting with the defendant in which he asked her questions about the bodies of

Adam and Samantha and still acknowledged to her that he killed Adam and cut up his

body.

The defendant testified that, on October 29, 2002, before he was arraigned and

appointed counsel on the murder charges, he was transferred to New York on the pending

federal drug charges. While in the New York detention facility, the Defendant continued

to frequently call Wilda from the jail. As it was with the Tennessee detention facility,

Wilda could not call the defendant; she only accepted his telephone calls. Again, at the

beginning of each of the defendant‘s telephone calls from the New York detention

15

Wilda testified at one point that after she returned the tape recorder provided by Bradley

County, she put her own tape recorder on her phone. At another point in her testimony, she said that she

returned the recorder provided by Bradley County in October 2002 and that ―the‖ recorder was placed

back on her phone in December 2002.

-32-

facility, a recorded message advised him that the call was being monitored and might be

recorded.

After the defendant‘s transfer to New York, Wilda said, he began changing his

stories on what happened to Adam and Samantha. At one point, he told her that his

mother had killed them. Later he told her that Samantha‘s brother had killed them. At

one point, Wilda testified, the defendant claimed that ―the Mafia killed them.‖

In late December 2002, while the defendant was still in the New York detention

facility, he asked Wilda to come to New York to see him. She told him she could not

because of her work. The defendant‘s Aunt Marie offered to pay Wilda‘s way to New

York to see the defendant. The defendant and Aunt Marie both insisted that Wilda go to

New York. They assured Wilda that, if she went to New York to see the defendant, he

would tell her ―the rest of the truth‖ and she would get ―all the answers [she] needed‖

regarding the murders of her uncle and Adam and Samantha.

In considering whether to accede to the defendant‘s request that she come to New

York to see him, Wilda consulted with several of the Tennessee law enforcement officers

and district attorneys from Washington County and Bradley County about the request.

They all told her not to go to New York to see the defendant.16

Despite the discouragement from law enforcement, Wilda traveled to New York to

visit the defendant. On January 1, 2003, Wilda had a contact visit with the defendant in

the New York detention facility. The visit took place in an open room where other

inmates were visiting with their families. Wilda did not bring a recording device and the

conversation was not recorded.

During Wilda‘s January 1 meeting with the defendant, he insisted that someone

other than him had killed Adam and Samantha, and outlined things that he needed Wilda

to do for him when she returned home to Tennessee. The defendant gave Wilda the

precise location where she could find the chainsaw used in the murders; he explained to

her that his mother Betty had thrown the chainsaw out of the car window and had told

him where it was located. The defendant asked Wilda to bring her two teenage children

with her to retrieve the chainsaw. Once she found the chainsaw, the defendant asked

Wilda to clean it and make sure there were no fingerprints on it. After that, she was to

break into the home of Samantha‘s brother, Daniel Foster, steal clothing out of his home,

wrap the chainsaw in the stolen clothing, put the wrapped chainsaw under the brother‘s

trailer, and then have someone call in a tip about the chainsaw to law enforcement.

16

Asked who told her not to go to New York to see the defendant, Wilda testified, ―Steve Finney,

Joe Crumley, Todd Hull, Kenny Phillips, Detective Efaw. Anybody that knew I was going told me not to

go.‖

-33-

While Wilda was still in New York, she spoke to detectives in both the

Washington County Sheriff‘s Office and the Bradley County Sheriff‘s Office. When she

returned from New York, Wilda shared with the Washington County and Bradley County

investigators what the defendant had told her. Specifically, she told them that the

defendant had given her possible locations where certain evidence—the chainsaw and a

gun—could be located.

On January 3, 2003, a Bradley County officer and other officers accompanied

Wilda on the search that the defendant had asked her to conduct. While they were on the

search, the defendant called Wilda multiple times from the New York detention center,

impatient for her to complete the tasks he had given her. The defendant questioned

Wilda about whether she had brought with her the materials he had discussed to clean the

chainsaw. The defendant asked Wilda about other items related to the murders that he

wanted her to retrieve, items in other locations. The defendant reiterated to Wilda in

these conversations that she was to take all of the items to the home of Samantha‘s

brother, Daniel Foster. Wilda recorded the defendant‘s calls to her and did not tell the

defendant that law enforcement officers were with her on the search. Following the

defendant‘s directions, Wilda and the officers found the chainsaw in Bradley County and

the other items in Washington County.

The defendant agreed that, at some point, he heard that Wilda was cooperating

with the police and turning over recordings of their conversations to them. He continued

to talk to her because he trusted her and did not believe she would do such a thing.

Furthermore, because he had requested counsel, he was operating under the belief that

any statements he made to Wilda were protected. The defendant admitted telling Wilda

at the October 16, 2002, meeting that he ―blew [the victims‘] brains out.‖ He also

admitted that when he made telephone calls from jail using inmate telephones, either in

Tennessee or in New York, he was informed at the beginning of every call that the call

was subject to monitoring and recording.

At the conclusion of the two-day suppression hearing, the trial court made oral

findings of fact and conclusions of law. Overall, the trial court found that Wilda was a

credible witness and that the defendant was not a credible witness.

Regarding the defendant‘s statements made to Wilda on October 15 and 16, 2002,

the trial court denied the motion to suppress. It found that, on both of these occasions,

the defendant initiated the contact with Wilda and spoke freely with her because of their

past relationship. The court accredited Wilda‘s testimony that the defendant‘s request for

her to return with a ―fifty-dollar lawyer‖ was not a genuine request for counsel, but was

instead a ruse to enable him to meet with Wilda face-to-face. It found that the

defendant‘s request on October 15 for Wilda to return the next day with a tape recorder

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and a notepad was evidence that his statements to her on the 16th were free and

voluntary. In both conversations, the trial court found, there was no compulsion, pressure,

or police-dominated atmosphere. Under those circumstances, it found no Fifth

Amendment violation.

As to the defendant‘s argument that the October 15 and 16, 2002 statements to

Wilda violated his Sixth Amendment right to counsel, the trial court pointed out that the

right to counsel is ―offense specific.‖ It noted that, at the time of these statements to

Wilda, the defendant had been charged with only the federal drug offense, and had not

been formally charged with the murders of the victims, which were still under

investigation. Consequently, the trial court held that the admission into evidence of the

defendant‘s October 15 and 16, 2002 statements did not violate his Sixth Amendment

right to counsel.

As to the defendant‘s statements to Wilda in their January 1, 2003 meeting in New

York and the defendant‘s January 3, 2003 telephone calls to Wilda, the trial court noted

that, immediately following the defendant‘s October 16, 2002 conversation with Wilda,

the defendant was approached by law enforcement, received his Miranda rights, and

invoked his right to an attorney. It held that, after the defendant was indicted on October

23, 2002, for the murders of the victims, he had a Sixth Amendment right to counsel as to

those charges. Nevertheless, it found no Sixth Amendment violation regarding the

defendant‘s January 1 and 3, 2003 statements to Wilda, based on the following findings

of fact:

It appears to the court that Wilda Willis in this case is nobody‘s agent. She

wants to find out what has happened to Sam Thomas. She wants to find his

body. Sam Thomas is her uncle. She‘s driving around in a car with

pictures of Sam Thomas on the side of the vehicle˗˗˗have you seen this

man? And later in this case the proof is very clear that˗˗˗that she‘s told. . . .

All the phone calls are initiated by him, by the defendant, Howard Hawk

Willis. Don‘t . . . take anymore phone calls from him. She keeps taking

phone calls. She‘s told, don‘t go to New York City. She goes to New York

City. Wilda Willis in this case is nobody‘s agent. She does what she wants

to do on her own time, and . . . is driven for her own purposes. . . . [T]he

court finds that she‘s . . . not an agent of law enforcement. . . . And these

phone calls. . .˗˗˗first of all, they‘re completely initiated by Howard Hawk

Willis. He calls her. . . . And both in the Washington County Detention

Center, and . . . in the New York Detention Center he knows, every call

he‘s told by this recording that it‘s subject to monitoring and recording

when the call is placed. . . . [T]here is no expectation of privacy at a jail

house telephone, particularly, not under these circumstances. . . . [T]here‘s

nothing surreptitious about this. The calls were voluntary, initiated by Mr.

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Willis. There‘s no trickery. . . . Wilda Willis was a private party, no

government action in any . . . sense. She was cooperating, but . . . she was

operating on her own.

Thus, the trial court noted that, in going to New York and continuing to accept the

defendant‘s calls, Wilda was acting against the advice of the law enforcement agents who

were investigating the victims‘ murders. It held that, at the time of the defendant‘s

January 1 and 3, 2003 statements to Wilda, she was cooperating with law enforcement

but was not an agent of the State; rather, Wilda was acting on her own for her own

purposes, namely, solving the murder of her uncle and finding his body. The trial court

found that the calls were voluntary in that the defendant initiated all of the calls to Wilda,

and the calls were not induced by trickery. It also found that the defendant knew that his

telephone calls to Wilda from the New York detention center were subject to being

monitored and recorded. Under these circumstances, the trial court held that there was no

Sixth Amendment violation.

For these reasons, the trial court denied the defendant‘s motions to suppress the

October 15 and 16, 2002 statements to Wilda, as well as the January 1 and 3, 2003

statements to Wilda.

Following the trial court‘s initial ruling denying his motion to suppress, the

defendant filed three more motions to suppress those statements—one on May 31, 2007,

(through new counsel), one on November 13, 2009, (pro se), and one on May 5, 2010

(pro se). The trial court summarily denied the first two motions on the basis that that

issue had been previously determined and did not merit re-litigation. Thereafter, Judge

Lynn Brown recused himself, and this Court appointed Senior Judge Jon Kerry

Blackwood to try the case. After the last motion to suppress was filed, Judge Blackwood

allowed the defendant to introduce additional testimony but concluded that he failed to

present any new evidence or offer any new legal authority that warranted a different

result.

On appeal, the Court of Criminal Appeals affirmed the trial court with respect to

admission of the October 15 and 16, 2002 statements. Willis, 2015 WL 1207859, at *61-

62. However, it reversed the trial court with respect to the January 1 and 3, 2003

statements; it ruled that they were taken in violation of the defendant‘s right to counsel

under the Sixth Amendment to the United States Constitution and Tennessee Constitution

article I, section 9, and should have been suppressed. Id. at *66. It held that, at the time

of the defendant‘s January 1 and 3, 2003, statements, Wilda was acting as a government

agent. Id. at *65. The intermediate appellate court noted that Wilda had been assisting

law enforcement prior to the defendant‘s indictment and continued to do so after his

indictment. Id. at *64-65. It found that, although officers from the Johnson City Police

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Department and the Washington County Sheriff‘s Office discouraged Wilda from

continuing to communicate with the defendant, ―officers from Bradley County asked

Wilda to record [the] conversations‖ and furnished her with a tape recorder to do so. Id.

at *65. The court acknowledged that Wilda ―decided to use her own tape recorder to

record the conversations‖ but noted that she provided the tapes to law enforcement. Id.

It also acknowledged that the officers advised Wilda not to go to New York to meet with

the defendant. Nevertheless, it observed that Wilda maintained contact with law

enforcement, met with them shortly after she returned from New York, and spoke with

the defendant in the presence of officers while searching for the chainsaw. Id. It also

noted that the defendant was in custody at the time of the statements. Id. Based on these

facts, the Court of Criminal Appeals held that Wilda was acting as a government agent at

the time of the January 1 and 3, 2003, statements, and that Wilda deliberately elicited the

incriminating statements from the defendant. Id. at *65-66. As a result, it held that the

discovery of the chainsaw was fruit of the unlawful statements and should also have been

suppressed. Id. at *66. Nevertheless, the intermediate appellate court ultimately found

that the admission of this evidence was harmless beyond a reasonable doubt. Id.

1. Fifth Amendment/Article I, Section 9 Self-Incrimination Claim

The defendant asserts that the trial court erred in admitting into evidence the

statements he made to Wilda on October 15 and 16, 2002, and on January 1 and 3, 2003,

because the State violated his right against self-incrimination. He cites several

circumstances that support this assertion: (1) the incriminating statements were made to

Wilda while he was in custody; (2) after his arrest on the federal charges, no one read him

his Miranda rights; (3) he (allegedly) invoked his right to counsel; (4) his efforts to

obtain counsel were (allegedly) thwarted by law enforcement; and (5) Wilda was at all

times acting as an agent of the State. The State responds that this is a ―misplaced trust‖

case, so the defendant‘s self-incrimination claims have no merit.

The Fifth Amendment to the United States Constitution, applicable to the states

through the Fourteenth Amendment, states: ―No person . . . shall be compelled in any

criminal case to be a witness against himself.‖ (Emphasis added). Similarly, the

Tennessee Constitution states: ―That in all criminal prosecutions, the accused . . . shall

not be compelled to give evidence against himself.‖ Tenn. Const. art. 1, § 9. (Emphasis

added).

Whether a confession is ―compelled‖ or involuntary is a question of fact. Sanders,

452 S.W.3d at 305 (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v.

Morris, 24 S.W.3d 788, 805 (Tenn. 2000); State v. Smith, 933 S.W.2d 450, 455 (Tenn.

1996); Self v. State, 65 Tenn. 244, 253 (1873)); Clark, 452 S.W.3d at 282. The State has

the burden of proving the voluntariness of a confession by a preponderance of the

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evidence. Sanders, 452 S.W.3d at 305 (citing State v. Stamper, 863 S.W.2d 404, 405

(Tenn. 1993)); State v. Clark, 452 S.W.3d 268, 282 (Tenn. 2014). (citing Sanders, 452

S.W.3d at 305).

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court

addressed the compulsion inherent in ―custodial interrogations.‖ It observed that the

atmosphere surrounding custodial interrogations can generate ―inherently compelling

pressures which work to undermine the individual‘s will to resist and to compel him to

speak where he would not otherwise do so freely.‖ Id. at 467. The Court held that, to

ensure preservation of the Fifth Amendment privilege against self-incrimination during

―incommunicado interrogation of individuals in a police-dominated atmosphere,‖ id. at

445, the prosecution may not use statements that stem from the custodial interrogation of

a defendant unless it first demonstrates that (1) the accused was informed of his Fifth

Amendment rights to remain silent and to the presence of either a retained or appointed

attorney and that any statement might be used as evidence against him; and (2) the

accused voluntarily, knowingly, and intelligently waived those Fifth Amendment rights.

Id. at 444-45. The so-called ―Miranda warning‖ rule is strictly enforced, ―but only in

those types of situations in which the concerns that powered the decision are implicated.‖

Berkemer v. McCarty, 468 U.S. 420, 437 (1984); see also State v. Goss, 995 S.W.2d 617,

629 (Tenn. Crim. App. 1998)

In Perkins, the Court addressed a situation in which an inmate, incarcerated on

other charges, made admissions concerning an unsolved murder to an undercover agent

posing as a fellow inmate. Although Mr. Perkins was ―in custody‖ in the sense that he

was incarcerated at the time of the conversations, the Court clarified that conversations

between an incarcerated suspect and an undercover agent whom the suspect believes to

be a fellow inmate do not implicate Miranda because the coercive atmosphere that was

the underlying premise in Miranda is lacking. Id. at 296. The Court ―reject[ed] the

argument that Miranda warnings are required whenever a suspect is in custody in a

technical sense and converses with someone who happens to be a government agent.‖ Id.

at 297. It explained:

Miranda forbids coercion, not mere strategic deception by taking advantage

of a suspect‘s misplaced trust in one he supposes to be a fellow prisoner. As

we recognized in Miranda: ―[C]onfessions remain a proper element in law

enforcement. Any statement given freely and voluntarily without any

compelling influences is, of course, admissible in evidence.‖ . . . Ploys to

mislead a suspect or lull him into a false sense of security that do not rise to

the level of compulsion or coercion to speak are not within Miranda‘s

concerns.

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Id. at 297-98 (alternation in original) (internal citations omitted). The Perkins Court

further concluded that this tactic did not violate the Self-Incrimination Clause of the Fifth

Amendment. Id. at 298.

Two recent decisions by this Court affirm the principle that the surreptitious

recording of a conversation between a suspect and a private citizen who is cooperating

with police will not trigger the self-incrimination provisions of either the Fifth

Amendment to the United States Constitution or article I, section 9 of the Tennessee

Constitution. Clark and Sanders. As discussed below, for both decisions, the underlying

rationale is that, under such circumstances, the defendant‘s statements are not

―compelled.‖

In Clark, the defendant‘s six-year-old daughter began to exhibit some

inappropriate behavior. 452 S.W.3d at 275. This prompted the defendant‘s wife to talk

with their younger daughter, four-year-old ―K.C.,‖ about inappropriate touching by

adults. Id. at 275-76. In the course of the conversation, K.C. told her mother that the

defendant sometimes touched her groin area at night while the mother was in bed. Id. at

276. Upon hearing this revelation, the defendant‘s wife left the home with the daughters

and contacted law enforcement authorities about K.C.‘s allegations. Id.

After meeting with a detective, the wife in Clark agreed to cooperate with the

investigation by making recorded telephone calls to the defendant. The investigating

detective wrote notes for the wife, suggesting things she could say to the defendant to

elicit a confession. Id. In the initial conversations between the defendant and his wife,

the defendant denied any inappropriate touching. Id. The wife responded by insisting she

had to hear the truth before she and the daughters would return home. Id. Eventually, the

defendant admitted to his wife that he had ―touched‖ both of his daughters but claimed he

could not remember the details. Id.

The defendant in Clark suspected that his conversation with his wife was being

recorded, so he insisted they meet face-to-face to talk further. With the wife‘s express

consent, a recording device was installed inside her automobile. Id. at 277. The wife

then went to a prearranged location, and the defendant got into the wife‘s car. As police

officers monitored, the defendant divulged to his wife details of multiple occasions on

which he had touched his daughters inappropriately, and he admitted to her that he had

told the girls to keep his conduct a secret. Id. Police arrested him immediately after he

exited the car. Id.

The defendant in Clark later retracted the statements made to his wife and made

no further incriminating statements. After a hearing, the trial court denied the defendant‘s

motion to suppress the recorded statements. Thereafter, the defendant was convicted on

multiple counts of aggravated sexual battery and rape of a child. Id. at 278.

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On appeal to this Court, Mr. Clark argued that the trial court erred in refusing to

suppress the recordings of his conversations with his wife. Id. at 279. He asserted that

admission into evidence of the surreptitiously-recorded statements violated his right

against compulsory self-incrimination and his right to due process of law, because his

wife was acting as an agent of the State when she confronted him and pressured him into

confessing against his will by using threats, promises, and emotional appeals. Id. at 281-

282. This Court disagreed. Id. at 283-84. Observing that the exclusionary rule is

designed to deter police misconduct, we noted that, ―[w]hen a private citizen obtains

admissions from a suspect while cooperating with the police, there is no police

misconduct to be deterred.‖ Id. at 282 (citing Sanders, 452 S.W.3d at 311). In the

context of the Fifth Amendment, the Court stated, the key issue is whether the statement

in question is coerced. Id. at 283. ―[W]hen a victim (or victim‘s relative or friend) goes

to the police and then, with police assistance, elicits a confession from a suspect, the

suspect has simply misplaced his trust in a confidant.‖ Id. (citing United States v. White,

401 U.S. 745, 749 (1971); Hoffa v. United States, 385 U.S. 293[, 301] (1966); Lopez v.

United States, 373 U.S. 427, 443–45 (1963); State v. Branam, 855 S.W.2d 563, 568

(Tenn. 1993); State v. Pate, No. M2009–02321–CCA–R3–CD, 2011 WL 6935329, at

*10 (Tenn. Crim. App. Nov. 22, 2011), perm. app. denied (Tenn. Apr. 11, 2012);

Clariday v. State, 552 S.W.2d 759, 769 (Tenn. Crim. App. 1976)). In cases involving

misplaced trust, ―voluntary statements made to an informant do not warrant constitutional

protection.‖ Id. at 283 (citing Sanders, 452 S.W.3d at 315). Voluntariness hinges on

whether the statements made were ―the product of a rational intellect and a free will,‖ and

the pivotal question is whether the suspect‘s will was overborne so as to render the

statement a product of coercion. Id. To analyze voluntariness, the court examines the

totality of the circumstances surrounding the confession, including ―the characteristics of

the accused and the details of the interrogation.‖ Id.

In Clark, the Court noted that the defendant had arranged the meeting with his

wife, had time between the phone calls and the meeting to consider what he should do

and say when he met her, entered her car of his own volition, and after doing so almost

immediately launched into a detailed account of his abuse of his daughters. Id. at 284.

There was no confinement, and the wife made no threats beyond the personal and legal

consequences to be expected for sexually assaulting one‘s own children. Id. Upon his

arrest, the defendant had remained silent in the face of accusations, thus exhibiting the

ability to resist the pressures inherent in an interrogation. Id. Under the totality of the

circumstances, the Court in Clark concluded that Mr. Clark‘s recorded statements were

―the product of a rational intellect and a free will,‖ in other words, voluntary, and did not

implicate his right against compulsory self-incrimination. Id.

Sanders involved similar circumstances. 452 S.W.3d 300 (Tenn. 2014). Mr.

Sanders lived with his girlfriend and her young daughter. Id. at 303. At some point, Mr.

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Sanders began touching the daughter inappropriately; over time, his acts progressed to

sexual intercourse. The victim finally reported the sexual abuse to a school counselor

who, in turn, contacted law enforcement authorities. Id.

Mr. Sanders‘ girlfriend was reluctant to believe the abuse allegations, so she

decided to meet with the defendant to see if he would admit to them. At the suggestion

of the investigating detective, the girlfriend agreed to wear a concealed microphone

during her meeting with the defendant. The girlfriend met with the defendant while law

enforcement officers listened to, recorded, and visually monitored the conversation from

an unmarked police car parked nearby. Id.

During the conversation, the girlfriend told Mr. Sanders, ―I already know what

happened; I need to hear it from you.‖ She led the defendant in Sanders to believe that, if

he were truthful with her, she would keep the investigation from going further by not

taking the victim to an upcoming Department of Children‘s Services interview. Id. at

303-04.

When Mr. Sanders initially denied the allegations, the girlfriend responded by

threatening him with seeing his face on the television news if he were not honest with

her. Id. at 304. Gradually, the defendant began to admit to inappropriate conduct, first

characterizing it as inadvertent contact with the girlfriend‘s daughter while ―wrestling.‖

Eventually he admitted inappropriate touching and kissing, coupled with disclaimers that

the daughter initiated the contacts and purportedly asked him for sexual intercourse. The

defendant closed by asking the girlfriend for mercy and thanking her for talking to him.

Id.

A month later, the girlfriend in Sanders made a monitored and recorded telephone

call to Mr. Sanders, but he made no admissions during that conversation. The police then

contacted him and asked to meet with him. During that meeting, Mr. Sanders admitted to

nothing and declined to give a DNA sample. Thereafter, he was indicted on charges of

aggravated sexual battery and rape of a child.

Mr. Sanders filed a motion to suppress the recorded statements to the girlfriend.

He argued that his girlfriend was acting as an agent of the State and had coerced him into

making a false confession. He asserted that admission of the statements into evidence

would violate his right to due process and his privilege against self-incrimination. The

trial court denied the motion to suppress, the statements were admitted into evidence, and

the jury convicted the defendant of multiple counts of aggravated sexual battery and rape

of a child. Id. at 304-05.

Mr. Sanders made the same arguments on appeal to this Court. Id. at 305. The

Sanders Court noted that the exclusionary rule is a prophylactic measure designed to

-41-

deter police misconduct: ―[E]vidence gathered by private persons is generally not subject

to the exclusionary rule because with private action there is no police misconduct to be

deterred.‖ 17 Id. at 311 (citing United States v. Leon, 468 U.S. 897, 906-10 (1984);

United States v. Janis, 428 U.S. 433, 447-54 (1976)). The Court observed, ―In the early

stages of an investigation, it is constitutionally acceptable for the police to cooperate with

friends or relatives of the victim or the suspect to see if these individuals can goad the

suspect into confessing.‖ Id. at 316 (citing United States v. Henry, 447 U.S. 264, 272

(1980)). The Sanders Court cited a Court of Criminal Appeals case that involved a rape

victim who agreed to make a police-controlled phone call to the defendant, and noted

that, in a case of misplaced trust, ―neither the Fourth, Fifth, or Sixth Amendment protects

a suspect who voluntarily offers information to a confidant.‖ Sanders, 452 S.W.3d at

314-15 (citing State v. Bacon, No. 03C01-9608-CR-00308, 1998 WL 6925, at *12 (Tenn.

Crim. App. Jan. 8, 1998). ―In cases that involve suspects making confessions to friends,

relatives, and other associates, the law need not be concerned with whether that confidant

could properly be labeled as a private citizen or an agent of the State.‖ Id. at 311. Under

the ―misplaced trust‖ doctrine, Sanders explained, ―courts need not expend their energies

to determine the point at which a suspect‘s confidant becomes a government agent‖

because ―it makes no constitutional difference whether the person who overhears the

confession is an undercover police officer, an associate who later relays the confession to

the authorities, or an associate who is already cooperating with the police and using a

police recording or transmitting device.‖ Id. at 315 (citing United States v. White, 401

U.S. at 751-53).

As in Clark, the Sanders Court characterized Mr. Sanders‘ situation as one of

―misplaced trust.‖ Id. It noted that neither the Fifth Amendment of the federal

constitution nor article I, section 9 of the Tennessee Constitution applies to cases in

which a suspect is deceived by an associate who applies ―moral or psychological‖

pressure to elicit an incriminating statement or confession. Id. at 312. Likewise, the Due

Process Clause of the Fourteenth Amendment offered the defendant no protection under

these circumstances: ―‗The most outrageous behavior by a private party seeking to secure

evidence against a defendant does not make that evidence inadmissible under the Due

Process Clause‘‖ Id. at 315-16 (quoting Colorado v. Connelly, 479 U.S. 157, 166

(1986)). The Sanders Court commented: ―As the United States Supreme Court

cautioned, a person ‗contemplating illegal activities must realize and risk that his

companions may be reporting to the police. . . . [T]he risk is his.‘‖ Id. at 315 (alterations

in original) (quoting White, 401 U.S. 745 at 752).

The defendant in this case seeks to distinguish Clark and Sanders on the basis that

neither defendant in those cases was incarcerated at the time of the incriminating

17

The Court in Clark distinguished Fourth Amendment cases that applied the exclusionary rule to

searches conducted by private persons at the behest of the police. Clark, 452 S.W.3d at 282.

-42-

statement. We reject this argument. Perkins, discussed above, belies any such

distinction. See Perkins, 496 U.S. at 296. Similarly, in State v. Branam, a trusted family

member consented to be ―wired‖ with a recording device in order to tape her

conversation with the defendant, who was incarcerated on other unrelated charges. 855

S.W.2d 563, 567 (Tenn. 1993). Mr. Branam made incriminating statements during their

conversation, which were recorded and played at trial over his objection. Id. On appeal,

Mr. Branam argued that the State‘s surreptitious use of a ―jail-plant‖ to secure his

incriminating statements violated his due process rights under the Fifth and Fourteenth

Amendments to the federal constitution and under article I, section 9 of the state

constitution. Id. at 568. He also challenged the statements under the Fifth Amendment,

asserting that because he was ―in custody‖ at the time he made them, he should have been

advised of his Miranda rights before being ―interrogated‖ by his aunt, whom he

characterized as an ―undercover agent‖ for the State. Id. We agreed with the reasoning

in Illinois v. Perkins that there was no constitutional basis to invalidate Mr. Branam‘s

jailhouse confession to his aunt, under either the Fifth Amendment to the federal

constitution or article I, section 9 of our own constitution. Id. at 568.

Turning to the facts of this case, we find the use of a timetable helpful.

Date Event

October Defendant arrested on federal warrant for violating the terms of his release

11, 2002 on pending federal charges in New York.

October Defendant taken before federal magistrate regarding the federal warrant and

15, 2002 appointed counsel in that case. Defendant and Wilda met at the jail that

evening, and Defendant told Wilda to return the next day.

October Defendant and Wilda had a meeting at jail, and Defendant confessed to

16, 2002 killing the victims. After that meeting, Sgt. Phillips read the defendant his

Miranda rights and attempted to interview him. Defendant requested

counsel, and interview ceased.

October Attorney Bowman informed the State that he was representing Defendant in

18, 2002 the case involving the victims‘ deaths.

October Defendant indicted for the murders of the victims.

23, 2002

October Defendant transferred to New York on the federal charges.

29, 2002

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January 1, At Defendant‘s request, Wilda traveled to New York. They had meeting at

2003 federal prison in New York and Defendant told Wilda that he wanted her to

perform certain tasks for him upon her return to Tennessee, including

retrieving chain saw used in the murders of the victims.

January 3, Defendant called Wilda from jail in New York while she and police were

2003 searching for chain saw; he gave her explicit instructions on where to locate

the chain saw. Based on his directions, Wilda and police officers found and

recovered the chain saw.

It is undisputed that, at the time Wilda initially met with the defendant, he was

arrested and in custody on unrelated federal charges. As noted above, neither the fact

that the defendant was in custody at the time he made the incriminating statements nor

the fact that Wilda was cooperating with the police matters to an analysis under either the

self-incrimination clause or the due process clause. See Perkins, 496 U.S. at 296-98;

Sanders, 452 S.W.3d at 311; Clark, 452 S.W.3d at 282-83 ―[T]he United States

Constitution provides no protection for those who voluntarily offer information to a

confidant.‖ Sanders, 452 S.W.3d at 314 (quoting Pate, 2011 WL 6935329, at *9).

To avoid this, the defendant argues that his statements were involuntary because

they were induced by ―deception and subterfuge.‖ Similar to the defendant in Branam,

the defendant in this case in effect ―asks us, evidently as a matter of state law, to adopt

the viewpoint expressed in a concurring opinion in Perkins, in which Justice Brennan

decried the ‗deliberate use of deception and manipulation by the police.‘‖ Branam, 855

S.W.2d 563, 568 (quoting Illinois v. Perkins, supra, 496 U.S. at 303 (Brennan, J.,

concurring)). The Branam Court recounted: ―Invoking the Fourteenth Amendment‘s

guarantee of due process, Justice Brennan would require a review of the ‗totality of the

circumstances‘ surrounding elicitation of a suspect‘s statement by deceptive means, in

order to ensure that the defendant‘s ‗will was [not] overborne.‘‖ Id. at 569 (alteration in

original). The Branam Court did not adopt Justice Brennan‘s preferred approach, noting

that, despite his family member‘s deception, there was nothing in the record to suggest

that his statements ―were the result of a will that had been ‗overborne.‘‖ Id.; see also

Sanders, 452 S.W.3d at 314. Similarly, we decline to adopt Justice Brennan‘s approach.

Moreover, we find nothing in the record to suggest that the defendant‘s will was

―overborne.‖ As noted in Sanders, ―the Fifth Amendment and Article I, Section 9 forbid

official coercion, not mere ‗strategic deception.‘‖ Sanders, 452 S.W.3d at 312 (citations

omitted). ―These constitutional provisions are not concerned ‗with moral or

psychological pressures to confess emanating from sources other than official coercion.‘‖

Id. (quoting Erving L., 147 F.3d at 1247; Oregon v. Elstad, 470 U.S. 298, 305 (1985)).

The defendant also intertwines his Fifth Amendment self-incrimination claim with

his Fifth Amendment and Sixth Amendment right to counsel claim, arguing in effect that

-44-

the alleged circumvention of his right to counsel somehow affected the voluntariness of

his statements to Wilda. We reject this as well. The self-incrimination and right to

counsel claims are separate and distinct, and we address the right to counsel claims

below. As noted above, for Fifth Amendment and article I, section 9 purposes, we need

not ascertain whether Wilda was acting as an agent of the State at the time the defendant

made the incriminating statements in order to determine whether his right against self-

incrimination was infringed.

From our review of the record, the evidence supports a finding that the

relationship between the defendant and Wilda remained cordial after their divorce, and

the defendant initiated the contact visit with Wilda on October 15, 2002. After that

meeting proved unsatisfactory, the defendant wanted Wilda to meet with him again the

next day. To this end, the defendant suggested that she bring a ―fifty dollar lawyer‖ with

her and pose as the lawyer‘s paralegal to gain access. If that proved successful, he told

Wilda, he would send the attorney out of the meeting room so he could speak to her

alone. The trial court declined to credit the defendant‘s testimony that this suggestion of

a ―fifty dollar lawyer‖ was a genuine request for counsel, and instead credited Wilda‘s

testimony that it was a ruse for her to gain access into the jail the following day. The

defendant instructed Wilda to bring with her on October 16, 2002 a tape-recorder, a note

pad, and a pen to take notes, and during the October 16, 2002 meeting, the defendant

controlled the tape recorder, turning it on and off to present his version in the best

possible light. He wasted no time in confessing to killing the victims, although he tried to

cast it as a form of ―self-defense.‖ These facts do not support the defendant‘s assertion

that the circumstances at the October 15, 2002 meeting and the October 16, 2002 meeting

amounted to a police-dominated atmosphere, compulsion. or pressure for him to make a

statement.

As for any telephone calls made by the defendant from jail either in Tennessee or

in New York, the defendant initiated every single telephone call and spoke freely, despite

the clear recorded warning that the conversations were subject to monitoring and

recording. The defendant and his Aunt Marie asked Wilda to come to New York on

January 1, 2003. His confinement at those times does not render his statements to Wilda

involuntary. The issue of voluntariness was resolved against the defendant by the trial

court and the Court of Criminal Appeals, and we agree with the lower courts‘ holding

that the defendant‘s Fifth Amendment and article I, section 9 rights against compelled

self-incrimination were not violated.

2. Right to Counsel Claim

a. Fifth Amendment Right to Counsel

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Initially, we note the distinction between the Miranda Fifth Amendment right to

counsel, which is designed to protect against coercion, and the Sixth Amendment right to

counsel, which guarantees to a criminal defendant the right to legal assistance in any

critical confrontation with state officials, irrespective of coercion. State v. Berry, 592

S.W.2d 553, 557 (Tenn. 1980); see also W. Mark Ward, Tennessee Criminal Trial

Practice § 5:5 Right to counsel—The confusing relationship between the Fifth and Sixth

Amendments (2015-2016 ed.). The Fifth Amendment right to counsel under Miranda

attaches any time a suspect is subject to custodial interrogation, even if formal charges

have not been filed. See Edwards v. Arizona, 451 U.S. 477, 481-82 (1981); Miranda, 384

U.S. at 444-45. The Court in Miranda recognized that the right to counsel is intertwined

with the ability to deal with the ―inherently compelling pressures‖ of custodial

interrogation. Miranda, 384 U.S. at 444. Consequently, after the mandated warnings are

given, if the suspect states that he wants an attorney, the interrogation must cease until an

attorney is present. Id. at 474. See also State v. Climer, 400 S.W.3d 537, 556-68 (Tenn.

2013) (discussing the interplay between the Fifth Amendment right to counsel and the

Miranda safeguards against compelled self-incrimination). The prosecution may not use

statements stemming from the custodial interrogation of a defendant unless it

demonstrates that the accused was informed of, and voluntarily, knowingly, and

intelligently waived, both his right to remain silent and his right to the presence of an

attorney.

Given that the Fifth Amendment right to counsel springs from the desire to protect

against compelled self-incrimination, we conclude that, as with the defendant‘s Fifth

Amendment self-incrimination claim, a ―misplaced trust‖ analysis is also appropriate for

his Fifth Amendment right to counsel claim. As discussed above, under a misplaced trust

analysis, neither the fact of the defendant‘s incarceration nor Wilda‘s alleged status as an

―agent‖ for the State is a factor. See Perkins, 496 U.S. at 297; Branam, 855 S.W.2d at

568. As we have already concluded under the misplaced trust analysis for the

defendant‘s right against self-incrimination, the defendant‘s statements to Wilda were

free and voluntary and not the product of coercion. Hence, there was no violation of the

defendant‘s Fifth Amendment right to counsel.

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b. Sixth Amendment and Article I, Section 9

Right to Counsel

The Sixth Amendment to the United States Constitution provides: ―In all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for

his defence.‖ See Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (holding that Sixth

Amendment right to counsel in criminal proceedings applies to states through Fourteenth

Amendment). Similarly, article I, section 9 of the Tennessee Constitution provides: ―That

in all criminal prosecutions, the accused hath the right to be heard by himself and his

counsel.‖ Tennessee courts have consistently interpreted the right to counsel under

article I, section 9 of the Tennessee Constitution as identical to the Sixth Amendment

right to counsel. See State v. Downey, 259 S.W.3d 723, 732-33 (Tenn. 2008); State v.

Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996); State v. March, 395 S.W.3d 738, 767-68

(Tenn. Crim. App. 2011).

The Sixth Amendment right to counsel attaches after the initiation of formal

charges. Maine v. Moulton, 474 U.S. 149, 176 (1985); Brewer v. Williams, 430 U.S. 387,

401 (1977) (discussing Massiah v. United States, 377 U.S. 201 (1964)); State v. Berry,

492 S.W.2d at 557. In Tennessee, formal charges may be initiated by an arrest warrant,

indictment or presentment. Huddleston, 924 S.W.2d at 669 (citing State v. Mitchell, 593

S.W.2d 280, 286 (Tenn. 1980); State v. Butler, 795 S.W.2d 680, 685 (Tenn. Crim. App.

1990)). ―[O]nce the adversary judicial process has been initiated, the Sixth Amendment

guarantees a defendant the right to have counsel present at all ‗critical‘ stages of the

criminal proceedings. Interrogation by the State is such a stage.‖ Montejo v. Louisiana,

556 U.S. 778, 786 (2009) (citations omitted). Once the defendant is indicted, he is

entitled to rely on counsel as a ―medium‖ between himself and the State. See Michigan v.

Jackson, 475 U.S. 625, 632 (1986); Moulton, 474 U.S. at 176 overruled on other grounds

by Montejo, 556 U.S. at 788. A Sixth Amendment violation does not depend upon

coercion. Wyrick v. Fields, 459 U.S. 42, 54 (1982).

Massiah is the seminal federal case on the circumstances under which post-

indictment statements made by an accused to an undercover government agent will be

deemed an infringement of the accused‘s Sixth Amendment right to counsel. Massiah,

377 U.S. 201. In Massiah, the defendant and a co-conspirator were indicted for violating

federal narcotics laws. Massiah retained a lawyer and pleaded not guilty. Id. at 202. He

and his co-conspirator were both released on bail. Id. Unbeknownst to Massiah, the co-

conspirator had decided to cooperate with law enforcement officers and allow them to

install a listening device under the front seat of his automobile. Id. at 202-03. After the

device was installed, the defendant and his co-conspirator held a lengthy conversation

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while sitting in the co-conspirator‘s automobile; investigators monitored it from a car

parked out of sight down the street. Id. at 203. Incriminating statements made by the

defendant during the course of this conversation were introduced into evidence at trial

over the defendant‘s objection. Id. The Supreme Court in Massiah held that the Sixth

Amendment right to counsel ―appl[ies] to indirect and surreptitious interrogations as well

as those conducted in the jailhouse.‖ Id. at 206. It found that the investigators had

―deliberately elicited‖ Massiah‘s incriminating statements from him by use of the

government agent ―after he had been indicted and in the absence of his counsel.‖ Id.

Under these circumstances, the Court commented, ―Massiah was more seriously imposed

upon. . . because he did not even know that he was under interrogation by a government

agent.‖ Id. (internal citation omitted). It held that the investigators‘ deliberate elicitation

of incriminating statements by the use of a government agent amounted to interrogation

of the defendant ―after he had been indicted and in the absence of his counsel,‖ in

violation of the accused‘s Sixth Amendment right to counsel. Id. at 206.

In a series of subsequent decisions, the Court clarified what constitutes

interrogation under the Sixth Amendment, and specifically what is encompassed by the

phrase ―deliberately elicited‖ as used in Massiah. United States v. Henry involved a

jailhouse informant housed in the same cell as the indicted accused. United States v.

Henry, 447 U.S. 264, 266 (1980). Law enforcement instructed the informant not to

initiate conversations with the accused or ask them about the charges against them, but to

pay attention to any statements the accused made. Id. at 268. The government argued that

the incriminating statements to which the informant later testified were not ―deliberately

elicited‖ from the accused, as required in Massiah. The Court in Henry noted that

incarceration may make a defendant ―particularly susceptible to the ploys of undercover

Government agents.‖ Id. at 274. It held that law enforcement had ―intentionally creat[ed]

a situation likely to induce [the defendant] to make incriminating statements without the

assistance of counsel‖ and so had deliberately elicited the statements in violation of the

defendant‘s Sixth Amendment right to counsel. Id.

In Maine v. Moulton, a co-defendant agreed to cooperate with law enforcement in

return for a promise of no further charges against him. Maine v. Moulton, 474 U.S. 159,

163 (1985). After the indicted accused asked the informant co-defendant to meet with

him to discuss the charges against them, the co-defendant agreed to law enforcement‘s

request that he wear a recording device for the meeting. Id. Statements made by the

defendant during the meeting were admitted into evidence at the defendant‘s trial. The

defendant argued that there was a violation of his Sixth Amendment right to counsel.

The State in Moulton maintained that there was no interrogation because it had not

―deliberately elicited‖ the defendant‘s statements. It relied on the fact that the State did

not set up the meeting between the defendant and the informant co-defendant, rather, the

defendant had asked the informant co-defendant to meet with him. For this reason, it

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argued, there was no violation of the Sixth Amendment. Id. at 174. The Court rejected

this argument. It noted that the Sixth Amendment guarantees the accused the right to rely

on counsel as a ―medium‖ between the defendant and the State. Id. at 176. This right, the

Court held, ―includes the State‘s affirmative obligation not to act in a manner that

circumvents the protections accorded the accused by invoking this right‖ and the

determination of ―whether particular action by state agents violates the accused‘s right to

the assistance of counsel must be made in light of this obligation.‖ Id. The Moulton

Court observed that ―the Sixth Amendment is not violated whenever—by luck or

happenstance—the State obtains incriminating statements from the accused after the right

to counsel has attached.‖ Id. (citing Henry, 447 U.S. at 276 (Powell, J., concurring)). In

that case, however, it held that the State had deliberately elicited the statements by

―knowingly circumventing the accused‘s right to have counsel present in a confrontation

between the accused and a state agent‖ and so had violated his Sixth Amendment rights.

Id.

The Court reflected on the parameters of interrogation under the Sixth

Amendment in Kuhlmann v. Wilson, 477 U.S. 436 (1986), and the purpose of the

―deliberately elicited‖ test set forth in Massiah. Kuhlmann explained that Massiah ―held

that, once a defendant‘s Sixth Amendment right to counsel has attached, he is denied that

right when federal agents ‗deliberately elicit‘ incriminating statements from him in the

absence of his lawyer. The Court adopted this test. . . to protect accused persons from

‗indirect and surreptitious interrogations as well as those conducted in the jailhouse.‘‖ Id.

at 457 (internal citation and quotation marks omitted). The Kuhlman Court summarized

the aim of Massiah and the cases that followed it:

[T]he primary concern of the Massiah line of decisions is secret

interrogation by investigatory techniques that are the equivalent of direct

police interrogation. Since ―the Sixth Amendment is not violated

whenever—by luck or happenstance—the State obtains incriminating

statements from the accused after the right to counsel has attached,‖ a

defendant does not make out a violation of that right simply by showing that

an informant, either through prior arrangement or voluntarily, reported his

incriminating statements to the police. Rather, the defendant must

demonstrate that the police and their informant took some action, beyond

merely listening, that was designed deliberately to elicit incriminating

remarks.

Id. at 459 (internal citations omitted). Kuhlmann involved a jailhouse informant housed in

the same cell as the indicted defendant. Id. at 439-40. Law enforcement authorities

instructed the informant to ask no questions of the defendant about the crime but merely

to listen to whatever he might say. Id. at 440-41. The defendant made unsolicited

incriminating statements to the informant, who responded only that it ―didn‘t sound too

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good.‖ Id. at 460. The defendant sought to suppress the incriminating statements; the

trial court found that the statements to the informant were ―spontaneous‖ and

―unsolicited‖ and so denied the motion to suppress. Id. at 440. The intermediate appellate

court focused on the circumstances of the incarcerated defendant and the single remark

made by the informant and stated, ―Subtly and slowly, but surely, [the informant‘s]

ongoing verbal intercourse with [the defendant] served to exacerbate [the defendant‘s]

already troubled state of mind.‖ Id. at 460. On this basis, the intermediate appellate court

held that the incriminating statements were deliberately elicited in violation of the

defendant‘s Sixth Amendment rights. Id. The Supreme Court ejected the intermediate

appellate court‘s finding that there was ―deliberate elicitation‖ of the incriminating

statements. Id. at 460-61. It determined that the intermediate appellate court had failed to

accord the required presumption of correctness to the trial court‘s factual findings on

whether the statements were deliberately elicited by the State. Id. at 459. The Kuhlmann

Court held that the record supported the trial court‘s finding that the State had not

―deliberately elicited‖ the defendant‘s incriminating statements, so there was no

interrogation and thus no Sixth Amendment violation. Id. at 460-61.

This Court considered the Sixth Amendment right to counsel18 in State v. Berry,

592 S.W.2d 553 (Tenn. 1980). Shortly after Berry was indicted for first degree murder,

law enforcement authorities decided to plant an agent, posing as a captured felon, in the

Greeneville City Jail for the express purpose of making contact with the defendant. Id. at

554-55. The defendant was arrested the next day and hired an attorney. Id. at 555. His

attorney contacted the Greene County Sheriff and requested that the defendant not be

questioned; the Sheriff agreed. Id. Despite this agreement, the Sheriff ―booked‖ the

undercover agent into the Greeneville City Jail with the defendant. With no knowledge

of the government agent‘s true identity, the defendant initiated a conversation in which

the government agent asked questions of the defendant and received answers that

included incriminating statements. Id. The defendant sought to suppress the statements

as violative of his Sixth Amendment right to counsel.

Relying on Massiah, the Court in Berry held that the conversations between Mr.

Berry and the government agent constituted a form of interrogation. Id. at 561. The

Court added: ―The law will not permit law enforcement officials to do by ruse, trickery,

deceit and deception that which it is not permitted to do openly and honestly.‖ Id. The

Berry Court held that the statements were taken in violation of Mr. Berry‘s Sixth

Amendment right to counsel, and reversed the conviction on that basis. Id.

These cases provide helpful background by explaining what does, and does not,

constitute ―secret interrogation by investigatory techniques that are the equivalent of

18

State v. Berry referred only to the Sixth Amendment of the United States Constitution and did

not refer to article I, section 9 of the Tennessee Constitution.

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direct police interrogation‖ for purposes of the Sixth Amendment right to counsel, with

focus on the boundaries of the ―deliberately elicited‖ test adopted in Massiah. Kuhlmann,

477 U.S. at 459. However, each case was premised on the following facts: (1) the

defendant‘s Sixth Amendment right to counsel had attached at the time that the

statements in question were made, (2) the individual to whom the statements were made

was acting as an agent of the government at the time, and (3) the defendant had not

waived his Sixth Amendment right to counsel when he made the incriminating

statements. In contrast, in the case at bar, these threshold issues must be addressed. As

discussed below, this defendant‘s Sixth Amendment claims squarely present the issues of

whether the defendant‘s Sixth Amendment right to counsel had attached when he made

the incriminating statements, whether Wilda was acting as an agent of the State at the

time the statements were made, and whether the defendant impliedly consented to law

enforcement monitoring his conversations and thus effectively waived his rights under

the Sixth Amendment.

1. October 15 & 16, 2002, Statements

The defendant argues on appeal that the incriminating statements he made to

Wilda on October 15 and 16, 2002, were admitted into evidence in violation of his Sixth

Amendment right to counsel. The defendant admits, as he must, that the Sixth

Amendment right to counsel does not attach until ―after the initiation of adversary

criminal proceedings,‖ Maine v. Moulton, 474 U.S. at 170, and it is undisputed that the

defendant was not indicted for offenses arising out of the murder of victims Adam and

Samantha until October 23, 2002, after he met with Wilda on October 15 and 16, 2002,

and told her that he ―blew [the victims‘] brains out.‖

The defendant argues that it does not matter that he had not yet been indicted for

the murders of Adam and Samantha at the time he made the October 15 and 16, 2002

statements to Wilda. He reasons that his arrest for violating the conditions of his release

in the federal case rested upon the suspicion that he had engaged in foul play in the

disappearance of Mr. Thomas and the victims. In that sense, he asserts, his federal arrest

was factually intertwined with the murder charges. Accordingly, he contends that

because he had been appointed counsel in the federal case, his right to counsel had

necessarily attached in this case regarding the murders of Adam and Samantha.

The defendant concedes that he did not make this argument in the trial court. In

an ordinary, non-capital criminal case, arguments not first raised in the trial court are

waived on appeal. Tenn. R. App. P. 36(a); State v. Hayes, 337 S.W.3d 235, 256 (Tenn.

Crim. App. 2010). However, Tennessee Code Annotated section 39-13-206(a)(1)

requires mandatory review in capital cases. Therefore, in capital cases, when suppression

issues are raised for the first time on appeal, the appellate courts will review the issue for

plain error. State v. Dotson, 450 S.W.3d 1, 48-49 (Tenn. 2014), cert. denied, 135 S. Ct.

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1535 (2015). When conducting plain error review, this Court will grant relief only when

the following five prerequisites are satisfied: (1) the record clearly establishes what

occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a

substantial right of the accused was adversely affected; (4) the accused did not waive the

issue for tactical reasons; and (5) consideration of the error is necessary to do substantial

justice. Id. (citing State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007) (internal citations

and quotation marks omitted)). The defendant bears the burden of persuading an

appellate court that plain error exists. Id. (citing State v. Bledsoe, 226 S.W.3d 349, 355

(Tenn. 2007)).

As noted by both of the lower courts, the Sixth Amendment right to counsel is

―offense specific.‖ Statements obtained regarding an offense for which adversary judicial

proceedings have not begun are admissible, even if they were deliberately elicited during

an investigation of a separate offense for which there was a right to counsel. Texas v.

Cobb, 532 U.S. 162, 173 (2001) (holding the right to counsel is "offense specific" and

does not necessarily extend to offenses that are "factually related" to those that have been

charged); McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (holding invocation of Sixth

Amendment right to counsel is offense specific, while Miranda is not offense specific);

Maine v. Moulton, 474 U.S. 159, 168 (1985) (holding statements relating to the

uncharged crime may be admitted). Assertion of the right to counsel for an indicted

offense does not serve to invoke the right for all future prosecutions. McNeil, 501 U.S. at

176. The Sixth Amendment right to counsel attaches only to offenses that, even if not

formally charged, would be considered the ―same offense‖ under the Blockburger test.

Cobb, 532 U.S. at 173. Blockburger defines offenses as the ―same‖ only where neither

statute requires proof of a fact that the other does not. Blockburger v. United States, 284

U.S. 299, 304 (1932).

In this case, the pending federal charge for violating the conditions of release in

New York and the Tennessee murder charges related to the victims in this case were

clearly not the ―same offense‖ for purposes of attachment of the Sixth Amendment right

to counsel. Therefore, when the defendant made his statements to Wilda on October 15

and 16, 2002, he had not been charged with the murders and the Sixth Amendment right

to counsel had not attached as to those charges. Therefore, no ―clear and unequivocal

rule of law‖ was breached so as to warrant plain error relief.

2. January 1 & 3, 2003 Statements

On October 23, 2002, the defendant was indicted on the murde

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