# State of Tennessee v. Howard Hawk Willis

> Tennessee Supreme Court · July 6, 2016 · 496 S.W.3d 653

URL: https://www.frixlaw.com/law-library/cases/4013577

## Case

- **Full name:** STATE of Tennessee v. Howard Hawk WILLIS
- **Court:** Tennessee Supreme Court
- **Decided:** July 6, 2016
- **Citations:** 496 S.W.3d 653; 2016 Tenn. LEXIS 405
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Justice Holly Kirby
- **Cited by:** 109 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4013577

## How later opinions describe it (automated extraction)

- holding that to establish agency, a defendant must show that the State “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 de…
- concluding that the trial court did not abuse its discretion by admitting into evidence graphic and “quite disturbing” color photographs of the victim’s decapitated head, severed hands, and “headless and handless body”
- holding that the trial court did not abuse its discretion by admitting “quite disturbing” photographs, including one of a “severed and - 29 - severely decomposed head” because they showed premeditation
- stating "that federal cases applying the Fourth Amendment should be regarded as 'particularly persuasive' " (quoting State v. Hayes , 188 S.W.3d 505, 511 (Tenn. 2006) )
- stating “that federal cases applying the Fourth Amendment should be regarded as ‘particularly persuasive’” (quoting State v. Hayes, 188 S.W.3d 505, 511 (Tenn. 2006))

## Opinion text

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
_____________________________

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

-2-
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.‖
-3-
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.

-4-
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.
-5-
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.
-6-
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
-7-
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.
-8-
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.
-9-
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.
-10-
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.
-11-
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.‖
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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

-37-
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,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4013577. Public record. Not legal advice.