State of Tennessee v. Howard Hawk Willis

OPINION

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.

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 eonfidant 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. *666 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 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.

Pacts 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 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 Black-wood 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.

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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 checked in for boarding. Samantha Chris-mer 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 chil *668 dren, 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 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 Ross-ville, 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. Chris-mer was on the telephone with the defendant, she directed her husband to go to a neighbor’s house to call the Walker County, Georgia Sheriffs 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 Sheriffs Department. 6 The defendant was scheduled *669 to come in for an interview on October 4, 2002, on another matter, but he called one of Officér 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 Sheriffs 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 Willis 7 (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 Sheriffs 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 January 2003, Detective Efaw went with Wilda to look for a chainsaw off 1-75 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.

*670 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 Sheriffs 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 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 *671 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 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 Sheriffs 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 Sheriffs 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 *672 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.

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 *673 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 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' thé 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 át 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. Little-john also examined debris recovered from a chainsaw. She noted numerous pieces of fabric and fiber bundlbs 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 Brent-wood 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 ease. 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. 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 *674 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-Hor-zelski 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 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 *675 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 Sheriffs 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 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 *676 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?”

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 Sheriffs 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 Drolsha-gen 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 *677 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. 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 Sheriffs- Investigator Tommy Remine.

Inside Betty’s garage, Drug Task Force Lt. Thomas Eugene Smith found a box of Winchester 132 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 Car-man 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 *678 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.

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 Sheriffs 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 Jonesborough 13 , Tennessee.

In the meantime, the Bradley County Sheriffs 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 Sheriffs 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 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. ■

*679 The folio-wing 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 Sheriffs 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 Sheriffs Office and the Washington County Sheriffs 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 defendant gave Wilda very specific directions on where to find the chainsaw. He told her that from Chattanooga, she was to take 1-75 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 *680 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 Sheriffs 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 Sheriffs Office and the Bradley County Sheriffs 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.

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.”

*681

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 Sheriffs 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. The refrigerator and other appli-anees 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-Horzel-ski’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 ¿ cold front had moved through the area in January 2003, so the temperatures were declining. Second, Dr. Haskell faulted Dr. Watson-Hor-zelski 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 *682 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. Has-kell 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. Has-kell agreed that if there were already flies at the murder scene due to the presence of decaying food, it 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. Has-kell 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 *683 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 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 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, *684 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 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, T 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 caret,]” and “[n]o where[,] *685 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 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 pen *686 alty 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 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 *687 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 Fed. Appx. 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 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 Sheriffs 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 Sheriffs Office detention center pending the hearing.

That same day, fisherman Luther Whit-son 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 Sheriffs Office, the Washington County Sheriffs 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 sought to hire an attorney was to handle the federal matter. During the conversations, two different attorneys *688 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 Sheriffs 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 of her uncle as a “missing person,” and she had been working with the Bradley County Sheriffs 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 *689 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 Sheriffs 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 á 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 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 *690 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 Sheriffs 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 Sheriffs 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 Sheriffs Office and the Bradley County Sheriffs Office. Wilda testified that, after the defendant initially told her in their October 16, 2002 in-person meeting that he *691 “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 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.

*692 While Wilda was still in New York, she spoke to detectives in both the Washington County Sheriffs Office and the Bradley County Sheriffs 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 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 *693 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. 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 *694 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 Department and the Washington County Sheriffs 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 effimts 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). Simi *695 larly, 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 volun-tariness of a confession by a preponderance of the 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 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (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 , 86 S.Ct. 1602 . 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 , 86 S.Ct. 1602 , 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 , 86 S.Ct. 1602 . 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 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984); see also State v. Goss, 995 S.W.2d 617, 629 (Tenn.Crim.App.1998)

In Perkin's, 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, 110 S.Ct. 2394 . 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, 110 S.Ct. 2394 . 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 withouf 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.

Id. at 297-98, 110 S.Ct. 2394 (alternation in original) (internal citations omitted). The Perkins Court further concluded that this *696 tactic did not violate the Self-Incrimination Clause of the Fifth Amendment. Id, at 298, 110 act, 2394.

- 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 KC.’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 .

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 con *697 text 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 , 91 S.Ct. 1122 , 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293 [, 301], 87 S.Ct. 408 , 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427, 443-45 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (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 ah 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. Sanders began touching the daughter inappropriately; over time, his acts progressed to sexual intercourse. The victim finally reported the sexual abuse to a school counselor who, in turn, contacted law enforcement authorities. Id.

■ Mr. Sanders’ girlfriend was reluctant to believe the abuse allegations, so she decided to meet with the defendant to see if he would admit to them. At the suggestion, of the investigating detective, the girlfriend agreed to wear a concealed microphone during her meeting with the defendant. The girlfriend met with the defendant while law enforcement officers listened to, recorded, and visually monitored the conversation from an unmarked police car parked nearby. Id.

During the conversation, the girlfriend told Mr. Sanders, “I already know, what happened; I need to hear it from you.” She led the defendant' in Sanders to believe that, if he were .truthful with her, she would keep the investigation from going further by not taking the victim to an upcoming Department of Children’s Services interview. Id. at 303-04 .

When Mr. Sanders initially denied the allegations, the girlfriend responded by threatening him with seeing his face on the television news if he were not honest with her. Id. at 304 . Gradually, the defendant *698 began to admit to inappropriate conduct, first characterizing it as inadvertent contact with the girlfriend’s daughter while “wrestling.” Eventually he admitted inappropriate touching and kissing, coupled with disclaimers that the daughter initiated the contacts and purportedly asked him for sexual intercourse. The defendant closed by asking the girlfriend for mercy and thanking her for talking to him. Id.

A month later, the girlfriend in Sanders made a monitored and recorded telephone call to Mr. Sanders, but he made no admissions during that conversation. The police then contacted him and asked to meet with him. During that meeting, Mr. Sanders admitted to nothing and declined to give a DNA sample. Thereafter, he was indicted on charges of aggravated sexual battery and rape of a child.

Mr. Sanders filed a motion to suppress the recorded statements to the girlfriend. He argued that his girlfriend was acting as an agent of the State and had coerced him into making a false confession. He asserted that admission of the statements into evidence would violate his right to due process and his privilege against self-incrimination. The trial court denied the motion to suppress, the statements were admitted into evidence, and the jury convicted the defendant of multiple counts of aggravated sexual battery and rape of a child. Id. at 304-05 .

Mr. Sanders made the same arguments on appeal to this Court. Id. at 305 . The Sanders Court noted that the exclusionary rule is a prophylactic measure designed to deter police misconduct: “[Ejvidence gathered by private persons is generally not subject to the exclusionary rule because with private action there is no police misconduct to be deterred.” 17 Id. at 311 (citing United States v. Leon, 468 U.S. 897, 906-10 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984); United States v. Janis, 428 U.S. 433, 447-54 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976)). The Court observed, “In the early stages of an investigation, it is constitutionally acceptable for the police to cooperate with friends or relatives of the victim or the suspect to see if these individuals can goad the suspect into confessing.” Id. at 316 (citing United States v. Henry, 447 U.S. 264, 272 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980)). The Sanders Court cited a Court of Criminal Appeals case that involved a rape victim who agreed to make a police-controlled phone call to the defendant, and noted that, in a case of misplaced trust, “neither the Fourth, Fifth, or Sixth Amendment protects a suspect who voluntarily offers information to a confidant.” Sanders, 452 S.W.3d at 314 -15 (citing State v. Bacon, No. 03C01-9608-CR-00308, 1998 WL 6925 , at *12 (Tenn.Crim. App. Jan. 8, 1998). “In cases that involve suspects making confessions to friends, relatives, and other associates, the law need not be concerned with whether that confidant could properly be labeled as a private citizen or an agent of the State.” Id. at 311. Under the “misplaced trust” doctrine, Sanders explained, “courts need not expend their energies to determine the point at which a suspect’s confidant becomes a government agent” because “it makes no constitutional difference whether the person who overhears the confession is an undercover police officer, an associate who later relays the confession to the authorities, or an associate who is already cooperating with the police and using a police recording or transmitting device.” Id. at 315 (citing United States v. White, 401 U.S. at 751-53 , 91 S.Ct. 1122 ).

As in Clark , the Sanders Court characterized Mr. Sanders’ situation as one of *699 “misplaced trust.” Id. It noted that neither the Fifth Amendment of the federal constitution nor article I, section 9 of the Tennessee Constitution applies to cases in which a suspect is deceived by an associate who applies “moral or psychological” pressure to elicit an incriminating statement or confession. Id. at 312 . Likewise, the Due Process Clause of the Fourteenth Amendment offered the defendant no protection under these circumstances: “‘The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause’ ” Id. at 315-16 (quoting Colorado v. Connelly, 479 U.S. 157, 166 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986)). The Sanders Court commented: “As the United States Supreme Court cautioned, a person ‘contemplating illegal activities must realize and risk that his companions may be reporting to the police.... [T]he risk is his.’ ” Id. at 315 (alterations in original) (quoting White, 401 U.S. 745 at 752 , 91 S.Ct. 1122 ).

The defendant in this case seeks to distinguish Clark and Sanders on the basis that neither defendant in those cases was incarcerated at the time of the incriminating statement. We reject this argument. Perkins, discussed above, belies any such distinction. See Illinois v. Perkins, 496 U.S. 292, 296 , 110 S.Ct. 2394 , 110 L.Ed.2d 243 (1990). Similarly, in State v. Branam, a trusted family member consented to be “wired” with a recording device in order to tape her conversation with the defendant, who was incarcerated on other unrelated charges. 855 S.W.2d 563, 567 (Tenn.1993). Mr. Branam made incriminating statements during their conversation, which were recorded and played at trial over his objection. Id. On appeal, Mr. Branam argued that the State’s surreptitious use of a “jail-plant” to secure his incriminating statements violated his due process rights under the Fifth and Fourteenth Amendments to the federal constitution and under article I, section 9 of the state constitution. Id. at 568 . He also challenged the statements under the Fifth Amendment, asserting that because he was “in custody” at the time he made them, he should have been advised of his Miranda rights before being “interrogated” by his aunt, whom he characterized as an “undercover agent” for the State. Id. We agreed with the reasoning in Illinois v. Perkins that there was no constitutional basis to invalidate Mr. Bra-nam’s jailhouse confession to his aunt, under either the Fifth Amendment to the federal constitution or article I, section 9 of our own constitution. Id. at 568 .

Turning to the facts of this case, we find the use of a timetable helpful.

*700 Date

Event

October

11,2002

Defendant arrested on federal warrant for violating the terms of his release on pending federal charges in New York.

October 15,2002

Defendant taken before federal magistrate regarding the federal warrant and appointed counsel in that case. Defendant and Wilda met at the jail that evening, and Defendant told Wilda to return the next day.

October 16,2002

Defendant and Wilda had a meeting at jail, and Defendant confessed to killing the victims. After that meeting, Sgt. Phillips read the defendant his Miranda rights and attempted to interview him. Defendant requested counsel, and interview ceased.

October 18,2002

Attorney Bowman informed the State that he was representing Defendant in the case involving the victims’ deaths.

October 23, 2002

Defendant indicted for the murders of the victims.

October 29,2002

Defendant transferred to New York on the federal charges.

January 1, 2003

At Defendant’s request, Wilda traveled to New York. They had meeting at federal prison in New York and Defendant told Wilda that he wanted her to perform certain tasks for him upon her return to Teimessee, including retrieving chain saw used in the murders of the victims.

January 3, 2003

Defendant called Wilda from jail in New York while she and police were searching for chain saw; he gave her explicit instructions on where to locate the chain saw. Based on his directions, Wilda and police officers found and recovered the chain saw.

It is undisputed that, at the time Wilda initially met with the defendant, he was arrested and in custody on unrelated federal charges. As noted above, neither the fact that the defendant was in custody at the time he made the incriminating statements nor the fact that Wilda was cooperating with the police matters to an analysis under either the self-incrimination clause or the due process clause. See Perkins, 496 U.S. at 296-98 , 110 S.Ct. 2394 ; Sanders, 452 S.W.3d at 311 ; Clark, 452 S.W.3d at 282 -83 “[T]he United States Constitution provides no protection for those who voluntarily offer information to a confidant.” Sanders, 452 S.W.3d at 314 (quoting Pate, 2011 WL 6935329 , at *9).

To avoid this, the defendant argues that his statements were involuntary because they were induced by “deception and subterfuge.” Similar to the defendant in Branam , the defendant in this case in effect “asks us, evidently as a matter of state law, to adopt the viewpoint expressed in a concurring opinion in Perkins , in which Justice Brennan decried the ‘deliberate use of deception and manipulation by the police.’ ” Branam, 855 S.W.2d 563, 568 (quoting Illinois v. Perkins, supra, 496 U.S. at 303 , 110 S.Ct. 2394 (Brennan, J., concurring)). The Branam Court recounted: “Invoking the Fourteenth Amendment’s guarantee of due process, Justice Brennan would require a review of the *701 ‘totality of the circumstances’ surrounding elicitation of a suspect’s statement by deceptive means, in order to ensure that the defendant’s ‘will was [not] overborne.’ ” Id. at 569 (alteration in original). The Bmnam Court did not adopt Justice Brennan’s preferred approach, noting that, despite his family member’s deception, there was nothing in the record to suggest that his statements “were the result of a will that had been ‘overborne.’ ” Id.; see also Sanders, 452 S.W.3d at 314 . Similarly, we decline to adopt Justice Brennan’s approach. Moreover, we find nothing in the record to suggest that the defendant’s will was “overborne.” As noted in Sanders , “the Fifth Amendment and Article I, Section 9 forbid official coercion, not mere ‘strategic deception.’” Sanders, 452 S.W.3d at 312 (citations omitted). “These constitutional provisions are not concerned ‘with moral or psychological pressures to confess emanating from sources other than official coercion.’ ” Id. (quoting United States v. Erring L, 147 F.3d 1240, 1247 (10th Cir.1998); Oregon v. Elstad, 470 U.S. 298, 305 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985)).

The defendant also intertwines his Fifth Amendment self-incrimination claim with his Fifth Amendment and Sixth Amendment right to counsel claim, arguing in effect that the alleged circumvention of his right to counsel somehow affected the vol-untariness of his statements to Wilda. We reject this as well. The self-incrimination and right to counsel claims are separate and distinct, and we address the right to counsel claims below. As noted above,, for Fifth Amendment and article I, section 9 purposes, we need not ascertain whether Wilda was acting as an agent of the State - at the time the defendant made, the incriminating statements in order to determine whether his right against self-incrimination was infringed.

From our review of the record, the evidence supports a finding that the relationship between the defendant and Wilda remained cordial after their divorce, and the defendant initiated the contact visit with Wilda on October 15, 2002. After that meeting proved unsatisfactory, the defendant wanted Wilda to meet with him again the next day. To this end, the defendant suggested that she bring a “fifty dollar lawyer” with her and pose as the lawyer’s paralegal to gain access. If that proved successful, he told Wilda, he would send the attorney out of the meeting room so he could speak to her alone. The trial court declined to credit the defendant’s testimony that this suggestion of a “fifty dollar lawyer” was a genuine request for counsel, and instead credited Wilda’s testimony that it was a ruse for her to gain access into the jail the following day. The defendant instructed Wilda to bring with her on October 16, 2002 a tape-recorder, a note pad, and a pen to take notes, and during the October 16, 2002 meeting, the defendant controlled the tape recorder, turning it on and off to present his version in the best possible light. He wasted no time in confessing to killing the victims, although he tried to cast it as a form of “self-defense.” These facts do not support the defendant’s assertion that the circumstances at the October 15, 2002 meeting and the October 16, 2002 meeting amounted to a police-dominated atmosphere, compulsion. or pressure for him to make a statement.

As for any telephone calls made by the defendant from jail either in Tennessee or in New York, the defendant initiated every single telephone call and spoke freely, despite the clear recorded warning that the conversations were subject to monitoring and recording. The defendant and his Aunt Marie asked Wilda to come to New York on January 1, 2003. His confinement at those times does not render his statements to Wilda involuntary. The issue of volun-tariness was resolved against the defen *702 dant by the trial court and the Court of Criminal Appeals, and we agree with the lower courts’ holding that the defendant’s Fifth Amendment and article I, section 9 rights against compelled self-incrimination were not violated.

£ Right to Counsel Claim

a. Fifth Amendment Right to Counsel

Initially, we note the distinction between the Miranda Fifth Amendment right to counsel, which is designed to protect against coercion, and the Sixth Amendment right to counsel, which guarantees to a criminal defendant the right to legal assistance in any critical confrontation with state officials, irrespective of coercion. State v. Berry, 592 S.W.2d 553, 557 (Tenn.1980); see also W. Mark Ward, Tennessee Criminal Trial Practice § 5:5 Right to counsel — The confusing relationship between the Fifth and Sixth Amendments (2015-2016 ed.). The Fifth Amendment right to counsel under Miranda attaches any time a suspect is subject to custodial interrogation, even if formal charges have not been filed. See Edwards v. Arizona, 451 U.S. 477, 481-82 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981); Miranda, 384 U.S. at 444-45 , 86 S.Ct. 1602 . The Court in Miranda recognized that the right to counsel is intertwined with the ability to deal with the “inherently cdmpelling pressures” of custodial interrogation. Miranda, 384 U.S. at 444 , 86 S.Ct. 1602 . Consequently, after the mandated warnings are given, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. Id. at 474 , 86 S.Ct. 1602 . See also State v. Climer, 400 S.W.3d 537, 556-68 (Tenn.2013) (discussing the interplay between the Fifth Amendment right to counsel and the Miranda safeguards against compelled self-incrimination). The prosecution may not use statements stemming from the custodial interrogation of a defendant unless it demonstrates that the accused was informed of, and voluntarily, knowingly, and intelligently waived, both his right to remain silent and his right to the presence of an attorney.

Given that the Fifth Amendment right to counsel springs from the desire to protect against compelled self-incrimination, we conclude that, as with the defendant’s Fifth Amendment self-incrimination claim, a. “misplaced trust” analysis is also appropriate for his Fifth Amendment right to counsel claim. As discussed above, under a misplaced trust analysis, neither the fact of the defendant’s incarceration nor Wilda’s alleged status as an “agent” for the State is a factor. See Perkins, 496 U.S. at 297 , 110 S.Ct. 2394 ; Branam, 855 S.W.2d at 568 . As we have already concluded under the misplaced trust analysis for the defendant’s right against self-incrimination, the defendant’s statements to Wilda were free and voluntary and not the product of coercion. Hence, there was no violation of the defendant’s Fifth Amendment right to counsel.

b. Sixth Amendment and Article I, Section 9

Right to Counsel

The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” See Gideon v. Wainwright, 372 U.S. 335, 342 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (holding that Sixth Amendment right to counsel in criminal proceedings applies to states through Fourteenth Amendment). Similarly, article I, section 9 of the Tennessee Constitution provides': “That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel.” Tennessee courts have consistently interpreted *703 the right to counsel under article I, section 9 of the Tennessee Constitution as identical to the Sixth Amendment right to counsel. See State v. Downey, 259 S.W.3d 723, 732-33 (Tenn.2008); State v. Huddleston, 924 S.W.2d 666, 669 (Tenn.1996); State v. March, 395 S.W.3d 738, 767-68 (Tenn. Crim.App.2011).

The Sixth Amendment right to counsel attaches after the initiation of formal charges. Maine v. Moulton, 474 U.S. 159, 176 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985); Brewer v. Williams, 430 U.S. 387, 401 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977) (discussing Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964)); State v. Berry, 592 S.W.2d at 557 . In Tennessee, formal charges may be initiated by an arrest warrant, indictment or presentment. Huddleston, 924 S.W.2d at 669 (citing State v. Mitchell, 593 S.W.2d 280, 286 (Tenn.1980); State v, Butler, 795 S.W.2d 680, 685 (Tenn.Crim.App.1990)). “[Ojnce the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have * counsel present at all ‘critical’ stages of the criminal proceedings. Interrogation by the State is such a stage.” Montejo v. Louisiana, 556 U.S. 778, 786 , 129 S.Ct. 2079 , 173 L.Ed.2d 955 (2009) (citations omitted). Once the defendant is indicted, he is entitled to rely on counsel as a “medium” between himself and the State. See Michigan v. Jackson, 475 U.S. 625, 632 , 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986); Moulton, 474 U.S. at 176 , 106 S.Ct. 477 overruled on other grounds by Montejo, 556 U.S. at 788 , 129 S.Ct. 2079 . A Sixth Amendment violation does not depend upon coercion. Wyrick v. Fields, 459 U.S. 42, 54 , 103 S.Ct. 394 , 74 L.Ed.2d 214 (1982).

Massiah is the seminal federal case on the circumstances under which post-indictment statements made by an accused to an undercover government agent will be deemed an infringement of the accused’s Sixth Amendment right to counsel. Massi-ah, 377 U.S. 201 , 84 S.Ct. 1199 . In Massi-ah , the defendant and a co-conspirator were indicted for violating federal narcotics laws. Massiah retained a lawyer and pleaded not guilty. Id. at 202 , 84 S.Ct. 1199 . He and his co-conspirator were both released on bail. Id. Unbeknownst to Mas-siah, the co-conspirator had decided to cooperate with law enforcement officers and allow them to install a listening device under the front seat of his automobile. Id. at 202-03 , 84 S.Ct. 1199 . After the device was installed, the defendant and his co-conspirator held a lengthy conversation while sitting in the co-conspirator’s automobile; investigators monitored it from a car parked out of sight down the street. Id. at 203 , 84 S.Ct. 1199 . Incriminating statements made by the defendant during the course of this conversation were introduced into evidence at trial over the defendant’s objection. Id. The Supreme Court in Massiah held that the Sixth Amendment right to counsel “applies] to indirect and surreptitious interrogations as well as those conducted in the jailhouse.” Id. at 206 , 84 S.Ct. 1199 . It found that the investigators had “deliberately elicited” Massiah’s incriminating statements from him by use of the government agent “after he had been indicted and in the absence of his counsel.” Id. Under these circumstances, the Court commented, “Massiah was more seriously imposed upon... because he did not even know that he was under interrogation by a government agent.” Id. (internal citation omitted). It held that the investigators’ deliberate elicitation of incriminating statements by the use of a government agent amounted to interrogation of the defendant “after he had been indicted and in the absence of his counsel,” in violation of the accused’s Sixth Amendment right to counsel. Id. at 206 , 84 S.Ct. 1199 .

*704 In a series of subsequent decisions, the Court clarified what constitutes interrogation under the Sixth Amendment, and specifically what is encompassed by the phrase “deliberately elicited” as used in Massiah, United States v. Henry involved a jailhouse informant housed in the same cell as the indicted accused. United States v. Henry, 447 U.S. 264, 266 , 100 S.Ct. 2183 , 66 L.Ed.2d 116 (1980). Law enforcement instructed the informant not to initiate conversations with the accused or ask them about the charges against them, but to pay attention to any statements the accused made. Id. at 268, 100 S.Ct. 2183 . The government argued that the incriminating statements to which the informant later testified were not “deliberately elicited” from the accused, as required in Massiah . The Court in Henry noted that incarceration may make a defendant “particularly susceptible to the ploys of undercover Government agents.” Id. at 274, 100 S.Ct. 2183 . It held that law enforcement had “intentionally creat[ed] a situation likely to induce [the defendant] to make incriminating statements without the assistance of counsel” and so had deliberately elicited the statements in violation of the defendant’s Sixth Amendment right to counsel. Id.

In Maine v. Moulton, a co-defendant agreed to cooperate with law enforcement in return for a promise of no further charges against him. Maine v. Moulton, 474 U.S. 169 , 163, 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985). After the indicted accused asked the informant co-defendant to meet with him to discuss the charges against them, the co-defendant agreed to law enforcement’s request that he wear a recording device for the meeting. Id. Statements made by the defendant during the meeting were admitted into evidence at the defendant’s trial. The defendant argued that there was a violation of his Sixth Amendment right to counsel.

The State in Moulton maintained that there was no interrogation because it had not “deliberately elicited” the defendant’s statements. It relied on the fact that the State did not set up the meeting between the defendant and the informant co-defendant, rather, the defendant had asked the informant co-defendant to meet with him. For this reason, it argued, there was no violation of the Sixth Amendment. Id. at 174, 106 S.Ct. 477 . The Court rejected this argument. It noted that the Sixth Amendment guarantees the accused the right to rely on counsel as a “medium” between the defendant and the State. Id. at 176 , 106 S.Ct. 477 . This right, the Court held, “includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right” and the determination of “whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation.” Id. The Moulton Court observed that “the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached.” Id. (citing Henry, 447 U.S. at 276 , 100 S.Ct. 2183 (Powell, J., concurring)). In that case, however, it held that the State had deliberately elicited the statements by “knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent” and so had violated his Sixth Amendment rights. Id.

The Court reflected on the parameters of interrogation under the Sixth Amendment in Kuhlmann v. Wilson, 477 U.S. 436 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986), and the purpose of the “deliberately elicited” test set forth in Massiah. Kuhlmann explained that Massiah “held that, once a defendant’s Sixth Amendment right to counsel has attached, he is denied that right when federal agents ‘deliberately *705 elicit’ incriminating statements from him in the absence of his lawyer. The Court adopted this test... to protect accused persons from ‘indirect and surreptitious interrogations as well as those conducted in the jailhouse.’” Id. at 457, 106 S.Ct. 2616 (internal citation and quotation marks omitted). The Kuhlmann Court summarized the aim of Massiah and the cases that followed it:

[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since “the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached,” a defendant does not make out a violation of •that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

Id. at 459 (internal citations omitted). Kuhlmann involved a jailhouse informant housed in the same cell as the indicted defendant. Id. at 439-40 , 106 S.Ct. 2616 . Law enforcement authorities instructed the informant to ask no questions of the defendant about the crime but merely to listen to whatever he might say. Id. at 440-41 , 106 S.Ct. 2616 . The defendant made unsolicited iiicriminating statements to the informant, who responded only that it “didn’t sound too good.” Id. at 460 , 106 S.Ct. 2616 . The defendant sought to suppress the incriminating statements; the trial court found that the statements to the informant were “spontaneous” and “unsolicited” and so denied the motion to suppress. Id. at 440 , 106 S.Ct. 2616 . The intermediate appellate court focused on the circumstances of the incarcerated defendant and the single remark made by the informant and stated, “Subtly and slowly, but surely, [the informant’s] ongoing verbal intercourse with [the defendant] served to exacerbate [the defendant’s] already troubled state of mind.” Id. at 460 , 106 S.Ct. 2616 . On this basis, the intermediate appellate court held that the incriminating statements were deliberately elicited in violation of the defendant’s Sixth Amendment rights. Id. The Supreme Court ejected the intermediate appellate court’s finding that there was “deliberate elicitation” of the incriminating statements. Id. at 460-61 , 106 S.Ct. 2616 . It determined that the intermediate appellate court had failed to accord the required presumption of correctness to the trial court’s factual findings on whether the statements were deliberately elicited by the State. Id. at 459 , 106 S.Ct. 2616 . The Kuhlmann Court held that the record supported the trial court’s finding that the State had not “deliberately elicited” the defendant’s incriminating statements, so there was no interrogation and thus no Sixth Amendment violation. Id. at 460-61 , 106 S.Ct. 2616 .

This Court considered the Sixth Amendment right to counsel 18 in State v. Berry, 592 S.W.2d 553 (Tenn.1980). Shortly after Berry was indicted for first degree murder, law enforcement authorities decided to plant an agent, posing as a captured felon, in the Greeneville City Jail for the express purpose of making contact with the defendant. Id. at 554-55 . The defendant was arrested the next day and hired an attorney. Id. at 555 . His attorney contacted the Greene County Sheriff and re *706 quested that the defendant not be questioned; the Sheriff agreed. Id. Despite this agreement, the Sheriff “booked” the undercover agent into the Greeneville City Jail with the defendant. With no knowledge of the government agent’s true identity, the defendant initiated a conversation in which the government agent asked questions of the defendant and received answers that included incriminating statements. Id. The defendant sought to suppress the statements as violative of his Sixth Amendment right to counsel.

Relying on Massiah , the Court in Berry held that the conversations between Mr. Berry and the government agent constituted a form of interrogation. Id. at 561 . The Court added: “The law will not permit law enforcement officials to do by ruse, trickery, deceit and deception that which it is not permitted to do openly and honestly.” Id. The Berry Court held that the statements were taken in violation of Mr. Berry’s Sixth Amendment right to counsel, and reversed the conviction on that basis. Id.

These cases provide helpful background by explaining what does, and does not, constitute “secret interrogation by investigatory techniques that are the equivalent of direct police interrogation” for purposes of the Sixth Amendment right to counsel, with focus on the boundaries of the “deliberately elicited” test adopted in Massiah. Kuhlmann, 477 U.S. at 459 , 106 S.Ct. 2616 . However, each case was premised on the following facts: (1) the defendant’s Sixth Amendment right to counsel had attached at the time that the statements in question were made, (2) the individual to whom the statements were made was acting as an agent of the government at the time, and (3) the defendant had not waived his Sixth Amendment right to counsel when he made the incriminating statements. In contrast, in the case at bar, these threshold issues must be addressed. As discussed below, this defendant’s Sixth Amendment claims squarely present the issues of whether the defendant’s Sixth Amendment right to counsel had attached when he made the incriminating statements, whether Wilda was acting as an agent of the State at the time the statements were made, and whether the defendant impliedly consented to law enforcement monitoring his conversations and thus effectively waived his rights under the Sixth Amendment.

1. October 15 & 16, 2002, Statements

The defendant argues on appeal that the incriminating statements he made to Wilda on October 15 and 16, 2002, were admitted into evidence in violation of his Sixth Amendment right to counsel. The defendant admits, as he must, that the Sixth Amendment right to counsel does not attach until “after the initiation of adversary criminal proceedings,” Maine v. Moulton, 474 U.S. at 170 , 106 S.Ct. 477 , and it is undisputed that the defendant was not indicted for offenses arising out of the murder of victims Adam and Samantha until October 23, 2002, after he met with Wilda on October 15 and 16, 2002, and told her that he “blew [the victims’] brains out.”

The defendant argues that it does not matter that he had not yet been indicted for the murders of Adam and Samantha at the time he made the October 15 and 16, 2002 statements to Wilda. He reasons that his arrest for violating the conditions of his release in the federal case rested upon the suspicion that he had engaged in foul play in the disappearance of Mr. Thomas and the victims. In that sense, he asserts, his federal arrest was factually intertwined with the murder charges. Accordingly, he contends that because he had been appointed counsel in the federal case, his right to counsel had necessarily attached *707 in this case regarding the murders of Adam and Samantha.

The defendant concedes that he did not make this argument in the trial court. In an ordinary, non-capital criminal case, arguments not first raised in the trial court are waived on appeal. Tenn. R. App. P. 36(a); State v. Hayes, 337 S.W.3d 235, 256 (Tenn.Crim.App.2010). However, Tennessee Code Annotated section 39-13-206(a)(1) requires mandatory review in capital cases. Therefore, in capital cases, when suppression issues are raised for the first time on appeal, the appellate courts will review the issue for plain error. State v. Dotson, 450 S.W.3d 1, 48-49 (Tenn. 2014), cert. denied, — U.S. —, 135 S.Ct. 1535 , 191 L.Ed.2d 565 (2015). When conducting plain error review, this Court will grant relief only when the following five prerequisites are satisfied: (1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice. Id. (citing State v. Gomez, 239 S.W.3d 733, 737 (Tenn.2007) (internal citations and quotation marks omitted)). The defendant bears the burden of persuading an appellate court that plain error exists. Id. (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn.2007)).

As noted by both of the lower courts, the Sixth Amendment right to counsel is “offense specific.” Statements obtained regarding an offense for which adversary judicial proceedings have not begun are admissible, even if they were deliberately elicited during an investigation of a separate offense for which there was a right to counsel. Texas v. Cobb, 532 U.S. 162, 173 , 121 S.Ct. 1335 , 149 L.Ed.2d 321 (2001) (holding the right to counsel is “offense specific” and does not necessarily extend to offenses that are “factually related” to those that have been charged); McNeil v. Wisconsin, 501 U.S. 171, 175 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991) (holding invocation of Sixth Amendment right to counsel is offense specific, while Miranda is not offense specific); Maine v. Moulton, 474 U.S. 159, 168 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985) (holding statements relating to the uncharged crime may be admitted). Assertion of the right to counsel for an indicted offense does not serve to invoke the right for all future prosecutions. McNeil, 501 U.S. at 176 , 111 S.Ct. 2204 . The Sixth Amendment right to counsel attaches only to offenses that, even if not formally charged, would be considered the “same offense” under the Blockburger test. Cobb, 532 U.S. at 173 , 121 S.Ct. 1335 . Blockburger defines offenses as the “same” only where neither statute requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

In this case, the pending federal charge for violating the conditions of release in New York and the Tennessee murder charges related to the victims in this case were clearly not the, “same offense” for purposes of attachment of the Sixth Amendment right to counsel. Therefore, when the defendant made his statements to Wilda on October 15 and 16, 2002, he had not been charged with the murders and the Sixth Amendment right to counsel had not attached as to those charges. Therefore, no “clear and unequivocal rule of law” was breached so as to warrant plain error relief.

2. January 1 & 3, 2003 Statements

On October 23, 2002, the defendant was indicted on the murder charges related to Adam and Samantha, so his Sixth Amendment right to counsel attached at that point. See Kirby v. Illinois, *708 406 U.S. 682, 689 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972); State v. Mitchell, 593 S.W.2d 280, 286 (Tenn.1980). Therefore, as to the defendant’s January 1 and 3, 2003 statements to Wilda, this threshold requirement is met. We must consider, however, (1) whether Wilda was acting as an agent of the State when she visited the defendant in New York on January 1, 2003, and (2) whether the defendant had impliedly consented to law enforcement monitoring his January 3, 2003 telephone conversations with Wilda during the search for the chainsaw and other evidence, thereby effectively waiving his rights under the Sixth Amendment.

First we consider whether Wilda was acting as a government agent in her visit with the defendant in New York on January 1, 2003. As noted by the Court of Criminal Appeals below, neither the United States Supreme Court nor this Court has adopted a definitive test for determining when a cooperating witness will be deemed an agent of the government for purposes of the Sixth Amendment right to counsel. The Court of Criminal Appeals cited with approval a decision by the Sixth Circuit Court of Appeals that rejected what it termed a “bright-line” test for agency adopted by'some circuits and instead held: “[A]lthough direct written or oral instructions by the State to a jailhouse informant to obtain evidence from a defendant would be sufficient to demonstrate agency, it is not the only relevant factor. A court must also analyze the facts and circumstances of a particular case to determine whether there exists an express or implied agreement between the State and the informant at the time ’ the elicitation took place that supports a finding of agency.” Willis, 2015 WL 1207859 , at *64 (quoting Ayers v. Hudson, 623 F.3d 301, 311-12 (6th Cir.2010)) (footnotes omitted). Our Court of Criminal Appeals went on to hold that Wilda was acting as an agent of the State at the time of her January 1, 2003 meeting with the defendant in New York, and that the statements the defendant made to Wilda in that meeting violated the defendant’s Sixth Amendment right to counsel and should have been suppressed. Willis, 2015 WL 1207859 , at *65.

The majority of federal circuits have adopted a version of the so-called “bright-line” test for determining whether an informant was acting as an agent of the government at the time the incriminating statements were elicited. Under this test, regardless of whether a particular informant had cooperated with law enforcement in the past, the defendant must offer proof that law enforcement instructed or requested the informant to obtain information from this particular defendant in order for the informant to be deemed a government agent relative to incriminating statements made thereafter by the particular defendant to the informant. The First, Second, Fourth, Seventh, Eighth, Eleventh, and District of Columbia Circuits, have either expressly adopted a “bright-line” test or have opined in a manner that is consistent with it. See, e.g., United States v. McFadden, 187 Fed.Appx. 290, 294 (4th Cir.2006) (holding that for agency, government must have directed informant to elicit incriminating statements from defendant); United States v. LaBare, 191 F.3d 60, 65-66 (1st Cir.1999) (“Where the government asks a jail mate to report incriminating statements by anyone but has in no way focused the jail mate’s attention on an individual defendant, it is a stretch to describe the jail mate’s inquiries of the defendant as government interrogation.”); Moore v. United States, 178 F.3d 994, 999 (8th Cir.1999) (holding that informant becomes government agent only when informant has been instructed by law enforcement to get information about the particular defendant); United States v. Birbal, 113 F.3d 342, 346 (2d Cir.1997) (stating that where informant’s coopera *709 tion agreement with government did not require him to elicit information from any particular defendant, “the Sixth Amendment rights of a talkative inmate are not violated when a jail mate acts in an entrepreneurial way to seek information of potential value, without having been deputized by the government to. question that defendant”); United States v. D.F., 63 F.3d 671 , 682 n. 16 (7th Cir.1995) (finding that central question to be whether government directed informant to get incriminating information from the defendant); Stano v. Butterworth, 51 F.3d 942, 946 (11th Cir. 1995) (finding jailhouse informant with cooperation agreement is not government agent where informant received no instruction from law enforcement to do anything regarding the defendant); United States v. Watson, 894 F.2d 1345, 1347 (D.C.Cir. 1990) (“We join the circuits that have expressly ‘refuse[d] to extend the rule of Massiah and Henry to situations where an individual acting on his own initiative, deliberately elicits incriminating information”); see also, United States v. Corona, 2008 WL 114989 , at *9 (E.D.Tenn. Jan. 10, 2008) (gathering cases). Regardless of whether a given jurisdiction applies a “bright-line” test for agency, the various jurisdictions generally agree upon “one common principle: ‘to qualify as a government agent, the informant must at least have some sort of agreenient with, or act under instructions from, a government official.’ ” Parsons v. State, 2016 WL 552189 , at *2 (Tex.App.-Corpus Christi Feb. 11, 2016) (quoting Manns v. State, 122 S.W.3d 171, 183 (Tex.Crim.App.2003)) (gathering cases).

In considering whether Wilda was acting as a government agent on January 1, 2003, the Court of Criminal Appeals stated that, “Because ‘[djirect proof of the State’s knowledge will seldom be available,’ [a] defendant ‘must only present evidence that ‘the State must have known that its agent was likely to obtain incriminating statements from the accused in the absence of counsel.’ ” Willis, 2015 WL 1207859 , at *64 (quoting Moulton, 474 U.S. at 176 n. 12, 106 S.Ct. 477 ). 19 To the extent that this statement suggests that the defendant may establish that an informant was a government agent by a mere showing that the State "must have known that its agent was likely to obtain incriminating statements” from the defendant without counsel present, we respectfully disagree. We must reject any test that would deem an informant to be a government agent simply because the government was aware or “must have known” that the informant would likely receive incriminating statements from the defendant. As explained below, such a test would be at odds with basic principles of agency and inconsistent with the analysis of the majority of courts.

“Traditional principles of agency help determine government agent status.” United States v. Li, 55 F.3d 325, 328 (7th Cir.1995) (Sixth Amendment right to counsel). An agency relationship arises *710 when the principal manifests assent or intention to have an agent act on its behalf and subject to its control, and the agent consents to do so. United States v. Al dridge,, 642 F.3d 537, 541 (7th Cir.2011) (Fourth Amendment search); see also United States v. Alexander, 447 F.3d 1290, 1295 (10th Cir.2006) (citing “traditional in-dicia of agency”) (Fifth Amendment). “The defendant bears the burden of proving agency, based on all the circumstances.” Aldridge, 642 F.3d at 541 ; see also Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 653 (Tenn.2009) (“The burden of proof rests with the party asserting the agency relationship.”).

A review of case law from other jurisdictions indicates 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, in the form of 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. See, e.g., Fairbank v. Ayers, 632 F.3d 612, 622 (9th Cir.2011) (finding inmate _ to whom defendant made incriminating statements was not a state agent because law enforcement had not asked him to solicit information from defendant), amended by 650 F.3d 1243 (9t

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