Petition — Tennessee v. Berry

_ Bupreme Court, U. &,

FILED

} APR 4 1980

©

| | MICHAEL BODAK JR, CLERR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. %9-1555

STATE OF TENNESSEE,

Petitioner,

vs.

RUSSELL KEITH BERRY,

Respondent.

_ PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF TENNESSEE

WILLIAM M. LEECH, JR.

Attorney General & Reporter

RoBERT Louis JOLLEY, Jr.

Senior Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-3169

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

Page

COG NOD ok. nn ccsaces seins canecesaennes 1

fn ee emery ry yr 2

CE FING | oon oo tien die we enanenaneh 2

Constitutional Provisions Involved ..............+++: 2

Statement of the Case ...... teen cece n eee cereeeeeees 3

Reasons for Granting the Writ ...........ccccccecees 10

fe PPPOTT Tee eee 14

pT POTEET Te Te TT ee ee A-1

CITATIONS

Cases:

Brewer v. Williams, 430 U.S. 387 (1977) ............-. 1]

Grieco v. Meachum, 533 F.2d 713 (ist Cir. 1976), cert.

denied sub non Cassesso v. Meachum, 428 U.S.858

CUE odcik oesudetdncsdepenaeess ease ewneees 12,13

Hoffa v. United States, 385 U.S. 293 (1966)........... 12,13

Massiah v. United States, 377 U.S. 201 (1964) ........ 6,10.11

Miller v. California, 392 U.S. 616 (1968) ............. 7

Milton v. Wainwright, 407 U.S. 371 (1972) ........... 6

State v. Innis, 391 A.2d 1158 (R.I. 1978), cert. granted,

Rhode Island v. Innis, 440 U.S. 934 (1978) (No.

po PPP T CTT Peer er Ve 7

ii

United States v. Barfield, 461 F.2d 661 (5th Cir. 1972).. 14

United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977),

cert. denied, 435 U.S. 1000 (1978)............... 13

United States v. Henry, 590 F.2d 544 (4th Cir. 1978),

cert. granted, 100 S.Ct. 45 (1979) (No. 79-121) .... 7,11

Weatherford v. Bursey, 429 U.S. 545 (1977) .......... 12

Wilson v. Henderson, 584 F.2d 1185 ee 11,12

Constitutional and Statutory Provisions

United States Constitution

Sixth Amendment ........................ 2,10,12,13,14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

STATE OF TENNESSEE,

Petitioner,

vs.

RUSSELL KEITH BERRY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF TENNESSEE

The petitioner State of Tennessee respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the Supreme Court of the State of Tennessee entered in this pro-

ceeding on January 7, 1980.

OPINIONS BELOW

The opinion of the Supreme Court of Tennessee (App., infra,

A-1 - A-29) is reported at 592 S.W.2d 553. No written opinion

was rendered by the trial court.

ae on

JURISDICTION or

The opinion and judgment of the Supreme Court of Tenn-

essee were entered on January 7, 1980. This petition is timely

filed within ninety (90) days of that date. Jurisdiction is invoked

pursuant to 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Whether respondent’s right to counsel was violated by the

admission of statements he made in the course of general con-

versation with a cellmate, an undercover agent of the T.B.I,

who was not instructed to question the respondent on the of-

fense for which he was incarcerated.

2. Whether respondent’s right to counsel was violated by the

admission of statements which constituted the commission of a

separate offense and which were made in the course of general

conversation with a cellmate, an undercover agent of the T.B.I.,

who was placed in the cell to investigate that offense.

3. Whether respondent’s right to counsel was violated by the

admission of statements which he made during a conversation

with his wife and which were overheard by a celimate, an under-

cover agent of the Tennessee Bureau of Investigation.

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the

right ... to have the assistance of counsel for his defense.’’

Fourteenth Amendment

Section 1: ‘‘... nor shall any State deprive any person of life,

liberty, or property, without due process of law ...”’

un ick

STATEMENT OF THE CASE

On February 9, 1978, John Harvey Shanks, the aged and

retired father-in-law of the respondent, was brutally assaulted

and beaten to death with a ball peen hammer, in the basement

of his farmhouse in a rural section of Greene County, Tenn-

essee. Approximately an hour or an hour and a half later, his

wife Zelma P. Shanks was savagely attacked and seriously in-

jured upon arriving at her residence. After at*empting to deter-

mine whether she was alive by burning various parts of her body

with a cigarette, her assailants left her for dead. Approximately

twenty-four hours later the bodies of Mr. Shanks and his wife,

who survived this assault, were discovered. As a result of a

‘thighly professional and superbly proficient investigation con-

ducted by the District Attorney General and his staff, along

with the Tennessee Bureau of Investigation, particularly Agent

Bob Baird, whose investigative activities were painstakingly ef-

fective,’’ the prosecution focused upon the respondent, the

twenty-six year old son-in-law of the victims, an individual with

some college education, including one course in criminal law

taught by his aitorney. (Tr. 539).

On April 17, 1978, a presentment for first degree murder was

returned against the respondent. On that same day the District

Attorney General requested David Rhea, an Agent of the Tenn-

essee Bureau of Investigation (hereinafter T.B.1.) to meet with

Agents Bob Baird and Bob Denney of the T.B.I. and Sheriff

Colyer of Greene County for the purpose of formulating a

charge upon which Rhea might be placed in jail along with the

respondent in order to determine whether respondent was tak-

ing any action to kill Agent Baird. All of these law enforcement

officers were aware or made aware of previous threats made by

the respondent toward Agent Baird. (Tr. 49, 532, 536). It was

determined that Rhea would be charged with drunken driving,

possession of marijuana, and going armed, with a hold placed

on him from Kentucky for armed robbery. An article was plac-

—

ed in the local newspaper. Rhea entered the jail as Michael

David Turnblazer at 3:00 p.m. on April 18, 1978.

On April 18, 1978, the respondent was arrested, on a capias,

in Nashville by Sheriff Gale Colyer of Greene County and

Agents Baird and Denney. When Agent Baird placed respon-

dent in the car at Nashville for transporting to Greene County,

the respondent said he wished to call an attorney. The agent

drove him to a building where respondent made a phone call.

(Tr. 535-536). Shortly thereafter, his attorney Jim Bowman had

a conversation with the Sheriff.' The respondent was then

driven to Greene County where he was incarcerated.

' On questioning by Attorney Bowman, Sheriff Colyer testified

concerning his recollection of this conversation:

*““A: Yes sir, I believe you identified yourself as Jim

Bowman, his attorney, to me on the telephone.

Q: And as a result of that do you recall the agreement that he

would not be questioned?

A: Yes, I agreed—I believe that I told you that he wasn’t go-

ing to question him-that we wasn’t questioning him at that time,

I believe.

Q: You were not questioning him?

A: Right.

Q: And I further requested that as soon as you got to Greene

County that he be afforded an opportunity to contact me or that

you let me know that he was down here, and I believe you either

did that or had it done late that afternoon?

A: Yes, sir, I believe you were notified, sir.

Q: Did you relat to the officers that were with you either at

that moment or as you went along the fact, that Mr. Berry had

an attorney and indicated he did not desire to be questioned?

A: I don’t specifically remember discussing it with Agent

Baird. I believe—I told Agent Baird that you had called, I

believe, and I don’t remember if I actually told him that you

didn’t want him questioned at that time, or not.’ (Tr. 530-531).

sok ae

T.B.I. Agent David Rhea testified that he was placed in jail,

under an assumed name, posing as a prisoner, ‘‘to determine

what, if any action, Russell Berry was taking as far as taking the

life of Bobby Baird.’’ As soon as respondent entered the cell, he

started talking. After about two hours respondent stated that he

would like to have Agents Baird and Denney killed and was will-

ing to pay a price. He asked whether Rhea knew anyone who

would kill the agents. Rhea agreed to kill these individuals if

there was enough money in it. After further discussion, they

agreed on a price of $5,000 for each agent. The deed was to be

accomplished before the following Monday, the date of respon-

dent’s bond hearing, because respondent felt that the prosecu-

tion’s case would collapse without these men’s testimony.

Respondent stated that these two agents knew more about his

case than anyone and the way to win cases was to ‘‘eliminate

witnesses.’’ The respondent suggested different schemes for kill-

ing these witnesses, including the use of dynamite or a sawed off

shotgun and a motorcycle. He enumerated previous oppor-

tunities when he should have killed Baird but did not. Respon-

dent gave Rhea an exact, detailed description of Baird and Den-

ney and the vekicles they drove. He pointed out Baird to Rhea

once when Baird stopped into the cell block and once when

Baird’s picture appeared in the paper.

Rhea told respondent that he had contacted his girlfriend and

had mentioned to her that they could make some money. In due

course, Rita Sisson, another agent for the T.B.I., came to the

jail where she was introduced to respondent as Rhea’s

girlfriend. The respondent and Ms. Sisson talked some fifteen

to twenty minutes about the details and plans for the murder of

the two agents. They agreed for the respondent to produce $500

front money.

While Rhea was incarcerated with respondent, respondent’s

wife, Robin Berry, came to the jail. Rhea overheard the conver-

sation between the respondent and his wife. Respondent begged

—_— po

her for a gun but she refused unless and until he was convicted.

On two or three occasions during her visits he asked her for $500

and told her that he had hired Rhea to kill Agent Baird.

During a visit by respondent’s wife after they had discussed

the ‘’front money,’’ she stated to respondent that she had

checked all their bank accounts and advised respondent that

they had no money. Respondent admitted he had lied to her

about various monetary affairs and further admitted to her that

he had lied about his employment. He also threatened his

brother Todd during these conversations, saying he should keep

his mouth shut or he [respondent] would kill him.

Agent Rhea was not instructed to talk with respondent about

the Shanks killing. (Tr. 65). During the various conversations

with Rhea, however, respondent made damaging admissions

concerning the murder of his father-in-law. Respondent was try-

ing to sell Rhea ‘‘as if [Rhea] was a jury.”’ (Tr. 65). He discussed

various portions of the proof against him and outlined his alibi

defense. He discussed the ball-peen hammer but said he was not

concerned about this because it was not listed on the search war-

rant and thus could not be used in court. He discussed various

details about the events of February 8, 1978, but stopped short

of a direct admission of guilt.

On August 22 and 23, 1978, prior to trial, the trial court heard

the respondent’s motion to suppress all ‘‘jailhouse statements’’

based upon Massiah v. United States, 377 U.S. 201 (1964), and

Milton v. Wainwright, 407 U.S. 371 (1972). Upon considering

the testimony presented to him, the trial court found that the

statements were voluntarily made as a result of spontaneous

casual conversation; that there was no interrogation; and that

the T.B.I. agent was a stranger in whom the defendant could

not expect to put his confidence. The trial court also found that

the T.B.I. agent was placed in the cell under a false record after

law enforcement officials had arrested the defendant on the in-

dictment and after they were aware that the defendant had an

— Pe

attorney, and that the agent ‘‘went into the celi not for the pur-

pose apparently of obtaining a statement as to the element of

the crime’’ but for ‘‘the stated purpose of determining what, if

any harm was in the making to prosecuting witnesses in the

case.’’ (Tr. 556-558). The court distinguished Massiah, finding

that these jailhouse statements were admissible ‘‘on the fact that

the evidence is that the T.B.I. agent was placed in the cell for the

purpose of protecting witnesses, and not for obtaining

statements, that the statements that resulted were voluntary.

The statements made by the defendant, not under interrogation,

but in casual conversation, many of which were volunteered by

him.’’ (Tr. 585).

These jailhouse statements, including testimony of conversa-

tions between the defendant and the undercover T.B.I. agent

and conversations between the defendant and his wife,

overheard by the undercover agent, were admitted into evidence

at the defendant’s trial for first degree murder through the

testimony of David Rhea and Rita Sisson. The jury, after hear-

ing all of the evidence, found the defendant guilty of murder in

the first degree. After considering further evidence at the

sentencing hearing, the jury sentenced the respondent to death.

On appeal, the Supreme Court of Tennessee reversed and set

aside the trial court’s ruling on the admissibility of all jailhouse

statements of the respondent. The court found that all

statements made by the respondent were voluntary. (App. at

A-7). Relying on State v. Innis, 391 A.2d 1158 (R.I. 1978),

cert. granted, Rhode Island v. Innis, 440 U.S. 934 (1978) (No.

78-1076); United States v. Henry, 590 F.2d 544 (4th Cir. 1978),

cert. granted, 100 S.Ct. 45 (1979) (No. 79-121); and Mr. Justice

Marshall’s dissent from the dismissal of certiorari in Miller v.

California, 392 U.S. 616 (1968), the Court found that the mere

presence and general conversation of a government agent while

in the respondent’s cell constituted ‘‘interrogation’’ forbidden

by the Sixth Amendment. (App. at A-18).

— 2

The Court reached ten factual conclusions on the basis of the

record:

“*(1) that defendant was indicted for first degree murder;

(2) that he was given Miranda warnings;

(3) that he employed counsel;

(4) that the law enforcement officials knew he was

represented by counsel;

(5) that he was confined in the Greeneville City Jail;

(6) that Agent Rhea of the Tennessee Bureau of Investiga-

tion, posing as a captured felon, was placed in the jail with

him;

(7) that defendant, believing him to be a ‘tough

character,’ and not having any idea or suspicion of his true

identity, initiated a conversation with him;

(8) that during the course of this conversation numerous

incriminating statements were made;

(9) that Rhea did not interrogate him in the conventional

sense, but did engage in general conversation during the

course of which he asked questions and received answers;

and

(10) that there was no waiver of his right to counsel.”’

(App. at A-17).

Upon these conclusions, the Supreme Court of Tennessee held

that ‘‘Trial Judge erred in failing to suppress the testimony of

the Tennessee Bureau of Investigation agents relating to the

jailhouse conversations and statements relating to this case, to

—— po

include threats made against witnesses and plans for their exter-

mination.’’ (App. A-18).’

In reaching its conclusion that all jailhouse statements were

inadmissible, the Supreme Court of Tennessee specifically held

‘*we predicate this holding on the Sixth Amendment of the Con-

stitution of the United States made applicable to the states by

the Fourteenth Amendment.’’ The court relied only on the

Federal Constitution as interpreted by various federal and

Rhode Island decisions. There are not valid, independent state

grounds for the decision reached by the court.

2 Additionally, the Supreme Court held that Sheriff Gale Colyer of

Greene County had promised the defendant’s counsel and the defen-

dant that the defendant would not be interrogated. (App. at A-18).

This question was not specifically raised in the trial court. The only

support in the record for such a conclusion is the testimony of Sheriff

Colyer, supra at p. 4, n. 1, in which the Sheriff indicates he prom-

ised not to question the respondent on the trip back from Nashville.

This promise was honored. (Tr. 532). Respondent’s understanding

after his cuaversation with attorney Bowman was that after telling the

officers he was represented by Bowman, ‘“‘I was not supposed to talk

to them.’’ (Tr. 538). Respondent was fully aware of his rights, in-

cluding the right to counsel. (Tr. 540-541).

—_— we

REASONS FOR GRANTING THE WRIT

In Massiah v. United States, 377 U.S. 201 (1964), this Court

concluded that statements obtained through interrogation, in

the absence of counsel, of a defendant facing criminal charges

could not be admitted at his trial without violation of the Sixth

Amendment right to counsel. The proper application of this

rule is of paramount importance to law enforcement officers in

two contexts: what limitation does the right to counsel involve

on inculpatory statements made by defendants while in jail

awaiting trial and what limitation does the right to counsel in-

volve on any governmental contact with an individual in jail

awaiting trial.

In the instant case, the Supreme Court of Tennessee was

faced with three separate factual situations involving the right to

counsel. First, whether mere association or general conversation

between cellmates constitutes interrogation with the Massiah

proscription; second, whether law enforcement officials are

precluded from investigating the commission of other offenses

by the respondent while he is represented by counsel and in-

carcereted on a separate offense; and third, whether mere place-

ment of a government agent in a cell in which he overhears con-

versations, including inculpatory statements, between the

respondent and his wife violates respondent’s right to counsel.

The Supreme Court of Tennessee, enforcing a per se rule based

on respondent’s Sixth Amendment right to counsel, held that ail

statements obtained by a government agent in a jai! cell with

respondent were inadmissible no matter what factual context

was involved.

The decision of the Supreme Court of Tennessee conflicts

with the decisions of this Court and Federal courts of appeal

which have faced these issues. It thus throws substantial doubt

as to whether any governmental contact is allowable either

through informants or government agents after the right to

counsel has attached. This case affords the Court an opportuni-

a |

ty to clarify this important area of constitutional law involving

the relationship between governmental investigation and the

defendant’s right to counsel.

1. The issue of whether mere association or general conversa-

tion between cellmats constitutes ‘‘interrogation’’ within the

proscription of Massiah is presently pending before this Court

in United States v. Henry, 590 F.2d 544 (4th Cir. 1978) cert.

granted, 100 S.Ct. 45 (1979) (No. 79-121). The Supreme Court

of Tennessee relied on the opinion of the Fourth Circuit Court

of Appeals in that case in reaching its conclusion in the instant

case that mere association and general conversation were suffi-

cient to be interrogation forbidden under Massiah.

As the United States Government pointed out in its Petition

for Writ of Certiorari in United States v. Henry, that holding is

not supported by this Court’s opinion in Brewer v. Williams,

430 U.S. 387 (1977), which summarized the holding in Massiah:

‘‘(T]he clear rule of Massiah is that once adversary proceedings

have commenced against an individual, he has a right to legal

representation when the government interrogates him.’’ (id. at

401; footnote omitted). But ‘‘no such constitutional protection

would have come into play if there had been no interrogation’”’

(id. at 400). In Williams, the State of Nebraska conceded that

the ‘‘Christian burial speech’’ constituted interrogation. (id. at

399-400 n. 6). Nothing in the Court’s opinion suggests that mere

association or general conversation constitutes interrogation.

As the Government also points out in its Petition for Writ of

Certiorari in United States v. Henry, on very similar facts, the

Second Circuit Court of Appeals recently held, in Wilson v.

Henderson, 584 F.2d 1185, 1190-1191 (1978), that statements

made by a defendant to a cellmate turned informant were not

the product of interrogation. The court in Wilson contrasted

the deliberate efforts in Brewer to elicit statements with the

cellmate’s function in Wilson which was to listen to any

es. pe

statements which might be made. The court correctly concluded

that the behavior of the investigating agent in Wilson was

wholly proper. That conclusion is applicable to the instant case

where the cellmate was not instructed to question respondent

about this offense or to initiate conversations on the subject.

2. The government has a right to investigate the commission

of other offenses, particularly where they represent potential

violent harm to other citizens. In Hoffa v. United States, 385

U.S. 293 (1966), this Court established that the pendency of an

indictment does not immunize a defendant from accountability

for statements made in the commission of another crime, even

though made to a government agent, in the absence of counsel.

The use of a government informer to obtain evidence of another

crime does not violate the Sixth Amendment right to counsel as

long as the privacy between the accused and his counsel is not

compromised. See Hoffa v. United States, 385 U.S. at 308-309.

See also Weatherford v. Bursey, 429 U.S. 545 (1977). In the in-

stant case, the privacy between the accused and his counsel was

not compromised.

The decision of the Supreme Court of Tennessee, holding the

statements concerning solicitation to commit murder and con-

cerning escape is contrary to the holding of the United States

Court of Appeals for the First Circuit in Grieco v. Meachum,

533 F.2d 713 (Ist Cir. 1976), cert. denied, sub non Cassesso v.

Meachum, 428 U.S. 858 (1976). In Grieco, the Court of Appeals

held that statements uttered in the commission of another

substantive offense, subornation of perjury, were admissible at

the trial of the offense for which the defendant was in-

carcerated. The court of Appeals found that the exclusion of

relevant, otherwise admissible, testimony is a remedy for past

violations of the Constitution. Relying on Hoffa, the Court of

Appeals correctly held that Cassesso’s constitutional rights were

not violated in obtaining the information on the other substan-

tive offense as long as the government was in good faith in-

vestigating a separate offense. Cassesso should have been under

on Sia

no misapprehension that the statements he made could not be

used against him at least in the trial for the separate substantive

offense. Such a conclusion is equally applicable to respondent

in the instant case. Agent Rhea was investigating threats against

Agent Baird. His investigation resulted in the indictment of the

respondent for solicitation to commit murder. The respondent

should have been under no misapprehension on the admissibili-

ty of statements made to this stranger concerning separate of-

fense.

The Court of Appeals in Grieco found no basis under the

Sixth Amendment for not using such statements as relevant

evidence on a pending indictment. As the Court stated:

‘‘Had his counsel been present, he would have been ad-

vised to refrain - not because the statements would have

shown a consciousness of guilt of complicity in Diggins

murder, but because his statements, themselves, were the

operative acts of a separate criminal offense.’’ 533 F.2d at

718.

Application of the Sixth Amendment to this factual situation by

the Supreme Court of Tennessee violates the logic of Hoffa

which allows investigation of other separate offenses. The right

to counsel under these factual circumstances has no valid shield

function. It only protects the guilty from the introduction of

highly relevant and otherwise admissible evidence.

3. The Supreme Court of Tennessee’s decision that conversa-

tion between respondent and his wife overheard by the under-

cover agent is admissible is contrary to the holding of the United

States Court of Appeals for the Ninth Circuit in United States v.

Hearst, 563 F.2d 1331, 1347-48 (9th Cir. 1977), cert. denied, 435

U.S. 1000 (1978). In that case, the Court of Appeals held that

security monitoring of a conversation between the inmate and

her visitor was insufficient to create a Sixth Amendment viola-

tion. The presence of Agent Rhea in the respondent’s cell

ios Oh we

should not make any constitutional difference since if Agent

Rhea had been in the cell next to resondent and had overheard

him make incriminating statements, no Sixth Amendment viola-

tion would have occurred. The same would have been true if the

accused had made a statement that a prison guard happened to

overhear. See e.g. United States v. Barfield, 461 F.2d 661 (Sth

Cir. 1972). The conclusion of the Ninth Circuit in this regard is

correct. There is no legal basis for the Supreme Court of Tenn-

essee to transform respondent’s right to counsel into a complete

shield for his conduct subsequent to the time that the right to

counsel has attached.

CONCLUSION

For the reasons stated herein, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

William M. Leech, Jr.

Attorney General & Reporter

Robert L. Jolley, Jr.

Senior Assistant Attorney General

APPENDIX

a el

IN THE SUPREME COURT OF TENNESSEE

AT

KNOXVILLE

January 7, 1980

For Publication

State of Tennessee, ‘

Appellee On Direct Appeal From

the Criminal Court At

Vv. | Greeneville.

Honorable James E.

Russell Keith Berry Beckner, Judge.

Appellant.

For Appellant For Appellee

James T. Bowman William M. Leech, Jr.

Johnson City The Attorney General

Robert L. Jolley, Jr.

Assistant Attorney General

Nashville

Heiskell Winstead

District Attorney General

Rogersville

John K. Wilson

Larry Weems

Assistant District Attorneys General

Greenville

OPINION

(Filed January 7, 1980)

REVERSED & REMANDED HENRY, J.

a yer

This conviction for murder in the first degree with penalty

fixed at death by electrocution is before the Court by direct ap-

peal pursuant to Section 23-2406, T.C.A. We reverse and

remand.

I.

General Background

This murder was marked by shocking and savage brutality. It

was described by the Trial Judge as ‘‘one of the most brutal

crimes this judge has ever encountered,”’ and by the jury as be-

ing ‘‘especially heinous, atrocious, cruel, and it involved torture

and depravity of mind.’’

On February 9, 1978, at approximately four o’clock in the

afternoon, John Harvey Shanks, the aged and retired father-in-

law of the defendant, was brutally attacked and killed with a

ball-peen hammer, in the basement of his farm home in the

Green Shed Community in the Fall Branch area of Greene

County. Approximately an hour or hour and a half later his

wife, Zelma P. Shanks, defendant’s mother-in-law, upon arriv-

ing at her residence, wa: savagely attacked and seriously in-

jured. After attempting to determine that she was not alive by

burning various parts of her body with a cigarette, her

assailant[s] left her for dead. Approximately twenty-four hours

later the bodies were discovered. Zelma P. Shanks was hospi-

talized and recovered to the extent that she testified for the

defendant at the trial.

The defendant’s wife, Robin Shanks Berry, is the only child

of John H. and Zelma P. Shanks. She holds a bachelor of

science degree from East Tennessee State University, is a

registered nurse, and, at the time of the trial, was a student at

Vanderbilt University as a candidate for a master’s degree.

— * yor

The defendant was twenty-six years of age at the time of the

crime and had attended East Tennessee State University for

about a year and a half. He had no regular employment. A con-

trary representation to the investigating officers was determined

to be untrue. By his own admission he was trafficking in contra-

band drugs. There is a rather strong suggestion in the record

that he killed his own mother and father and, thereafter, burned

their residence in order to collect fire insurance proceeds. He

was under indictment for arson at the time of the trial. He was

also under indictment for solicitation of the offense of murder

in the first degree.

There is no suggestion that defendant suffers from insanity or

from any form of diminshed responsibility.

Two broad generalizations are evident. First, it is apparent

that the Shanks family were property owners and people of

some means. While not wealthy they were what is commonly

described as ‘‘well-to-do’”’ rural people of community standing.

Secondly, it is obvious that the Shanks’ money and property,

and the defendant’s impecuniosity, bear heavily upon this tragic

occurrence.

This prosecution focused upon the defendant as a result of

the highly professional and superbly proficient investigation

conducted by the District Attorney General and his staff, along

with the Tennessee Bureau of Investigation, particularly Agent

Bob Baird, whose investigative activities were painstakingly

effective.

Il.

The Jailhouse Statements of the Defendant

A major issue revolves around the admissibility of certain ad-

missions, confessions, and statements made by the defendant

after indictment, while in Greeneville City Jail, to a member of

the Tennessee Bureau of Investigation posing as a prisoner.

nag on

As a prelude to a discussion of this issue, the time sequence

becomes important. A search warrant was executed on March

31, 1978. During the course of the search the defendant handed

Agent Baird a letter signed by his counsel advising of his right to

have an attorney present during any conversations with the

police and giving other appropriate advice to his client.

On April 17, 1978, the presentment was returned. On that

same day the District Attorney General requested Agent David

Rhea of the Tennessee Bureau of Investigation to meet with

Agent Baird, Sheriff Colyer of Greene County, and Agent Den-

ny of the Tennessee Bureau of Investigation for the purpose of

formulating a false charge upon which he might be placed in jail

along with the defendant. It was determined that he would be

charged with drunken driving, possession of marijuana, going

armed, with a hold for armed robbery in Kentucky. A news-

paper story was planted in the local newspaper, and Rhea

entered the jail as Michael David Turnblazer. He was actually

confined on April 18, 1978.

Also on April 18, 1978, the defendant was arrested, on a

capias, in Nashville by Sheriff Gale Colyer of Greene County

and Agents Baird and Denny. While still in Nashville, and im-

mediately following the arrest, counsel for the defendant called

Sheriff Colyer by long distance, advised him that he represented

the defendant and requested that he not be questioned. The

Sheriff agreed and promised that he would not be questioned.

This was one day after the Sheriff had participated in the plan-

ning conference and after it had been determined that a TBI

agent, posing as an accused criminal, would be placed in the

Greeneville City Jail along with defendant. To say the least the

Sheriff was somewhat less than candid about the matter, lulling

Lawyer Bowman into a false sense of security.

Thus it was that the ruse of placing a TBI agent, posing as a

criminal, in jail with the defendant, occurred after defendant

had been indicted, after his custodians knew he was represented

——

by counsel and after defendant’s counsel had been promised

there would be no interrrogation, and while defendant was

secure in the knowledge that he would not be interrogated.

David Rhea, the TBI agent, testified that he was placed in

jail, under an assumed name and posing as a prisoner, ‘‘to

determine what, if any action, Russel Berry was taking as far as

taking the life of Bobby Baird.’’ The trial court found that the

agent had gone into the cell, not for the purpose of inter-

rogating defendant or of obtaining a statement about this par-

ticular crime, but to determine what harm was in the making for

the prosecution witnesses. This is the theory of the State.

Substantial effort was made to prove threats against Agent

Baird. We find scant proof of any threat made to or about

Agent Baird. Indeed there is no testimony of any direct threat

except to sue for slander. During the course of the trial Agent

Baird represented to the court that several persons had com-

municated threats to him. He declined to reveal their identity.

The Trial Judge directed him to submit to the court “‘the names

of those persons who tell you about the threats made.”’ The sub-

mission made by Agent Baird, pursuant to those instructions,

appears in this record in a sealed envelope.

Examination reveals that the identity of a single person was

disclosed - Mrs. Clyde Phillips, a sister of Zelma Shanks. No

direct statement is attributed to her. The statement simple

recites she is ‘‘very apprehensive about actions toward her by

defendant Keith Berry.’’ It is noteworthy that Mrs. Phillips

testified as a witness for the State and nothing in her testimony

touches upon this assertion.

Assuming arguendo that the meager proof presented a

reasonable ground for belief that the defendant would inflict

death or some bodily harm upon Agent Baird or any other wit-

ness - and overlooking the fact that he did not do so from the

time of the murder on February 8, 1978, until his incarceration

on April 18, 1978, more than two months later - the validity of

—=~ oo

the action of the State in placing a law enforcement officer, pos-

ing as a prisoner, in the cell with defendant is not thereby

established. The testimony of the agent may or may not be com-

petent in the context of another trial on another charge, e.g.,

solicitation to commit murder or arson, but it is not admissible

in this trial. Further, assuming the statements made by the

defendant to have been voluntary, as found by the Trial J udge,

and as insisted by the State, they do not necessarily become ad-

missible. See infra.

Agent Rhea testified that as soon as defendant entered the cell

he started talking. After about two hours he stated that he

would like to have Agents Baird and Denny killed and was will-

ing to pay a price. ‘‘Turnblazer’’ offered to kill these two in-

dividuals ‘‘if there was enough money in it.’’ After further

discussion they agreed on a price of $5,000.00 each. The deed

was to be accomplished before the following Monday because

this was the date of the bond hearing. Defendant stated that

these two agents knew more about the case than anyone and the

way to win was to “‘eliminate witnesses.’’

Defendant suggested the use of dynamite as a good way to

eliminate Baird.

As a part of the conversation, ‘‘Turnblazer’’ told defendant

that he had contacted his girl friend and had mentioned to her

that they could make some money. In due course, Rita Sisson,

another agent for the TBI, showed up at the jail and was in-

troduced to defendant as Turnblazer’s girl friend. They talked

some fifteen to twenty minutes about the details and plans for

the murder of the two agents. They agreed on $500.00 front

money.

Still later, according to Turnblazer, defendant’s wife, Robin

Berry, came to the jail. Defendant begged her for a gun but she

refused unless and until he was convicted. On two or three occa-

sions during her visits he asked her for $500.00 and told her that

he had hired Turnblazer to kill Agent Baird.

— *

During a visit by defendant’s wife after they had discussed the

‘‘front money,”’ she stated she had checked all their bank ac-

counts and advised defendant that they had no money. Defen-

dant admitted he had lied to her about various money affairs

and further admitted to her that he had lied about his em-

ployment.

During the various conversations, defendant made numerous

damaging admissions concerning the murder of his father-in-

law. He discussed various portions of the proof against him and

outlined his alibi defense. He discussed the ball-peen hammer

but said he was not concerned about this because it was not

listed on the search warrant and could not be used in court. He

discussed various details about the events of February 8, 1978,

but stopped short of a direct admission of murder. Taken,

however, in context with the total proof, he fairly established

his guilt. He clearly established his presence in the Knoxville

area and left little doubt that he was at the Shanks’ residence the

day of the murder. ~

It is evident from this record that the statements made by the

defendant were voluntary and made while under the belief that

Turnblazer was a “‘tough character.’’ It is further evident that

they were made during the course of extended conversation in-

terspersed with questions by the agents. We see no essemtial dif-

ference between this and a normal interrogation wherein a

police officer takes a statement from one accused of crime. In-

stead of the conventional interrogation the agents listened and

carried on the conversation, interrupting from time to time to

ask questions designed to keep the conversation going and the

information flowing. As said by the Court in United States v.

Brown, 466 F.2d 493 (10th Cir. 1972):

We do not pause to discuss any purported significance as

to whether Byers obtained the information by direct ques-

tion or otherwise. Form does not control the substance in

determining the legality of interrogation and very often

ay + eon

subtlety is more effective than other methods of

coercion.”’

466 F.2d at 495

This was an interrogation. The only question is whether the

information given by the defendant while in the jail house, after

indictment, after employment of counsel, after the law enforce-

ment authorities knew of counsel’s employment and had prom-

ised no interrogation, is admissible merely because it was volun-

tarily made. We respond in the negative.

Our analysis of the legal issues must start with Massiah v.

United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199

(1964). There government agents surreptitiously recorded the

conversation of the defendant with a co-defendant, after indict-

ment, and after the employment of counsel, while the defendant

was on bail. The Court held that:

[T]he petitioner was denied the basic protections of [the

Sixth Amendment] when there was used against him at his

trial evidence of his own incriminating words, which

federal agents had deliberately elicited from him after he

had been indicted and in the absence of his counsel.

377 U.S. at 206, 12 L.Ed.2d at 250

We should note at the outset that there is a distinction be-

tween the Miranda Fifth Amendment right to counsel, which is

designed to protect against coercion, and the Massiah Sixth

Amendment right to counsel which guarantees to a criminal

defendant the right to legal assistance in any critical confronta-

tion with state officials, irrespective of coercion. Here we deal

with the Sixth Amendment.

In Hancock v. White, 378 F.2d 479 (1st Cir. 1967), the Court

was concerned with incriminating statements made to law en-

forcement officials during an automobile trip, after indictment.

At the time of the statements the defendant had not requested

= ice

counsel in the pending case. He was not interrogated; the

statements were volunteered, and no chicanery, trickery or

subterfuge was involved. The Court applied the Massiah rule,

holding that:

[T]he Massiah rule is not limited to Massiah ‘‘cir-

cumstances’’ but applies to exclude post-indictment in-

criminating statements of an accused to government agents

in the absence of counsel even when not deliberately

elicited by interrogation or induced by misapprehension

engendered by trickery or deception.

378 F.2d at 482

The case of Miller v. California, 392 U.S. 616, 20 L.Ed.2d

1332, 88 S.Ct. 2258 (1968), was decided per curiam. Because the

language of the dissent (four justices) is so appropriate to the

case at bar and because it involves the use of testimony by a

falsely booked government agent, we quote extensively:

In the State’s view, so long as Fisk acted simply as a listen-

ing post, she could testify as to any statements made to her

by petitioner. That view was, however, rejected in Massiah

itself. The Government in that case pointed to the fact that

the record did not reveal that its agent had induced the

defendant by persuasion (there based on friendship) to

discuss his activities, and urged that ‘‘providing a defen-

dant an opportunity to talk’’ did not violate his right to

counsel. See also Beatty v. United States, 389 US 45

(1967), reversing 377 F2d 181 (CASth Cir).

At all events, Fisk was not put in the cell to discuss the

weather, to console petitioner, or merely to provide her

with companionship. Her presence itself was an induce-

ment to speak, and an inducement by a police agent. While

petitioner’s statements to her were not obtained by coer-

cive means, they certainly were not given, in light of the

deception, through a knowing and intelligent waiver of

petitioner’s rights.

— A-10 —

Furthermore, it is clear on this record that Fisk was

planted in petitioner’s cell in order to subvert her right to

counsel, with the express purpose of attempting to obtain

evidence out of her mouth. On one occasion, Fisk was

given a newspaper clipping concerning the case and was

told to show it to petitioner, which she did with some ac-

companying statement, such as the press is ‘‘ruining you.”’

On another occasion, pursuant to instructions, Fisk told

petitioner of a conversation that she had supposedly over-

heard in a hall between four men whom she thought were

from the district attorney’s office, in which one of the

men, as the ruse went, said: ‘‘Getting back to the Miller

case, Arthwell Hayton came in and blew the top off the

case.’’ Fisk also told petitioner ‘‘I put all my trust in Mr.

Bland [the sheriff] and maybe it would do some good for

you if you tried the same.”’ Finally, Fisk said that she had

at one time been represented by an attorney who ‘‘did not

do me much good”’ and indicated that perhaps petitioner

should suspect hers.

Such deliberate police deception and subversion of a

defendant’s rights should not be condoned. The District

Court of Appeal said in this case:

‘*It is alomst incredible that in these days of enlightened

treatment by prosecution authorities of persons charged

with crime, the Peggy Fisk incident could have

occurred... .””

392 U.S. at 625-26, 20 L.Ed.2d at 1337-38

Miller involved pre-indictment incriminating statements. Had

the statements been made after @iictment the results, under

Massiah,.no doubt would have been different. We adopt the

reasoning of the dissent, as being applicable to the instant case.

We next discuss the landmark case of Brewer v. Williams, 430

U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977), wherein

— A-ll —

Massiah is endorsed and the Court makes it clear that the Sixth

Amendment attaches ‘‘once adversary proceedings have com-

menced.’’

[T]he clear rule of Massiah is that once adversary pro-

ceedings have commenced against an individual, he has a

right to legal representation when the government inter-

rogates him.

430 U.S. at 401, 51 L.Ed.2d at 438

The facts of Brewer v. Williams are familiar to students of

criminal jurisprudence. Briefly stated, they are that Williams

was arrested in Davenport, Iowa, after having called his lawyer

in Des Moines who advised him to surrender. He was given

Miranda warnings. The Davenport police called their counter-

parts in Des Moines and reached them while Williams’ lawyer

was still at the police station. Williams talked with his lawyer

who advised that he would be returned to Des Moines but would

not be questioned en route and he was not to talk with the of-

ficers. The lawyer agreed with the police that Detective Leaming

and a fellow officer would go to Davenport and return Williams

to Des Moines but that they would not question him.

Detective Leaming knew that Williams had a history of men-

tal difficulties and was extremely religious. On the return trip,

Leaming made his famous ‘‘Christian burial speech.’’ First, ad-

dressing Williams as ‘‘Reverend,’’ he pointed out the existing

extreme weather conditions with several inches of snow pre-

dicted, and that only Williams knew the location of the child he

was accused of killing and whose body he had hidden. Next he

pointed out that if it snowed on top of that body even Williams

would have difficulty finding it.

Then he delivered his coup de grace:

[S]ince we will be going right past the area. . . I feel that

we could stop and locate the body, that the parents of this

— A-12 —

little girl should be entitled to a Christian burial for the lit-

tle girl who was snatched away from them on Christmas

{[E]ve and murdered.

430 US at 392-93, 51 L.Ed.2d at 433

This speech had its intended effect and Williams took them to

the body.

In one fell swoop, the Supreme Court disposed of virtually all

issues:

[T]here is no need to review in this case the doctrine of

Miranda v. Arizona, a doctrine designed to secure the con-

stitutional privilege against compulsory self-incrimination,

(citation omitted). It is equally unnecessary to evaluate the

ruling of the District Court that Williams’ self-incrimi-

nation statements were, indeed, involuntarily made (cita-

tion omitted). For it is clear to us that the judgment [grant

of habeas corpus] before us must in any event be affirmed

upon the ground that Williams was deprived of a different

constitutional right - the right to the effective assistance of

counsel.

430 U.S. at 397-98, 51 L.Ed.2d at 435-36

Thus, Brewer v. Williams resets squarely on Sixth Amend-

ment grounds, and the Court makes it clear that the ‘‘Sixth and

Fourteenth Amendments mean{[s] at least that a person is enti-

tled to the help of a lawyer at or after the time that judicial pro-

ceedings have been initiated against him ‘whether by way of for-

mal charge, preliminary hearing, indictment, information, or

arraignment.’ ’’ 430 U. S. at 398, 51 L.Ed.2d at 436 (Emphasis

supplied).

Further, the Court said ‘‘[t]here can be no serious doubt,

either that Detective Leaming deliberately and designedly set

out to elicit information from Williams just as surely as -

perhaps more effectively than - if he had formally interrogated

— A-13 —

him.’’ 430 U.S. at 399, 51 L.Ed.2d at 436-37. Counsel for the

Government conceded that the Christian burial speech was

‘*tantamount to interrogation.’’ The Supreme Court agreed

with both lower courts that a form of interrogation was involved.

Moreover, the Court said ‘‘[t]hat the incriminating

statements were elicited surreptitiously in the Massiah case and

otherwise here, is constitutionally irrelevant.’’ 430 U.S. at 400,

51 L.Ed.2d at 437.

Lastly, the Court makes a pronouncement that judges having

criminal jurisdiction, at all levels, must heed:

The pressures on state executive and judicial officers

charged with the administration of the criminal law are

great, especially when the crime is murder and the victim is

a small child. But it is precisely the predictability of those

pressures that makes imperative a resolute loyalty to the

guarantees that the Constitution extends to us all. (Em-

phasis supplied).

430 U.S. at 406 41 L.Ed.2d at 441

Two cases decided by the Supreme Court of Rhode Island are

of significance. The first, State v. Travis, 360 A.2d 548

(R.1.1976), involved a statement surreptitiously obtained by an

undercover police officer. Defendant was arrested, given a

Miranda warning and refused to make any statement, advising

that he wished to consult with an attorney. Shortly thereafter,

an undercover police officer entered his cell, dressed in ‘‘mod-

type’’ clothing and wearing a beard and having very long hair.

The defendant talked, and subsequently he was indicted.

In reversing the conviction the Court used the following

significant language:

We attach no significance as to whether the agent in the

cell asked questions of the duped defendant or not. United

States v. Brown, 466 F.2d 493, 495 (10th Cir. 1972); Han-

—_ se

cock v. White, 378 F.2d 479, 482 (1st Cir. 1967). To allow

into evidence admissions made to an agent in the cell who

made casual conversation with a defendant while carefully

avoiding any questions regarding the specific crime under

investigation, but to disallow that agent’s testimony if he

asked a question pertaining to a defendant’s reason for be-

ing incarcerated, would be to play games with an in-

dividual’s constitutional guarantees. This we will not do.

The mere presence of Langlois was an inducement to

speak, and an inducement by a police officer. We see no

significant difference between a uniformed police officer

asking questions of defendant and Langlois’ presence in-

side the cellblock with defendant. There was no knowing

and intelligent waiver by defendant of his constitutional

rights and one will not be presumed lightly. Johnson v.

Zerbst, 304 U.S. 548, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

The undercover agent’s ruse amounted to proscribed **fur-

ther interrogation.”’

The police were not allowed to interrogate defendant

directly. There is no authority in these circumstances for

the police to do indirectly what they may not do directly.

United States v. Brown, supra at 495; State v. Smith, 107

Ariz. 100, 104, 482 P.2d 863, 867 (1971); State v. Mc-

Corgary, 218 Kan. 358, 543 P.2d 952, 958 (1975).

360 A.2d at 551

The second case is State v. Innis, 391 A.2d 1158 (R.I. 1978).

Innis was arrested on the streets of Providence for armed rob-

bery and armed robbery and murder. Both crimes were

perpetrated with a shotgun but he did not have it in his posses-

sion when arrested. He was promptly given the Miranda warn-

ings. After the third such warning he stated that he wanted to

see an attorney. He was transported to the patrol station and

before departing the transporting officers were instructed not to

interrogate him.

— A-15 —

En route to the station, one officer speaking to the other, ex-

pressed concern that a child from a nearby school for handicap-

ped children might find the missing shotgun and injure himself.

Defendant thereupon asked officers to return him to the scene

of his arrest so that he might show them where he had hidden

the shotgun. He was again advised of his Miranda rights,

following which he led the police to the gun hidden under a pile

of rocks in a nearby field.

The Court held that both statements should have been sup-

pressed. Two issues were identified and discussed, viz: (1)

whether defendant was ‘“‘interrogated’’ within the meaning of

Miranda, and (2) whether he waived his right against self-

incrimination. As to the first question, the Court said:

The defendant, alone in a police wagon with three officers

at 4 a.m., underwent the same psychological pressures

which moved Williams to lead police to the body of his vic-

tim. Police officers in such a situation must not be permit-

ted to achieve indirectly, by talking to one another, a result

which the Supreme Court has said they may not achieve

directly by talking to a suspect who has been ordered not to

respond. The same ‘subtle compulsion’ exists.

. . we believe that defendant was interrogated within the

meaning of Miranda in the absence of counsel after re-

questing to see an attorney.

391 A.2d at 1162

The Court held that there was no waiver of defendant’s right

against self-incrimination.

The Rhode Island Court did not rely upon the Sixth Amend-

ment; however, it did place strong reliance upon Brewer v.

Williams, supra, a Sixth Amendment case. In this connection, it

should be noted that the action of the defendant in leading of-

ficers to the hidden gun occurred prior to the initiation of

judicial proceedings. Thus, J/nnis is not as strong, in principle,

— A-16 —

as the case at bar. Williams involved interrogation after

preliminary arraignment. Innis, therefore, is of questionable

precedential value in the consideration of the instant case. Fur-

ther, the Supreme Court has granted certiorari and the case is

docketed for hearing at the present term. Rhode Island v. Innis,

99 S.Ct. 1277 (1979).

Also docketed for hearing at this term is United States v.

Henry, 590 F.2d 544 (4th Cir. 1978). This is a split opinion by

the Court of Appeals, Fourth Circuit, and is analagous to the

case at bar. It raises the specific question of whether Henry’s

rights were infringed by the admission of statements he made in

the course of general conversation with a cellmate who had

agreed to act as government informer but had been instructed

not to question defendant.

Henry was indicted for armed bank robbery and confined in

the Norfolk County Jail. Shortly thereafter an FBI agent con-

tacted another inmate at the jail who had been a paid informer

for the FBI for over a year. The agent instructed the informer to

be alert to any statements about charges pending but was

specifically warned not to initiate conversation with or question

Henry regarding the bank robbery. Subsequently, Henry en-

gaged him in conversation during the course of which he

described the details of the bank robbery. At all pertinent times

Henry was in custody, had been indicted and had not waived his

right to counsel. In holding that Henry’s right to counsel was

violated, the Court said:

An undisclosed government agent may effectively ‘‘inter-

rogate’’ a defendant by simply engaging the defendant in a

general conversation and if the response is a confession of

guilt, the agent need not make any further more pointed

inquiries (citation omitted).

. . . even if we assume that Nichols obeyed his instructions

not to interrogate Henry about the bank robbery, Nichols

did testify that he engaged in conversation with his

— A-17 —

cellmate Henry. If, by association, by general conversa-

tion, or both, Henry developed sufficient confidence in

Nichols that Henry bared his incriminating secrets to an

undisclosed paid informer, we think there was interroga-

tion within the meaning of Brewer.

590 F.2d at 547

The concurring opinion adds:

[T]he informant’s conclusory statement that he did not

question the defendant is not determinative. The critical

issue is whether, after judicial proceedings had been in-

itiated against the defendant, an informant - acting as an

agent of the government - elicited information from him

in the absence of defense counsel.

590 F.2d at 547

On the basis of the record, we conclude (1) that defendant

was indicted for first degree murder; (2) that he was given

Miranda warnings; (3) that he employed counsel; (4) that the

law enforcement officials knew he was represented by counsel;

(5) that he was confined in the Greeneville City Jail; (6) that

Agent Rhea of the Tennessee Bureau of Investigation posing as

a captured felon, was placed in jail with him; (7) that defendant,

believing him to be a ‘‘tough character,’’ and not having any

idea or suspicion of his true identity, initiated a conversation

with him; (8) that during the course of this conversation

numerous incriminating statements were made; (9) that Rhea

did not interrogate him in the conventional sense, but did

engage in general conversation during the course of which he

asked questions and received answers; and (10) that there was

no waiver of his right to counsel.

In the light of the authorities discussed herein we conclude

that there was a form of interrogation. All will agree that had

the officer entered the cell, identified himself, and asked ques-

tions which produced incriminating information, such informa-

— A-18 —

tion would not have been admissible. 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. Nor will the law permit the State to dishonor its com-

mitment and renege on its promise to defendant’s counsel.

We, therefore, hold that the Trial Judge erred in failing to

suppress the testimony of the Tennessee Bureau of Investigation

agents relating to the jailhouse conversations and statements

relating to this case, to include threats made against witnesses

and plans for their extermination. In short, no parts of this in-

terrogation may be presented to the jury on retrial.

We predicate this holding on the Sixth Amendment to the

Constitution of the United States, made applicable to the states

by the Fourteenth Amendment.

It should be noted that this holding is confined to the retrial

of this defendant on this charge. We have no occasion to con-

sider the question of admissibility of evidence at a trial based on

any other charge.

Ill.

Discussion of Remaining Issues

Petitioner’s assignment of error asserting that the evidence

preponderates in favor of the defendant’s innocence and against

his guilt is overruled. The result of our holding today is to strike

substantial portions of the evidence. Other parts are left intact.

In view of the remand, we do not consider it necessary, ap-

propriate, or proper for us to make extended comment on the

evidence. Suffice it to say, we do not reverse for insufficiency

and a retrial is not forbidden.

Petitioner charges the Court with error in receiving evidence

concerning the loss of money in Robin Shanks’ account from

the apparent misuse of a bank card. This testimony went to

motive and was properly admitted.

— A-i9 —

Petitioner insists that the defendant in a capital case is entitled

to notice of the aggravating circumstances the State will attempt

to prove at the sentencing hearing.

Section 39-2404(i), T.C.A. (1979 Supp.), enumerates eleven

circumstances to which the proof ‘‘shall be limited.’’ All of

these, except for (i)(2) relating to prior convictions, inhere in the.

record and are explicitly demonstrated by the proof required on

the first hearing. The defendant is put on notice by the statute

of the precise aggravating circumstances which will be used

against him. Further notice need not be incorported in the in-

dictment nor otherwise given.

We find no controlling authority for the conclusion we reach.

In Spinkellink v. Wainwright, 578 F.2d 582 (Sth Cir. 1978), the

Fifth Circuit declined to decide the precise issue of whether the

indictment must allege aggravating circumstances, holding in-

stead that failure to object at trial to the indictment constituted

a waiver and operated a foreclosure the issue.' However, an ex-

tension for a stay of execution was filed in the Supreme Court of

the United States and the issue of notice incorporated in the in-

dictment or ‘‘some sort of formal notice’’ was raised. In deny-

ing the stay, Justice Rehnquist, in his role as ‘‘surrogate for the

entire Court,’’ stated that he did ‘‘not believe that four Mem-

bers of this Court would find that claim either factually or legal-

ly sufficient to persuade them to vote to grant certiorari... .’’

Spinkellink v. Wainwright, 60 L.Ed.2d 649, 653-54, 99 S.Ct.

2091, 2094 (1979).

We reject petitioner’s argument and hold that a defendant in

a capital case is not entitled to any form of notice as to the

nature of the aggravating circumstances to be presented to the

jury at the sentencing hearing.

' Under Tennessee law defects in indictments are waived if not

raised prior to a plea on the merits. Wade v. State, 529 S.W.2d 739

(Tenn.Crim.App. 1975).

— A-20 —

Notwithstanding this holding, it is better practice for the

State, well in advance of trial, to give formal notice of the ag-

gravating circumstances upon which it intends to rely. Until this

question is more fully developed in the courts, such notice is

prudent.

Appellant insists that a search of his Nashville apartment was

unlawful and void and the evidence procured thereby should

have been excluded. This insistence has been discussed and

debated in conference and has been considered fully by the

Court. The majority is of the opinion that these assignments are

without merit.?

Conclusion

We reverse the conviction and remand for a new trial.

HENRY, J.

CONCURRING:

BROCK, C.J.

FONES, J.

COOPER, J.

HARBISON, J.

2 See the separate opinion of Judge Henry, infra.

— A-21 —

SEPARATE OPINION ON THE

SEARCH WARRANT ISSUE

(Filed January 7, 1980)

I respectfully differ with my colleagues on the search warrant

issue.

A. The Necessity for the Search

Agent Baird, as a part of his investigation, discovered that on

February 9, 1978, the date of the murder in Greene County,

gasoline was purchased at a Magnolia Avenue Exxon Service

Station in Knoxville, through the use of a credit card, issued to

and outstanding in the name of Raymond Kenneth Berry,

defendant’s father. Baird knew that Raymond Kenneth Berry

died in 1976. He discovered through Exxon that the purchaser

was driving an automobile bearing the license number of defen-

dant’s Mercury Monarch. Baird also discovered that this card

continued to be active with purchases made on it from time to

time, with billings being mailed to defendant’s address. He

knew that the address on it coincided with the defendant’s

Wallace Avenue address in Nashville. He learned the account

number from Exxon. The special agent from Exxon had given

him a photostatic copy of the purchase slip or invoice. Addi-

tionally, he had subpoenaed the records of Exxon and the State

was in a position to prove all the foregoing.

From this Knoxville purchase, Baird logically surmised that

the defendant had been in the Knoxville area on the date of the

murder.' This fact would demolish defendant’s alibi featuring

activities in Nashville during the entire day of the murder.

Baird’s suspicions were further fuelled by testimony that a

clean, black Ford Granada, with a CB antenna on it, was seen

' This Court judicially knows that Knoxville is about 180 miles east

of Nashville and is on the most direct route from Nashville to Green

County.

— A-22 —

on the road in the vicinity of the Shanks’ residence on the day of

the murder. The Shanks’ residence is located on a dirt road; it

was muddy and slushy during February and a ‘‘clean’”’ car in the

neighborhood was a strange car. Defendant’s car was a black

Mercury with a CB antenna. Proof in the record shows that

there is little visual difference - particularly from the sides -

between the Ford Granada and the Ford-made Mercury.

For reasons which do not appear in the record, and which do

not occur to me, Baird concluded that the prosecution needed

the credit card and the original copy of the charge slip. To ac-

complish this he appeared before a Nashville General Sessions

Judge and procured a search warrant authorizing a search of

defendant’s residence and vehicle, for the Exxon credit card and

the original charge receipt.

It is evident that these documents were not necessary to a pro-

secution of this action. All the facts specified above were

susceptible of proof, specifically including the two documents

listed in the search warrant, copies of which he already had in

his possession.

The Fourth Amendment to the Constitution of the United

States, made applicable to the states through the due process

clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S.

643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961), provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be search-

ed, and the person or things to be seized.

Article I, Section 7 of the Constitution of Tennessee provides:

— A-23 —

That the people shall be secure in their persons, houses,

papers and possessions, from unreasonable searches and

seizures; and that general warrants, whereby an officer

may be commanded to search suspected places, without

evidence of the fact committed, or to seize any person or

persons not named, whose offenses are not particularly

described and supported by evidence, are dangerous to

liberty and ought not to be granted.

While this Court has held that our state constitutional provi-

sion ‘‘is identical in intent and purpose with the Fourth Amend-

ment’’ and that ‘‘we should not limit it more stringently than

federal cases limit the Fourth Amendment, Sneed v. Sfate, 221

Tenn. 6, 423 S.W.2d 857, 860 (1978), the fact remains that there

are pronounced linguistic differences in the two provisions.

Our provision specifically denounces ‘‘general warrants’’ per-

mitting searches ‘‘without evidence of the fact committed’ and

personal seizures where ‘‘offenses are not particularly described

and supported by evidence.’’ Our Constitution obviously con-

templates evidentiary support for the issuance of search war-

rants. This, however, does not invalidate the assertion of Sneed,

because federal decisions uniformly require a clear showing of

probable cause. It does mean, that from the beginning of our

statehood our basic charter? has denounced general warrants

and required evidentiary support for their issuance.

The significance of this lies in the fact that where a search

warrant authorizes a quest for unneeded and unnecessary

documents, not per se criminal, and during its execution other

objects, in plain view, are seized - with or without any nexus -

the result is a search pursuant to a general warrant.

?_ See Article XI, Section 7, Constitution of 1796.

—_ Ee

These objectives of the search warrant requirement and the

constitutional protection it serves are made clear in Coolidge v.

New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022

(1971):

First, the magistrate’s scrutiny is intended to eliminate

altogether searches not made on probable cause. The

premise here is that any intrusion in the way of search or

seizure is an evil, so that no intrusion at all is justified

without a careful prior determination of necessity. (cita-

tions omitted) The second, distinct objective is that those

searches deemed necessary should be as limited as possible.

Here, the specific evil is the ‘‘general warrant’’ abhorred

by the colonists, and the problem is not that of intrusion

per se, but of a general, exploratory rummaging in a per-

son’s belongings. (All except first emphasis supplied).

403 U.S. at 467,

29 L.Ed.2d at 583

This is precisely what occurred in this case. A search warrant

was issued for two wholly unnecessary items, and was executed

by a wholesale search of defendant’s home and auto, resulting

in the confiscation of numerous items not named in the war-

rant, including a ball-peen hammer identified positively as the

murder weapon.

While the ‘‘mere evidence”’ rule no longer has any vitality and

there is no distinction between the seizure of items evidentiary

value only and seizures of instrumentalities, fruits, or contra-

band, Warden, Maryland Penitentiary v. Hayden, 387 U.S.

294, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967), conditions precedent

to the issuance of a valid search warrant must exist. Chief

among these conditions is probable cause, which is deeply

rooted in necessity. If the law were otherwise, law enforcement

officers, through the simple expedient of listing any insignifi-

cant object, could legitimate an indiscriminate search of the

— A-25 —

“‘castle’”’ of a citizen. Overly zealous officers could - and many

would - utterly nullify the historic constitutional requirement of

probable cause. This view, of course, does not trench upon the

“‘plain view’’ doctrine of Coolidge v. New Hampshire, supra.

B. The Sufficiency of the Warrant

The Fourth Amendment requires that search warrants issue

only ‘‘upon probable cause, supported by oath or affirmation.”’

Article I, Section 7 of Tennessee’s Constitution speaks in terms

of ‘‘evidence of the fact committed.’’ Section 40-504, T.C.A..,

requires that search warrants be supported by affidavit. Rule 41

(c), Tenn.R.Crim.P., requires a sworn affidavit or affidavits to

establish probable cause. Central to all these requirements is the

notion that probable cause must be supported by evidence sub-

mitted to the issuing magistrate and that evidence must be suffi-

cient to support an independent and neutral judgment that

probable cause exists.

In Lea v. State, 181 Tenn.378, 181 S.W.2d 351 (1944), Mr.

Justice Chambliss, writing for the Court, adopted Bouvier’s

definition of probable cause:

[a] reasonable ground of suspicion, supported by cir-

cumstances sufficiently strong in themselves to warrant a

cautious man in the belief that a person accused is guilty of

the offense with which he is charged.

181 Tenn. at 381.

In the issuance of a search warrant the magistrate must be in-

formed of the underlying circumstances, Aguilar v. Texas, 378

U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964); Spinelli v.

United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584

(1969); State v. Little, 560 S.W.2d 403 (Tenn. 1978); the war-

rant may not be issued on the basis of mere conclusions of the

affiant, Aguilar, supra, Owens v. State, 217 Tenn. 544, 399

S.W.2d 507 (1966); nor may it be supported by mere suspicion,

Spinelli, supra.

— A-26 —

The record in this case does not reveal, nor is it contended,

that any other evidence except the affidavit was brought to the

attention of the magistrate. The reviewing court may consider

only the information presented to the magistrate, Aguilar,

supra, Spinelli, supra. The magistrate’s determination will be

sustained if it rests on any substantial basis and substantial

deference will be paid to the magistrate; however, the Court will

not “‘rubber stamp”’ his action. Aguilar, supra, Spinelli, supra.

Thus we test the validity of this warrant by the affidavit pur-

suant to which it was issued. The full affidavit appears as an ap-

pendix to this opinion. In summary, it contains these represen-

tations:

1. That the TBI agent received information from a special

agent of Exxon Corporation that a credit card, issued to Ray-

mond Kenneth Berry, deceased father of the defendant, was

used to purchase gasoline on February 9, 1978, by an individual

operating a vehicle titled in defendant’s name.

2. That the original charge receipts were mailed on March 15,

1978, to the defendant’s father at defendant’s address.

3. This credit card and the original charge receipt ‘‘are

material evidence in investigations of murder, robbery and

felonious assault . . . on the 9th day of February 1978 in Greene

County, Tennessee as suspect Russell Keith Berry has given alibi

defense to affiant that he did not leave the Nashville, Tennessee

area on date of said offense.”’

The affidavit does not set forth the fact that the gasoline pur-

chase was made in Knoxville, Tennessee, on the date of the

murder. The magistrate was not given this critical underlying

fact. As a maximum, the affidavit suggests the fraudulent use of

a gasoline credit card and contains a bald assertion that the

named items are material. Beyond the fraudulent use of the

credit card, the activities are innocuous, innocent and probative

of nothing. The allegation of materiality is, of course, a mere

conclusion.

om ed] —

In Aguilar v. Texas, supra, the Court said:

Although the reviewing court will pay substantial

deference to judicial determinations of proable cause, the

Court must still insist that the magistrate perform his

“‘neutral and detached’’ function and not serve merely as a

rubber stamp for the police.

378 U.S. at 111,

11 L.Ed.2d 727

Further:

The Commissioner must judge for himself the per-

suasiveness of the facts relied on by a complaining officer

to show probable cause. He should not accept without

question the complainant’s mere conclusion . . . . (Em-

phasis supplied).

378 U.S. at 112,

12 L.Ed.2d 727

The Supreme Court of the United States took Spinelli v.

United States, supra, ‘‘[b]elieving it desirable that the principles

of Aguilar should be further explicated.’’ 393 U.S. at 412, 21

L.Ed.2d at 641. Spinelli was convicted of travelling in interstate

commerce with the intention of conducting illegal gambling ac-

tivities. The convicting evidence was obtained by means of a

search warrant supported by an affidavit which alleged in

substance:

1. On various days Spinelli had been seen crossing the bridge

leading from Illinois into St. Louis, Missouri and had been seen

parking his car at a St. Louis apartment house. On one occasion

he had been followed to a particular apartment.

2. The records of the Telephone Company revealed that the

apartment contained two telephones with different numbers

and listed in the name of a person other than the defendant.

— A-28 —

3. Spinelli was known to affiant and law enforcement of-

ficials as a bookmaker and gambler.

4. A reliable person had informed that Spinelli was conduc-

ting a gambling operation by means of these two phones.

The Court summarily disposed of the first two items, stating

that they ‘‘reflect only innocent seeming activity and data.’’ 393

U.S. at 414, 21 L.Ed.2d at 642. With respect to the third item,

that Spinelli was known as a gambler and associate of gamblers,

the Court bluntly characterized this as being ‘‘but a bald and

unilluminating assertion of suspicion that is entitled to no

weight in appraising the magistrate’s decision. 393 U.S. at 414,

21 L.Ed.2d at 643. The Court discredited the fourth item for

want of proof of reliability and lack of a sufficient statement of

the underlying circumstances.

The informant in the case at bar was named but the informa-

tion he supplied, as set forth in the warrant, was indicative of

‘innocent seeming activity and data.’’ Agent Baird conceded at

the suppression hearing that the mere fact of the use of the

credit card does not operate to refute defendant’s alibi. Yet he

says that this use and the fact the credit card was ‘‘fraudulently

obtained and invalid’’ was all he relied upon to support his

‘‘material evidence’’ charge. The statement that the credit card

and charge slip are ‘‘material evidence’’ is but ‘‘a bald and

unilluminating assertion of suspicion that is entitled to no

weight.’’ Clearly, the affidavit in the instant case is not as strong

as the judicially condemned. affidavit in Spinelli, which the

Court could not sustain ‘‘without diluting important safeguards

that assure that the judgment of a disinterested judicial official

will interpose itself between the police and the citizenry.’’ 393

U.S. at 419, 21 L.Ed.2d at 645-46.

Our own case of Earls v. State, 496 Tenn. 464, 465

(Tenn.1973), reminds us that in analyzing the validity of a

search warrant, ‘‘[mJere affirmance of belief of suspicion is not

enough.’’

— A-29 —

‘The security of one’s privacy against arbitrary intrusion by

the police - which is at the core of the Fourth Amendment - is

basic to a free society. It is therefore implicit in ‘the concept of

ordered liberty’ and as such enforceable against the states

through the Due Process Clause.’’ Coolidge v. New Hampshire,

supra. The demands of due process take on a broadened

significance in death penalty cases, for death ‘‘is a different

kind of punishment from any other which may be imposed in

this country.’’ Gardner v. Florida, 430 U.S. 349, 357, 51

L.Ed.393, 401, 97 S.Ct. 1197, 1204 (1977).

Looking at this record in a light most favorable to the pro-

secution, there was no need for the documents listed in the war-

rant; viewed from the other end of the spectrum the warrant

was a ploy, a subterfuge and a pretext to intrude into the privacy

of defendant’s home. It is unnecessary to decide which and such

a decision is of no consequence because the end result is the

same. In either event the search warrant was defective. It was

further defective because the affidavit did not give sufficient

underlying information, with the result that it basically details

innocent seeming activity, with its guilty cast resting upon un-

supported conclusions and suspicion.

For these reasons I would hold that this search warrant was

invalid under the Fourth Amendment to the Constitution of the

United States and under Article I, Section 7 of the Constitutior.

of Tennessee. In my opinion all fruits of the search were inad-

missible and the Trial Judge erred in failing to sustain the mo-

tion to suppress.

Henry J.

— A-30 —

APPENDIX

STATE OF TENNESSEE, DAVIDSON COUNTY

SEARCH WARRANT

1, Bob Baird, make oath that I am an Agent of the Tennessee

Bureau of Criminal Identification assigned to the Twentieth

Judicial Circuit and that on the 30th day of March, 1978 I

received information from Special Agent Bob Quinn, Exxon

Company, P. O. Box 367, Memphis, Tennessee, that he per-

sonally reviewed the Exxon credit records and determined that

on February 9, 1978 Exxon credit card 181-631-9519 was used to

purchase gasoline and oil in the amount of $6.27 by individual

operating vehicie bearing Tennessee registration 6A3458.

Special Agent Bob Quinn further advised that Exxon credit card

#181-631-9519 is assigned to Raymond Kenneth Berry, 180

Wallace Road, Apartment V-24, Nashville, Tennessee, and that

above credit card was used in purchase of gasoline on February

11, 1978 by individual operating vehicle bearing Tennessee

registration 6B4673. Special Agent Bob Quinn advised that

original charge receipts were mailed on March 15, 1978 from

Exxon Company to Raymond Kenneth Berry, 180 Wallace

Road, Apartment V-24, Nashville, Tennessee. Affiant states

that Russell Keith Berry is the son of Raymond Kenneth Berry

and currently resides at 180 Wallace Road, Apartment V-24,

Nashville, Tennessee and that account holder Raymond Ken-

neth Berry died on the /2th day of June 1976 at his home in

Carter County, Tennessee as a result of gunshot wounds. Af-

fiant further states that Tennessee vehicle registration 6A3458 is

currently assigned to Russell Keith Berry, P. O. Box 1094,

Johnson City, Tennessee and displayed on a 1976 Mercury

Monarch VIN 46W38F520120. That Tennessee vehicle registra-

tion 6B4673 is currently assigned to Sherry R. Shanks, 180

Wallace Road, Apartment V-24, Nashville, Tennessee and

displayed on a 1974 Plymouth Duster VIN #VL29C4G276108.

That Sherry R. Shanks is presently Sherry R. Berry due to mar-

— A-31 —

riage to Russell Kenneth Berry on the 17th day of December

1977. Affiant states that Exxon credit card #181-631-9519 and

original charge receipts are material evidence in investigation of

murder, robbery and felonious assault of John and Zelma

Shanks on the 9th day of February 1978 in Green County, Ten-

nessee as suspect Russell Keith Berry has given alibi to affiant

that he did not leave Nashville, Tennessee area on date of said

offense.

Affiant further states that Special Agent Bob Quinn, Exxon

Company, advised him that original charge receipts for Exxon

account #181-631-9519 were mailed within the last 15 days to

180 Wallace Road, Apartment V-24, Nashville, Tennessee. The

premises, person, and vehicles are described as follows, to wit:

The person of suspect Russell Keith Berry, Apartment V-24,

Nob Hill Villa, 180 Wallace Road, Nashville, Tennessee and

said vehicles being a brown 1974 Plymouth Duster bearing Ten-

nessee registration 6B4673 and a 1976 Mercury Monarch, black

in color bearing Tennessee registration 6A3458.

Sworn to and subscribed before me this the 3/ day of March,

1978.

s/Bobby D. Baird S/A. A. Birch, Jr.

Bobby D. Baird, T.B.I. A. A. BIRCH, JR.,

Judge.