Petition for Writ of Certiorari — Tennessee v. Crump

92-222

No.

In The

Supreme Court of the United States

October Term, 1992

.

STATE OF TENNESSEE,

Petitioner,

MELVIN CRUMP,

Respon dent.

¢

On Writ Of Certiorari

To The Supreme Court Of Tennessee

+

PETITION FOR WRIT OF CERTIORARI

¢

CHARLES W. Burson

Attorney General & Reporter

Counsel of Record

JOHN KNox WALKUP

Solicitor General

GorDon W. SMITH

Deputy Attorney General

KatHy M. Princire

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0485

(615) 741-3487

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

ISSUE PRESENTED FOR REVIEW

Whether the Fifth Amendment requires that an

accused murderer’s confession be suppressed because the

police failed to “scrupulously honor” an invocation of the

right to silence even though fresh Miranda warnings pre-

ceded the confession and the statement was freely and

voluntarily given.

ii

TABLE OF CONTENTS

Page

TABLE OF AUT RILARE Giles 505 coc scannvnssanveweseed iii

OPUNM IG GGAIOe vcr ciceuwasnes oe eeeskauh ane erens 1

FURESEIUG, CORI ss snk 050 ceeanacaana canned ees Raaeees 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATIBEMENTE OF THER Gide ss kk sewn tseekevacesess 2

REASONS FOR GRANTING THE WRIT ........... 5

ARGUMENT

THE FIFTH AMENDMENT DOES NOT

REQUIRE THAT AN ACCUSED MURDERER’S

CONFESSION BE SUPPRESSED BECAUSE THE

POLICE FAILED TO “SCRUPULOUSLY

HONOR” AN INVOCATION OF THE RIGHT TO

SILENCE WHERE FRESH MIRANDA WARN-

INGS PRECEDED THE CONFESSION AND THE

CONFESSION WAS FREELY AND VOLUN-

TARILY GIVE, . «icssunaes a eceeiah renee ened 6

CONCLUGIIN «i cis ssstnasbaneebesg se aneeeeane ieee 14

ili

TABLE OF AUTHORITIES

Page

Cases CITED

Michigan v. Long, 463 U.S. 1032 (1983)........ 11, 12, 14

Michigan v. Tucker, 417 U.S. 433 (1974) ...5, 6, 7, 11, 13

Miranda v. Arizona, 384 U.S. 436 (1966).......... passim

Oregon v. Elstad, 470 U.S. 290 (1985) ............ passim

Ullmann v. United States, 350 U.S. 422 (1956) ......... 6

’

In The

Supreme Court of the United States

October Term, 1992

*

STATE OF TENNESSEE,

Petitioner,

Vs.

MELVIN CRUMP,

Respondent.

¢

On Writ Of Certiorari

To The Supreme Court Of Tennessee

4-

PETITION FOR WRIT OF CERTIORARI

¢

OPINION BELOW

The opinion of the Supreme Court of Tennessee filed

on May 18, 1992, is designated for publication but has not

yet been published. The opinion appears as Appendix

get

JURISDICTION

The judgment of the Supreme Court of Tennessee

was entered on May 18, 1992. This petition was filed

within ninety (90) days of that date.

The Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. Amend. VY:

No person... shall be compelled in any crimi-

nal case to be a witness against himself... .

U.S. Const. Amend. XIV, § 1:

All persons born and naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the states wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction equal protection of the laws.

¢

STATEMENT OF THE CASE

Melvin Crump was indicted in November, 1988, by

the Grand Jury for Davidson County, Tennessee, on one

count of first-degree murder, one count of armed robbery

and one count of escape from the Department of Correc-

tion, where he had been serving terms for murder in the

second degree and burglary. Crump filed a pretrial

motion to suppress oral and tape recorded statements

given by him to the police. In addition to arguing that the

police had failed to “scrupulously honor” his invocation

of the right to silence, he maintained that his statements

were involuntary and that he had invoked his Sixth

Amendment right to counsel at the beginning of the tape-

recorded statement given at police headquarters.

An evidentiary hearing was held and it was estab-

lished that Crump had been incarcerated in the Depart-

ment of Correction based upon an earlier conviction for

the murder of an elderly woman and for robbery. He

escaped from a work detail and was subsequently

arrested on September 27, 1988, for escape. He was sus-

pected in the rape and murder of an elderly woman, Eliza

Mae Smith, who was murdered on the day of his escape

from the work detail.

At the time of Crump’s arrest, Detective Elam

advised him of his Miranda rights. Crump did not ask for

a lawyer. He did say something to the effect that “he

didn’t have anything to say right now” or that “he didn’t

have anything to say”. Detective Elam informed him that

he was being arrested for escape and that he was being

investigated for the murder of an “old lady” to which

Crump replied that he “didn’t know anything about

that”. The detective asked no further questions.

Shortly thereafter, Crump was driven to police head-

quarters. Detective Elam left the automobile in order to

attend to some paperwork, leaving Crump in the custody

of Detective Moore. Detective Moore had earlier asked

Detective Elam if he had read Crump his rights. Detective

Elam indicated that he had. Detective Elam believes that

he told Detective Moore that Crump had invoked his

right to silence but Detective Moore does not recall being

so informed. Detective Moore asked Crump if he would

go with him to the scene of the escape and Crump indi-

cated that he would. Detective Moore and another officer

then drove Crump to the scene of the escape. No prom-

ises, threats or physical force were applied, according to

the officers. A conversation ensued between Crump and

Detective Smith regarding which route he took on the day

of his escape. Crump appeared relaxed and was willing to

talk about where he went after the escape.

The officers then drove Crump to the Maxwell House

Hotel, where a car had been burglarized shortly after

Crump had escaped from the work detail. They asked

Crump if he took anything out of a car there and Crump

admitted he had. Moore told him that items taken from a

car were found at Eliza Smith’s house. Crump became

silent and they returned to headquarters.

At headquarters, a taped statement was taken. How-

ever, prior to this taped statement, Crump was again read

his Miranda rights and he executed a waiver of rights

form. There is an inaudible statement by him on the tape

while the officers are reading the Miranda rights. Detec-

tive Elam testified that Crump was indicating that he did

not want “nairn” an attorney, meaning that he did not

want an attorney. The trial court found as a matter of fact

that Crump did not invoke either his right to counsel or

his right to silence prior to confessing at headquarters.

At the evidentiary hearing, Crump maintained that

he was taken to a secluded area and beaten at least thirty

times and choked until he was willing to confess. He

admitted having been arrested more than seven times

since 1980 and that he was read his rights on each of

these occasions. He further testified quite emphatically

|

“that he knows his rights”. He maintained that Detective

Moore whispered words in his ear in order for him to

know what to say during the confession.

At the conclusion of the evidentiary hearing, the trial

judge found as fact that Crump was not threatened or

beaten and that he did not request an attorney. Neverthe-

less, he found that Crump did invoke his right to silence

initially upon his arrest and, because the invocation of

the right to silence was not “scrupulously honored,” the

trial judge suppressed the taped confession made at

headquarters after the second set of Miranda warnings.

On interlocutory appeal by the State, the Court of

Criminal Appeals entered an opinion reversing the deci-

sion of the trial court, finding that Crump’s confession

was voluntary and therefore should be admitted. Subse-

quently, in a 3-to-2 opinion, the Supreme Court of Tennes-

see reversed the intermediate appellate court and

reinstated the judgment of the trial court.

*

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of Tennessee erro-

neously treats the “scrupulously honor” language found

in Michigan v. Mosley, 423 U.S. 96 (1975), as an indepen-

dent constitutional right rather than a prophylactic or

ancillary rule. As a result of this error, the court held that

Crump’s confession could not be admitted solely on the

basis of a technical violation of Mosley. The petitioner

submits that no constitutional right was ever violated and

the court should not prohibit a jury from hearing the

confession to murder simply because of a technical viola-

tion to the prophylactic rule announced by this Court in

Mosley. Had the Supreme Court of Tennessee engaged in

the appropriate analysis and determined whether the

taped statement given at headquarters was freely and

voluntarily given, a different result would have obtained.

The petitioner submits that this Court should grant the

writ of certiorari in order to clarify that a technical viola-

tion of Mosley does not per se result in the exclusion of a

statement which is otherwise freely and voluntarily

given.

ARGUMENT

THE FIFTH AMENDMENT DOES NOT REQUIRE

THAT AN ACCUSED MURDERER’S CONFESSION BE

SUPPKESSED BECAUSE THE POLICE FAILED TO

“SCRUPULOUSLY HONOR” AN INVOCATION OF

THE RIGHT TO SILENCE WHERE FRESH MIRANDA

WARNINGS PRECEDED THE CONFESSION AND

THE CONFESSION WAS FREELY AND VOLUN-

TARILY GIVEN.

The Fifth Amendment to the United States Constitu-

tion protects against compulsory self-incrimination. His-

torically, the privilege against self-incrimination was

intended to protect against the abuses found during

ecclesiastical inquisitions and star chamber proceedings.

Ullmann v. United States, 350 U.S. 422, 428 (1956); Michigan

v. Tucker, 417 U.S. 433, 440 (1974). However, in Miranda v.

Arizona, 384 U.S. 436 (1966), this Court extended the

privilege against self-incrimination to statements made

during police interrogation. Additionally, the Court in

Miranda recommended a particular set of warnings that

have since become familiar to all Americans as a “pro-

cedural safeguard”. However, the warnings set out in

Miranda do not cohstitute constitutional rights in and of

themselves, but are rather a method of attempting to

insure that the suspect’s Fifth Amendment right is pro-

tected. Indeed, the Court in Miranda recognized that the

constitution does not “necessarily require[] adherence to

any particular solution for the inherent compulsions of

the interrogation process as it is presently conducted.”

Miranda, 436 U.S. at 467.

In Michigan v. Tucker, supra, the Court explicitly rec-

ognized that Miranda created a prophylactic standard. In

that case, the police informed the suspect of his Miranda

rights but failed to inform him that if he could not afford

an attorney one would be appointed for him. The sus-

pect’s statements led to evidence which would not have

been otherwise obtained. This Court held that the evi-

dence was admissible, finding that the “police conduct at

issue here did not abridge respondent’s constitutional

privilege against compulsory self-incrimination, but

departed only from the prophylactic standards laid down

by this Court in Miranda to safeguard the privilege.” Id. at

446. The Court noted that the police conduct was in

complete good faith and that the suspect had not been

pressured or coerced into giving the statement.

A year later, in Mosley, this Court upheld the intro-

duction of a confession after a suspect had invoked his

right to silence where the interrogation was about a crime

that was not the subject of the earlier interrogation and

there had been a substantial passage of time between the

invocation of the rights and the continued interrogation.

In Mosley, the Court said that an invocation of the right to

silence must be “scrupulously honored”. Although the

Court did permit introduction of the confession, the opin-

ion in Mosley appears to retreat from the notion advanced

in Tucker that Miranda warnings are prophylactic and do

not necessarily result in the exclusion of evidence when a

violation occurs. Petitioner submits that the Court in

Mosley essentially grafted a second prophylactic rule

upon the prophylactic rule advanced in Miranda. In addi-

tion to informing a suspect that he has the right to remain

silent, the State must also “scrupulously honor” that

invocation. However, just as a violation of Miranda is not

a violation of the constitution itself but violates only an

ancillary prophylactic rule, a violation of the “scru-

pulously honor” language in Mosley violates at most a

second-tier prophylactic rule and not the Fifth Amend-

ment itself.

The notion that the important inquiry in determining

whether a confession should be admitted is whether the

confession was voluntary was set out with clarity in this

Court’s opinion in Oregon v. Elstad, 470 U.S. 290 (1985).

While this Court did not overrule the “scrupulously

honor” language in Mosley, Elstad refined Mosley to clar-

ify that the violation of a prophylactic rule does not as a

matter of law render a confession coerced and, therefore,

inadmissible. Rather, the question is whether the confes-

sion was freely and voluntarily made. In Elstad, the

defendant made incriminating statements at the scene of

the arrest prior to any Miranda warnings. Subsequently,

he was given his Miranda warnings and made a full

confession. In deciding that the second statement should

be admitted, this Court placed great emphasis on the fact

that the defendant confessed after being given his rights a

second time, saying that the fact that “a suspect chooses

to speak after being informed of his rights is, of course,

highly probative” on the issue of voluntariness. Elstad,

470 U.S. at 318.

In Elstad, the Court explained that the Fifth Amend-

ment proscription against compelled testimony is “fully

satisfied” by barring the use only of the statement made

without the warnings. The Court concluded that “no

further purpose is served by imputing ‘taint’ to subse-

quent statements obtained pursuant to a voluntary and

knowing waiver.” Elstad, 470 U.S. at 318. The Court’s

decision was bottomed largely on the purpose of the Fifth

Amendment. As explained by Justice O’Connor, the sole

purpose of the Fifth Amendment is to protect against the

introduction of coerced confessions. Since the purpose of

the Fifth Amendment is to protect against coerced confes-

sions, there is no purpose in suppressing a confession

that is the product of a knowing and intelligent waiver of

rights.

Thus, the appropriate inquiry is whether the second

confession, which the State sought to admit, was volun-

tarily made or whether it was the product of coercion.

The petitioner concedes that the failure of the State to

scrupulously honor the invocation of the right to silence

is one factor which should be considered in determining

whether the statement is voluntary and knowing. How-

ever, the inquiry should not end there. In this case, it is

quite clear that Crump knew exactly what he was doing

when he spoke with the police officers. His statement was

not the result of coercion. There is absolutely no credible

evidence that the officers in any way “badgered” him or

10

forced him to confess. Indeed, after the evidentiary hear-

ing, the trial judge found that no such coercion had

occurred.

Additionally, the record establishes that since 1980,

when Crump became an adult, he has been arrested at

least seven times and has been read his rights on each of

those occasions. Moreover, this is Crump’s second rape

and murder of an elderly victim and he admitted receiv-

ing his rights on the occasion of his first arrest for rape

and murder. Importantly, he testified quite emphatically

at the suppression hearing that “he knows his rights”.

Crump has a long history of involvement with the law

and has been read his Miranda rights numerous times in

the past, indicating that he was fully aware that he had

every right to remain silent if he wished to do so. If the

police had engaged in coercive tactics by badgering him

or by indicating tc him that he had no choice but to speak

after invoking his right to silence, the failure to “scru-

pulously honor” that invocation might very well result in

an appropriate suppression because the subsequent state-

ment would be coerced. That, however, did not happen

here. Never again did Crump express any hesitancy in

talking with the police.

As explained in Elstad, the purpose of the Fifth

Amendment and the requirement that the invocation of

the right to silence be “scrupulously honored” is solely to

insure that confessions admitted at trial be voluntary. It is

not to punish police officers. This Court specifically

instructed lower courts to avoid promulgating a “rigid

rule” requiring the presence or absence of particular fac-

tors in determining if a confession should be admitted.

11

Rather, courts should look at all of the surrounding cir-

cumstances to determine voluntariness. Elstad, 470 U.S. at

318. Here, the suppression of the confession does not

serve the purposes of the Fifth Amendment because the

confession was quite clearly voluntary. At most, it pun-

ishes the police officers for not better communicating

with each other. The Fifth Amendment does not require

this kind of exclusion. As this Court has noted:

[jJust as the law does not require that a defen-

dant receive a perfect trial, only a fair one, it

cannot realistically require that policemen inves-

tigating serious crimes make no errors what-

soever. The pressures of law enforcement and

the vagaries of human nature would make such

an expectation unrealistic.

Michigan v. Tucker, 417 U.S. at 446. Additionally, the pub-

lic interest is hardly served by having Crump escape trial!

for murder simply because of this oversight on the part of

the police.

The Supreme Court of Tennessee erred in finding that

this confession must be suppressed because it violates the

“scrupulously honor” requirement in Michigan v. Mosley

rather than inquiring into whether the confession was

voluntary, as set out in Elstad.1 The Tennessee Supreme

1 The opinion of the Supreme Court of Tennessee cites the

Tennessee Constitution and some Tennessee cases as well as the

federal constitution and federal cases in its opinion. However,

this Court clearly has jurisdiction over this case under Michigan

v. Long, 463 U.S. 1032 (1983). In that opinion, this Court

(Continued on following page)

12

Court further erred in finding that Elstad should be dis-

tinguished because, in Elstad, no Miranda warnings were

(Continued from previous page)

held that where state and federal law is intermingled, there must

be language in the opinion to indicate that independent state law

controls the court’s decision. Id. at 1041. Thus, this Court will

presume jurisdiction where it is evident that the state court reached

its conclusion because it believed it had to under federal law and

where there is no statement to the contrary. In this case, the

majority opinion of the Supreme Court of Tennessee relied heavily

on federal cases, most notably Miranda, Mosley and Elstad in reach-

ing its decision. The majority cites a total of eleven federal cases

and four state cases, presumably to demonstrate that the state

courts have followed federal law in the past. The Supreme Court of

Tennessee did assert that the state constitutional protections are

greater than those found in the federal constitution, Appendix, at

7. However, the court did not give any explanation of the basis for

this greater protection. Additionally, the court gave no indication

that the greater protection afforded by the Tennessee Constitution

commanded the decision reached in this case. Rather, the opinion

demonstrates a heavy reliance on federal law and the single state-

ment that the state constitutional protections are greater than those

afforded by the federal constitution does not deprive this Court of

jurisdiction. A fair reading of the opinion of the Supreme Court of

Tennessee indicates that the court felt compelled by the federal

constitution as interpreted by Miranda and Mosley to suppress the

confession. Additionally, the dissent clearly interprets the major-

ity’s decision as relying on federal law as it discusses federal law

only and makes no mention of the Tennessee Constitution. Where

there is an intermingling of state and federal law, as here, this

Court should presume that the state court based its decision on

federal law. Michigan v. Long, supra, at 1041. Thus, since nowhere in

this opinion did the Supreme Court of Tennessee expressly state

that its citation to federal law was for guidance only or that it did

not feel compelled to follow federal law, this Court has jurisdiction

to review the decision.

|

13

given prior to the suspect’s first statement. While that is a

factual difference between Elstad and the situation pre-

sented here, the reasoning set out by this Court in Elstad

is equally applicable to this fact situation. To hold that

Elstad applies only to a situation where no Miranda rights

are given but not to this situation creates an extremely

anomalous result. Under such a theory, the failure to give

Miranda warnings does not necessarily result in the sup-

Pression of a subsequent voluntary confession because

Miranda warnings are prophylactic in nature but where

the violation is to the prophylactic rule announced in

Mosley, the courts would be barred as a matter of law

from even considering whether the confession is volun-

tary. Such an application invites a strange result: The per

se exclusion of a confession for the violation of a pro-

phylactic rule (Mosley) upon a prophylactic rule (Miranda)

but not exclusion for the violation of the first layer of

prophylactic rule (Miranda). Certainly, such an anomalous

result cannot be mandated by the constitution.

The petitioner submits that the only violation in this

case was to the prophylactic rule announced in Mosley.

The Fifth Amendment right to self-incrimination would

certainly not be violated by introduction of this voluntary

and freely given confession. Crump emphatically testified

that he knew his rights and, given his lengthy history of

police involvement and the number of times his rights

have been read to him, there is no question as to his street

savvy. Obviously, Crump knew the consequences of talk-

ing to the police but decided to go ahead and speak

anyway. This Court should also give consideration to

society’s interest in the “effective prosecution of crimi-

nals”. Michigan v. Tucker, 417 U.S. at 450. Unquestionably,

14

the public interest is ill-served by refusing to let a jury

hear a defendant confess to the murder of an eighty-six-

year-old woman when he voluntarily admitted his guilt.

The citizenry is not served by such an exclusion and the

constitution does not require it.

+

CONCLUSION

For the reasons stated, the petitioner urges this Court

to grant the writ of certiorari.

Respectfully submitted,

CHARLES W. BuRSON

Attorney General & Reporter

Counsel of Record

JOHN KNox WaLkup

Solicitor General

GorpDon W. SMITH

Deputy Attorney General

KaTHy M. PRINCIPE

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0485

(615) 741-3487

Counsel for the Petitioner

App. 1

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION

Plaintiff-Appellant, Filed: May 18, 1992

vs. ) DAVIDSON CRIMNAL [sic]

MELVIN CRUMP, ) HON. WALTER C. KURTZ,

Defendant-Appellee. ‘ ceiatniee

) No. 01-S-01-9011-CR-00098

For Appellant: For Appellee:

Charles W. Burson Donald E. Dawson

Attorney General & Reporter Searcy, Smith & Dawson

Kathy M. Principe Nashville, Tennessee

Assistant Attorney General Edmund L. Carey, Jr.

Nashville, Tennessee Neal & Harwell

Nashville, Tennessee

OPINION

TRIAL COURT AFFIRMED; COURT OF

CRIMINAL APPEALS REVERSED. ANDERSON, J.

In this interlocutory appeal, we are asked to decide

whether the defendant’s confession was obtained in vio-

lation of his rights under the Fifth Amendment of the

United States Constitution and Article I, § 9 of the Ten-

nessee Constitution. Specifically, we are concerned with

the effect of a police failure to scrupulously honor the

deferdant’s invocation of his Miranda right to silence

upon the admissibility of the defendant’s later confession

obtained after a re-warning of his Miranda rights. The

trial court suppressed the confession; however, the Court

App. 2

of Criminal Appeals reversed. We disagree and hold the

confession is inadmissible for the reasons set forth below.

FACTUAL HISTORY

On September 27, 1988, between Noon and 1:00 p.m.,

the defendant, Melvin Crump, was arrested at a private

Nashville residence. At the time of his arrest, Crump was

wanted for escaping from a work detail for the Depart-

ment of Corrections, where he had been serving time for

burglary and second-degree murder. In addition, Crump

was wanted as a suspect in the murder of Eliza Mae

Smith on August 26, 1988, the day of Crump’s escape.

When he was arrested, Crump was handcuffed and

placed in the front seat of Sergeant Robert Moore’s

unmarked police car. While he was sitting in the car,

Detective Grady Elam read Crump his Miranda rights and

asked him if he understood them. Crump acknowledged

that he understood his rights and indicated that he did

not want an attorney.

Elam then asked, “Having these rights in mind, do

you wish to talk to us now?” Regarding Crump’s answer,

Elam testified:

I don’t remember exactly what he said. It was

either, “I don’t have anything to say right now,”

or “I don’t have anything to say.” I’m not sure

exactly what the wording was, but he did not

have anything to say to me.

Following Crump’s response, Detective Elam termi-

nated his questioning of the defendant and informed him

that he was under arrest for escaping from the state

penitentiary. Elam also told the defendant that he was a

App. 3

suspect in the murder of Eliza Smith, a lady who lived

down the street from the arrest scene. Crump responded

to this information by stating that “I don’t know anything

about that.”

While Detective Elam was occupied with Crump,

other officials spent approximately 20 minutes investigat-

ing the scene by interviewing neighbors and searching

the defendant’s room. During the course of this brief

investigation, Sergeant Moore approached Detective

Elam to inquire whether Crump had been advised of his

rights, and Elam responded affirmatively. Although

Moore denied asking or being told anything else, Detec-

tive Elam testified that he also told Sergeant Moore that

Crump said he did not have anything to say.

After the investigation at the scene was concluded,

the defendant was transported to the police station by

Sergeant Moore and Detective Elam. At some point dur-

ing the course of their 10-minute trip to the station,

Sergeant Moore described to Elam his plan to take Crump

on a ride through north Nashville to retrace his escape

route, with the hope of “learn[ing] something that deals

with the homicide.” Moore testified that he asked Crump

if he would “mind riding with us back to the scene of

where he had escaped,” and the defendant “said he

didn’t have any problem with it.”

Upon arriving at the station approximately 30 min-

utes after giving Crump his first Miranda warnings,

Detective Elam exited Moore’s vehicle and entered the

station to begin the paperwork on Crump’s arrest. Out-

side the station, Sergeant Moore met Detectives Mike

Smith and Ed Moran, who had participated in the arrest,

App. 4

and asked them if they would accompany him and

Crump on the ride. The detectives agreed and got in the

back seat, while Crump rode handcuffed in the front with

Sergeant Moore.

The officers began the 30 to 45-minute ride by driv-

ing out to the day care center in north Nashville where

Crump had escaped from a prison work detail.! From

there, they proceeded to retrace the defendant’s escape

route as he described it to the officers. During the course

of the trip, Sergeant Moore testified that Crump seemed

disinterested and even “nodded off” to sleep at one point.

When Crump’s directions took the officers within the

vicinity of the Maxwell House Hotel, Sergeant Moore

stopped the vehicle and asked Crump if he had stolen

anything out of a car in the hotel parking lot. Crump

responded by admitting that he had taken items from the

car, but said he had later thrown them away. Then Ser-

geant Moore told Crump that the items stolen from the

car were found at the scene of Eliza Smith’s- murder.

Moore testified that after he told him this, Crump just

hung his head and it was obvious that an emotional

change took place. Moore said that Crump’s mannerisms

showed him that the officers suddenly had Crump’s

attention and that Crump knew the police were on to

him.

| The defendant testified that the ride lasted 2'/2 hours and

that during this ride, he was taken to a remote location and

beaten by all three officers until he agreed to confess. The trial

court did not credit his testimony, but we need not address this

issue because we hold the defendant’s confession inadmissible

on other grounds.

App. 5

Following his incriminating responses, Crump and

the officers headed back to the station, where they

arrived between 2:00 and 2:30 p.m. When they arrived,

Detective Elam noted that although Crump did not show

signs of physical abuse, he did show signs of “mental

abuse.” Detective Elam testified that Crump “looked like

he was upset,” probably “just the emotion of being

arrested.”

At the station, Crump was taken to an office and read

his Miranda rights by Detective Smith.? After signing a

written waiver of his rights at 2:45 p.m., Crump gave a

taped confession of how he strangled Eliza Mae Smith

and removed $20 and change from her apartment on the

day of his escape. Subsequently, Crump was escorted to

booking by Sergeant Moore and thereafter taken before a

magistrate at 3:30 p.m.

Following a suppression hearing, the trial court

found that the defendant had invoked his constitutional

right to remain silent when he told Detective Elam at the

arrest scene that he did not have anything to say. The trial

court then determined that the admissibility of any state-

ment solicited by subsequent questioning would depend

on whether the defendant’s invocation of the right to

2 During the portion of the warnings pertaining to the

right to have counsel present, Crump interrupted Smith with a

statement that is inaudible on the tape. Crump argues that he

requested counsel at that point, but we need not address this

issue because we hold his confession inadmissible on other

grounds.

App. 6

remain silent was “scrupulously honored” under Michi-

gan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313

(1975).

Applying this standard, the trial court found that

Crump’s right to cut off questioning and remain silent

was not “scrupulously honored,” and that both the oral

statements made during the ride and the taped confes-

sion had to be suppressed. The trial court then granted

the State’s motion for an interlocutory appeal pursuant to

Tenn. R. App. P. 9.

The Court of Criminal Appeals reversed the trial

court’s decision with respect to the taped confession,

finding that the determination of whether the police

“scrupulously honored” the defendant’s invocation of his

right to remain silent is only the first prong of a two-

prong analysis. The second prong of the analysis, accord-

ing to the Court of Criminal Appeals, is whether the

police violation was of constitutional dimension or

merely a violation of Miranda’s prophylactic rules under

Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d

222 (1985).

Since the appellate court found that the police mis-

conduct in continuing to question Crump after he

invoked his right to remain silent was merely a violation

of Miranda’s prophylactic rules, the court determined that

the only relevant inquiry was whether under Elstad the

taped confession was given knowingly and voluntarily.

Finding that it had been given knowingly and voluntarily

following Miranda warnings and a signed waiver of

rights, the Court of Criminal Appeals held the taped

confession admissible.

App. 7

CONFESSIONS AND

SELF-INCRIMINATION RIGHTS

The only issue to be addressed on this interlocutory

appeal is whether the defendant’s confession should be

suppressed because it was obtained in violation of his

rights under the Fifth Amendment to the United States

Constitution and Article I, § 9 of the Tennessee Constitu-

tion. The defendant contends that the police conduct in

continuing to question him after he invoked his right to

remain silent was in violation of his constitutional rights,

and therefore, the taped confession should be excluded as

an involuntary confession and as tainted “fruit of the

poisonous tree.” The State, on the other hand, argues that

the police misconduct was merely a violation of Miranda's

prophylactic rules and that the taped confession should

be admissible as a voluntary confession.

The Fifth Amendment to the United States Constitu-

tion, which is applicable to the States through the Four-

teenth Amendment, see Malloy v. Hogan, 378 U.S. 1, 84 S.

Ct. 1489, 12 L.. Ed. 2d 653 (1964), provides that “[n]o

person . . . shall be compelled in any criminal case to be a

witness against himself.” The corresponding provision of

the Tennessee Constitution provides “(that in all criminal

prosecutions, the accused . . . shall not be compelled to

give evidence against himself.” Tenn. Const. art. I, § 9.

The significant difference between these two provisions is

that the test of voluntariness for confessions under Arti-

cle I, § 9 is broader and more protective of individual

rights than the test of voluntariness under the Fifth

Amendment. See State v. Smith __ S.W.2d __ (Tenn.

1992).

acacia aii iaeiniiii ane

App. 8

Prior to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966), the admissibility of an

accused’s in-custody statements depended on whether

they were “voluntary” within the meaning of the Due

Process Clause of the Fourteenth Amendment. See, e.g.,

Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L.

Ed. 2d 513 (1963). In Miranda, however, the U.S. Supreme

Court limited the admissibility of statements that would

ordinarily meet the due process test of voluntariness in

order to combat the inherently compelling pressures of

in-custody interrogation and to permit a full opportunity

to exercise the privilege against self-incrimination.

The Miranda court held that “the prosecution may not

use statements, whether exculpatory or inculpatory, stem-

ming from custodial interrogation of the defendant unless

it demonstrates the use of procedural safeguards effective

to secure the privilege against self-incrimination.” Mir-

anda, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706.

At a minimum, the Court held that the procedural safe-

guards must include warnings prior to any custodial

questioning that the accused has the right to remain

silent, that any statement he makes may be used as evi-

dence against him, and that he has the right to have an

attorney present during questioning, whether retained or

appointed. Id.

Although the court stated that these rights could be

waived by an accused if the waiver was made “volun-

tarily, knowingly, and intelligently,” id., the court reiter-

ated that “the accused must be adequately and effectively

apprised of his rights and the exercise of those rights

must be fully honored.” Id. 384 U.S. at 467, 86 S. Ct. at

1624, 16 L. Ed. 2d at 719. To fully honor an accused’s self-

App. 9

incrimination rights, the court stated that “[o]nce warn-

ings have been given, . . . [i]f the individual indicates in

any manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must

cease. At that point, he has shown that he intends to

exercise his Fifth Amendment privilege.” Id. 384 U.S. at

473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723.

Although the court held that interrogation must

cease when an accused indicates that he wishes to remain

silent, the court did not set forth the circumstances under

which the police could resume interrogation without vio-

lating an accused’s self-incrimination rights. This ques-

tion, however, was addressed by the court in Michigan v.

Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).

In Mosley, the defendant was arrested as a suspect in

a series of robberies and advised of his Miranda rights.

After stating that he did not want to answer any ques-

tions about the robberies, the arresting officer imme-

diately ceased the interrogation and took the defendant

to his cell. Approximately two hours later, a different

officer re-advised the defendant of his Miranda rights and

interrogated him about an unrelated homicide. During

the course of this interrogation, the defendant made a

statement implicating himself in the homicide, which he

later challenged on constitutional grounds.

After reviewing the Miranda decision, the Mosley

court concluded that “the admissibility of statements

obtained after the person in custody has decided to

remain silent depends under Miranda on whether his

‘right to cut off questioning’ was ‘scrupulously honored.’ ”

Id., 423 U.S. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d at 321.

App. 10

Under the facts presented, the Court determined that the

defendant's right to cut off questioning had been “scru-

pulously honored” because “the police here immediately

ceased the interrogation, resumed questioning only after

the passage of a significant period of time and the provi-

sion of a fresh set of warnings, and restricted the second

interrogation to a crime that had not been a subject of the

earlier interrogation.” Id., 423 U.S. at 106, 96 S. Ct. at 327,

46 L. Ed. 2d at 322. In reaching its conclusion, the Mosley

court distinguished the facts of its case from a case

“where the police failed to honor a decision of a person in

custody to cut off questioning, either by refusing to dis-

continue the interrogation upon request or by persisting

in repeated efforts to wear down his resistance and make

him change his mind.” Id., 423 U.S. at 105-06, 96 S. Ct. at

327, 46 L. Ed. 2d at 322.

The facts presented in this appeal clearly demon-

strate that Crump’s right to cut off questioning by invoca-

tion of his right to remain silent was not “scrupulously

honored.” Thirty minutes after responding to Miranda

warnings with “I don’t have anything to say,” he was

taken on a 30 to 45-minute drive and questioned while

retracing the route of his escape. This clearly constituted,

an impermissible resumption of in-custodial interroga-

tive, which caused the admissions made by Crump dur-

ing the drive to be inadmissible.

The result is not changed by the fact that Sergeant

Moore may not have known that the defendant had

invoked his right to remain silent after Detective Elam

read Crump his Miranda rights. See Arizona v. Roberson,

486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988).

App. 11

Neither does the fact that the defendant agreed to accom-

pany the officers on the drive change the result. Miranda

is clear in its mandate that “a warning at the time of the

interrogation is indispensable to overcome its pressures

and to insure that the individual knows he is free to

exercise the privilege at that point in time.” Miranda, 384

U.S. at 469, 86 S. Ct. at 1625, 16 L. Ed. 2d at 720.3

Having concluded that the police failed to “scru-

pulously honor” Crump’s right to cut off questioning by

interrogating him on the drive, we must determine what

effect this failure has upon the admissibility of the defen-

dant’s subsequent taped confession. As a matter of fed-

eral constitutional law, the relevant inquiry is. whether

the police failure to scrupulously honor the defendant's

invocation of his right to remain silent merely violated

Miranda’s procedural rules or violated the defendant's

constitutional rights. Oregon v. Elstad, 470 U.S. 298, 306,

105 S. Ct. 1285, 1290, 84 L. Ed. 2d 222, 230 (1985); State v.

Smith, __ S.W.2d __ (Tenn. 1992). This distinction is

crucial under federal law because failure to comply with

Miranda’s procedural guidelines does not result in the

same consequences as police infringement of a constitu-

tional right. Elstad, 470 U.S. at 304, 105 S. Ct. at 1290, 84,

L. Ed. 2d at 229; Smith, S.W.2d at __.

3 While a contemporaneous warning is thus absolutely

necessary to the subsequent admissibility of a statement, we in

no way intimate that police are free to ignore a suspect's

invocation of his right to silence so long as they re-administer

Miranda warnings where this tactic rises to the level of

“repeated efforts to wear down his resistance and make him

change his mind.” Mosley, 423 U.S. at 105-06, 96 S. Ct. at 327, 46

L. Ed. 2d at 322.

App. 12

Under federal law, if police conduct only results in a

violation of Miranda’s procedural guidelines, the admis-

sibility of a subsequent confession depends solely on

whether it was made knowingly and voluntarily. Elstad,

470 U.S. at 309, 105 S. Ct. at 1293, 84 L. Ed. 2d at 232;

Smith, S.W.2d at __. However, if the police conduct

results in a federal constitutional violation, the inquiry

becomes whether the subsequent confession was involun-

tary, and whether it was obtained as a result of that

violation and therefore must be excluded as tainted “fruit

of the poisonous tree.” Elstad, 470 U.S. at 305, 105 S. Ct. at

1291, 84 L. Ed. 2d at 230; Smith, __ S.W.2d at __.

After reviewing the record, we conclude that the

police failure to scrupulously honor Crump’s invocation

of his right to remain silent amounted to a violation of the

defendant’s state and federal constitutional rights. The

defendant was read his Miranda rights and responded by

stating that he “did not have anything to say.” This

language is sufficient to assert the legal right to remain

silent, O’Brien v. State, 221 Tenn. (25 McCanless) 346, 350,

426 S.W.2d 507, 508 (1968), and “[a]t this point, he has

shown that he intends to exercise his Fifth Amendment

privilege.” Miranda, 384 U.S. at 474, 86S. Ct. at 1627, 16 L.

Ed. 2d at 723. Once an individual invokes his right to

remain silent and the police fail to honor that invocation

by continuing to interrogate him, that violation, by defi-

nition, is on constitutional magnitude. Hartley v. State, 103

N.J. 252, 273, 511 A.2d 80, 91 (1986). See also, Wainwright v.

Greenfield, 474 U.S. 284, 293, 105 S. Ct. 634, 639, 88 L. Ed.

2d 623, 631 (1986) (invocation of the right of silence after

Miranda warnings is of “constitutional dimension”).

App. 13

The dissent maintains that this case is controlled by

Oregon v. Elstad and, as a result, the police failure to

scrupulously honor the defendant's right to cut off ques-

tioning was merely a violation of Miranda's procedural

rules. Elstad, however, addressed the effect of an initial

police failure to administer Miranda warnings on the

admissibility of a defendant’s subsequent statements

made after being fully advised of, and having waived his

Miranda rights. Elstad, 470 U.S. at 300, 105 S. Ct. at 1288,

84 L. Ed. 2d at 226. Like the Supreme Court of New

Jersey, “we perceive a qualitative difference between a

failure to administer Miranda warnings in the first place,

and a failure to honor, after they have been asserted, the

constitutional rights those warnings are designed to

secure.” State v. Hartley, 103 N.J. at 272, 4! A.2d at 90.

Moreover, Justice O’Connor, writing for the majority,

conceded in Elstad “that its new analysis does not apply

where the authorities have ignored the accused’s actual

invocation of his Miranda rights to remain silent or con-

sult with counsel.” Elstad, 470 U.S. at 346, 105 S. Ct. at

1312, 84 L. Ed. 2d at 256, n. 28 (Brennan, J., dissenting).

Justice O’Connor specifically found that “inapposite are

the cases the dissent cites concerning suspects whose

invocation of their rights to remain silent and to have

counsel present were flatly ignored while police subjected

them to continued interrogation.” Id., 470 U.S. at 313-34,

105 S. Ct. 1295, 84 L. Ed. 2d at 235, n. 3.

The dissent, in essence, argues that it is not a consti-

tutional violation if the police inadvertently, as opposed

to deliberately, fail to scrupulously honor an accused’s

initial invocation of the right to silence. We disagree. If

this were the rule, the police could never violate an

App. 14

accused’s constitutional rights as long as one officer gives

the Miranda warnings, and another officer conducts the

interrogation without asking or being told that the

accused responded to the warnings by saying either (1)

that he does not want to talk to the police, or (2) that he

wants an attorney. Adopting the dissent’s argument

would move the state of criminal law back to the time

before Miranda when the admissibility of confessions was

determined only under the due process test of voluntari-

ness without considering whether “the accused [had

been] adequately and effectively apprised of his rights

and [whether] the exercise of those rights [had been] fully

honored.” Miranda, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L.

Ed. 2d at 719. Such a step back in legal time is totally

unacceptable.

Having found that the police violated the defendant’s

state and federal constitutional rights, we must now

determine whether the subsequent taped confession was

involuntary, and whether it must be excluded as the

tainted “fruit” of the constitutional violation. Elstad, 470

U.S. at 305, 105 S. Ct. at 1291, 84 L. Ed. 2d at 230; Smith,

___ S.W.2d at __. Our review of the record convinces us

that, as a matter of state and federal constitutional law,

the taped confession was both involuntary and tainted by

the prior constitutional violation.

In determining whether a subsequent confession was

made knowingly and voluntarily, courts must examine

the totality of the circumstances. Elstad, 470 U.S. at 318,

105 S. Ct. at 1298, 84 L. Ed. 2d at 238; State v. Kelly, 603

S.W.2d 726, 728-29 (Tenn. 1980). The question in each case

is whether the conduct of the law enforcement officers

App. 15

was such to undermine the accused’s free will and criti-

cally impair his capacity for self-determination so as to

bring about an involuntary confession, Columbe v. Con-

necticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d

1037, 1057-58 (1961); Kelly, 603 S.W.2d at 728.

Guided by the voluntariness factors set forth in State

v. Smith, ___ S.W.2d at __, we find that the police conduct

in this case undermined Crump’s free will and brought

about an involuntary confession. The confession imme-

diately followed the 30 to 45-minute drive, where the

police questioned and obtained incriminating statements

from the defendant in violation of his constitutional

rights. As a result, at the time of his confession, the

defendant was still laboring under the’ psychological

impact of having already confessed and “let the cat out of

the bag” during the drive.

Sergeant Moore testified that it was obvious an emo-

tional change took place in Crump when he learned that

the police were on to him and made incriminating state-

ments. Upon making the admissions, Crump was imme-

diately returned to the station, where Detective Elam

observed he showed signs of mental abuse. After his

return to the station, Crump was immediately taken to an

office, where he promptly confessed after he was given

Miranda warnings.

Under these circumstances, we find that Crump’s

taped confession was involuntary. Although we realize

that having already “let the cat out of the bag” does not

automatically vitiate voluntariness, see Smith, __ S.W.2d

at__, we hold that there was not a sufficient break in the

App. 16

stream of events between the first inadmissible state-

ments and the subsequent confession such that the subse-

quent confession may be fairly said to have resulted from

an independent and voluntary act of free will, rather than

a continuous chain of events initiated by the improper

questioning. See Clewis v. Texas, 386 U.S. 707, 710, 87 S. Ct.

1338, 1340, 18 L. Ed. 2d 423, 427 (1967); Westover v. United

States, 384 U.S. 436, 494-97, 86 S. Ct. 1602, 1638-39, 16 L.

Ed. 2d 694, 735-36 (1966). Therefore, we hold that the

prosecution failed to successfully rebut the presumption

that the illegally-obtained, initial statements given on the

drive also tainted the subsequent confession given by

Crump. State v. Smith, supra, __ S.W.2d at __.

In addition to holding Crump’s confession involun-

tary, we also hold that it was obtained as a result of the

prior constitutional violation and, therefore, must be

excluded as the “fruit of the poisonous tree.” The factors

to examined in determining whether a confession has

been purged of the taint of a prior constitutional violation

include: (1) the giving of proper Miranda warnings; (2)

the temporal proximity of the police misconduct and the

confession; (3) the presence of intervening circumstances;

and (4) the purpose and flagrancy of the official miscon-

duct. Brown v. Illinois, 442 U.S. 590, 603-04, 95 S. Ct. 2254,

2261-62, 45 L. Ed. 2d 416, 427 (1975); State v. Chandler, 547

S.W.2d 918, 920 (Tenn. 1977).

Although the officers did administer Miranda warn-

ings before obtaining the taped confession, there were no

intervening circumstances. In addition, the temporal

proximity of the police misconduct to the confession was

too short to purge the confession of the taint of the prior

a

App. 17

constitutional violation. Therefore, we find that the taped

confession is inadmissible “fruit of the poisonous tree.”

CONCLUSION

Accordingly, we hold that the taped confession is

inadmissible in the State’s case-in-chief against the defen-

dant because it was not voluntary, and because it is

tainted by the violation of the ‘'defendant’s state and fed-

eral constitutional rights. We reverse the decision of the

Court of Criminal Appeals and affirm the trial court’s

judgment. This case is remanded to the trial court for a

trial upon the merits. The costs of this appeal are taxed to

the State of Tennessee.

/s/ E. Riley Anderson

E. RILEY ANDERSON, Justice

Reid, C.J., and Daughtrey, J., Concurring

Drowota and O’Brien, JJ., Dissenting

App. 18

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, FOR PUBLICATION

DAVIDSON CRIMINAL

)

)

)

V. ) Hon. Walter C. Kurtz,

)

)

)

Plaintiff-Appellee,

MELVIN CRUMP, Judge.

Defendant-Appellant. S.C No.

01-S-01-9011-CR-00098

DISSENT

(Filed May 18, 1992)

I agree that Defendant’s invocation of his right to

remain silent was not scrupulously honored. However,

because the record does not establish that the officers

used “deliberately coercive or improper tactics in obtain-

ing the initial statement,” see Oregon v. Elstad, 470 U.S.

298, 314, 105 S. Ct. 1285, 1296, 84 L. Ed.2d 222 (1985), I

would hold that the police failure to scrupulously honor

Defendant’s initial invocation of Miranda silence did not

rise to the level of a constitutional violation. Therefore,

the admissibility of Defendant’s later confession should

be determined by examining whether it was made volun-

tarily.

The Fifth Amendment to the United States Constitu-

tion and Article I, Section 9, of the Tennessee Constitution

prohibit compulsory self-incrimination. Actual com-

pulsory self-incrimination, for example, torture or

repeated efforts to wear down a defendant’s resistance,

directly violates these constitutional provisions.

App. 19

In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L. Ed.2d 694 (1966), the United States Supreme Court

promulgated safeguards to combat the compulsion pre-

sumed to be present in all custodial interrogations. State-

ments obtained in violation of these procedural

safeguards are excluded because the procedural violation

creates a presumption of compulsion. Violation of the

Miranda safeguards does not, however, necessarily man-

date the finding of a constitutional violation. See Elstad,

470 U.S. at 307, 105 S. Ct. at 1292 (“Miranda ... provides

a remedy even to the defendant who has suffered no

identifiable constitutional harm”).

Here, Defendant invoked his right to remain silent.

The officers then violated Miranda when they asked

Defendant if he would “mind riding with [them] back to

the scene of where he had escaped.” Because the officers

did not scrupulously honor Defendant’s invocation, the

resulting statements were properly excluded according to

the dictates of Miranda. However, while this violation

resulted in a presumption of compulsion under Miranda,

it did not rise to the level of actual compelled self-

incrimination so as to constitute a constitutional viola-

tion: Defendant was not forced to accompany the officers,

nor was he subject to torture or repeated efforts to wear

down his resistance.

Because there was no constitutional violation, the

Defendant’s subsequent taped confession is not to be

evaluated in terms of whether it is inadmissible “fruit of

the poisonous tree.” Rather, the confession is admissible

if, after examining the totality of the circumstances sur-

rounding the entire course of police conduct, the confes-

sion is found to have been voluntarily made. I would so

App. 20

find, and affirm the Court of Criminal Appeal’s holding

that the Defendant, after being.given a second Miranda

warning, validly waived his right to remain silent and

that therefore the subsequent confession was admissible.

“When neither the initial nor the subsequent admission is

coerced, little justification exists for permitting the highly

probative evidence of a voluntary confession to be irre-

trievably lost to the factfinder.” Elstad, 470 U.S. at 312, 105

S. Ct. at 1294-95. The taped confession should be admit-

ted in the State’s case in chief against the Defendant.

I am authorized to state that Justice O’Brien concurs

in this dissenting opinion.

/s/ Frank F. Drowota, III

FRANK F. DROWOTA, III

JUSTICE