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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
May 28, 2008 Session, Heard at Cookeville1 STATE OF TENNESSEE v. MARCO M. NORTHERN
Appeal by permission from the Court of Criminal Appeals Criminal Court for Davidson County No. 2004-A-664 Steve Dozier, Judge

No. M2005-02336-SC-R11-CD - Filed August 26, 2008

We granted this appeal to consider whether the courts below correctly held that Missouri v. Seibert, 542 U.S. 600 (2004), does not bar the introduction into evidence of the defendant's Mirandized2 videotaped confession which occurred after the defendant made an incriminating admission during a prior unwarned custodial interrogation. This Court has not previously interpreted and applied Seibert. After carefully considering the plurality opinion, the concurring opinions, and the dissenting opinions in Seibert, we conclude that the courts below correctly held that Seibert does not bar admission of the defendant's videotaped confession. We further hold that this Court's decision in State v. Smith, 834 S.W.2d 915 (Tenn. 1992), interpreting the right against self-incrimination provided by article I, section 9 of the Tennessee Constitution, does not bar admission of the defendant's videotaped confession. Accordingly, we affirm the judgment of the Court of Criminal Appeals, which affirmed the defendant's conviction of second degree murder but remanded for resentencing. Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed WILLIAM M. BARKER, C.J., delivered the opinion of the court, in which CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH , JR., JJ., joined. JANICE M. HOLDER , J., concurring and dissenting. Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant District Public Defender (on appeal); and Jason Gichner and Amy D. Harwell, Assistant District Public Defenders (at trial), for appellant, Marco M. Northern.

Oral arguments were presented at Derryberry Hall on the campus of Tennessee Technological University in Cookeville, Putnam County, Tennessee, as a part of the Supreme Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.
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Miranda v. Arizona, 384 U.S. 436 (1966).

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero and Amy Eisenbeck, Assistant District Attorneys General, for appellee, State of Tennessee.

OPINION I. Factual Background On October 27, 2003, at approximately 10:30 p.m., Metropolitan Nashville police officers were dispatched to an automobile accident with injuries at the corner of Sixteenth Avenue and Wheelus Street in Nashville, a neighborhood notorious for drug deals and prostitution. Upon arriving at the scene, the police discovered that a red Dodge Ram truck had collided with a fire hydrant and a utility pole, causing the pole to collapse. The unconscious white male driver of the truck appeared to be dead, but the police were unable to aid him or to remove him from the vehicle because live electrical power lines were draped over the truck. The officers requested assistance from Nashville Electric Service ("NES") and the fire department. After NES personnel arrived and turned off the electrical power, police and fire department personnel removed the driver, later identified as James Combs, from the vehicle and placed him in an ambulance. Emergency medical technicians were unable to revive Combs, but they discovered a gunshot wound on his left side and notified the police. Learning of the gunshot wound, the officers declared the accident scene to be a homicide crime scene and requested assistance from the homicide division. At approximately 11:30 p.m., homicide detective Charles Robinson arrived, inspected the scene, made notes, and canvassed the neighborhood for witnesses. Detective Robinson and other officers went house-to-house inquiring whether anyone had heard or seen what had happened. Using flashlights and vehicle headlights for illumination, Detective Robinson and the officers searched the scene for shell casings for several hours. The officers did not find witnesses, shell casings, or any other evidence to assist them in solving the crime. Over the next two days, Detective Robinson and three other detectives returned to the scene and again canvassed the area. As a result of these efforts, the detectives determined that the shooting actually occurred near Cockrill and Sixteenth Avenue. While they were unable to develop a formal suspect list, detectives were able to compile a list of persons who were seen in the vicinity of the shooting. Detectives returned to the area on each of the next several days, interviewing residents and other persons who had been seen in the vicinity of the shooting. On November 5, during one of these interviews, the detectives saw the defendant walking along the opposite side of the street. The defendant was listed among the persons seen in the vicinity of the shooting, so the detectives called out to him, intending to conduct an interview. However, the defendant ran from the area and eluded the detectives. -2-

About the same time the next day, November 6, the detectives returned to the area. Seeing the defendant in a nearby yard, they again called out to him, and again, he ran away, but an area resident blocked his escape route, enabling the detectives to overtake him. Detective Robinson asked whether the defendant knew why the detectives wanted to speak with him, and the defendant replied, "about that white man in the red truck." When asked why he had fled, the defendant replied that he had drugs in his possession. Upon searching the defendant, the detectives found marijuana and crack cocaine. They arrested the defendant for drug possession and transported him to the Criminal Justice Center. At this time, however, the detectives did not administer the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966). After they arrived at the Criminal Justice Center, Detective Robinson seated the defendant at a table in the center of the "Murder Squad Office" while he and the other detectives completed paperwork on the defendant's drug-related arrest at desks surrounding the table. As they worked, the detectives discussed the shooting among themselves. In general, the conversation minimized the shooter's responsibility and implied that the victim assumed the risk of being murdered when he drove late at night into a neighborhood notorious for crime. After listening to the detectives' conversation for about twenty minutes, the defendant announced that he had been present at the shooting. Detective Robinson then stopped his paperwork and re-located the defendant to an interview room, advising the defendant as they walked to be truthful because the defendant likely would be administered a polygraph after the interview. As they entered the interview room, Detective Robinson turned on a videotape recorder. After Detective Robinson administered the Miranda warnings and reviewed a rights-waiver form, the defendant signed the waiver. Detective Robinson then began questioning the defendant, using open-ended questions and speaking in a conversational and non-adversarial tone. The questioning remained polite and courteous throughout the interview. Neither the defendant nor Detective Robinson ever raised his voice, became upset or excited, or left his seat. The defendant was not restrained in any way during the interview, nor did he attempt to leave the interview room. The defendant did not request an attorney or ask to speak to family members. Detective Robinson alone conducted the interrogation, and no other detective or law enforcement official came into the room during the interrogation. Detective Robinson asked the defendant to tell him what happened, and the defendant readily confessed to shooting the victim, explaining that the shooting occurred because the victim tried to drive away with the defendant's crack cocaine without paying for it. According to the defendant, he had been riding his bicycle along the street when the victim's vehicle stopped in front of him. After directing the defendant to the driver's side window, the victim asked for "dope." The defendant handed the victim a rock of crack cocaine about the size of a pencil eraser. When the victim complained that the quantity of cocaine was not worth the defendant's asking price, the defendant told the victim to either return the drug or pay for it. According to the defendant, the victim behaved strangely and leaned away from the window, causing the defendant to point his gun at the victim and again demand the return of the drug. The defendant then heard the engine "rev up." As the victim drove away with the drug, the doorframe of the truck struck the defendant's arm, and -3-

he shot the victim. The defendant implied that the shooting was an unintentional result of the doorframe striking his arm. However, at other times during the interrogation the defendant admitted he intentionally shot the victim to prevent the victim from stealing the drug. When Detective Robinson asked about the murder weapon, the defendant said he had thrown it into the Cumberland River. The police never recovered the weapon. The defendant was indicted for first degree premeditated murder. Prior to trial, he filed a motion to suppress his videotaped confession, arguing that the detectives had previously interrogated him without providing Miranda warnings. Specifically, the defendant argued that the detectives' conversation about the shooting as he sat within earshot at the table in the Murder Squad Office constituted the functional equivalent of express questioning for purposes of Miranda. While the defendant admitted Detective Robinson provided him Miranda warnings at the beginning of the subsequent videotaped interrogation, the defendant maintained that the prior unwarned interrogation tainted his videotaped confession, making it inadmissible as "fruit of the poisonous tree" and as a continuation of the prior unwarned interrogation. The defendant also argued that he had been using drugs and alcohol on the day of his arrest and was too intoxicated to understand his rights when he signed the waiver. At the hearing on the motion to suppress, Detective Robinson and the defendant testified. The videotape of the postwarning interrogation also was introduced in evidence. The trial court described the defendant's testimony that he had been so intoxicated he could not understand his rights when he signed the waiver as inconsistent with his testimony accurately recollecting the events of the evening of his arrest. After "review[ing] the videotape," the trial court opined that the defendant "was fully aware of the rights he was waiving and appeared to provide coherent responses to the detective's questioning." The trial court also pointed out that the "defendant['s] . . . previous felony arrests" made him "familiar with the process." In determining whether the defendant's argument that his initial unwarned interrogation rendered his postwarning interrogation inadmissible, the trial court framed the threshold question as "whether it would be reasonable to find that in these circumstances the warnings could function `effectively' as Miranda requires." The trial court pointed out that no proof had been presented to indicate that the detectives routinely withhold Miranda warnings and interrogate a suspect until a confession is gained. The trial court also concluded that no evidence indicated that the officers' earlier discussions about the shooting coerced the defendant or prevented him from understanding his Miranda rights and voluntarily speaking with Detective Robinson during the postwarning videotaped interrogation. Accordingly, the trial court denied the motion to suppress. The case proceeded to trial. The State's primary evidence against the defendant was the videotaped confession. While the police searched the victim's truck and the scene of the shooting, they recovered neither the crack cocaine nor any other physical evidence implicating the defendant in the shooting. However, the State offered the testimony of Michael Martin, an acquaintance and former neighbor of the defendant who was incarcerated at the time of trial. Martin recalled that he and the defendant drank whiskey together at Martin's home during the day and the early evening of October 27, when the murder occurred. According to Martin, the defendant left on his bicycle while -4-

it was still daylight. Martin recalled the defendant saying as he rode away: "I ain't got no money, I'm flat going to rob somebody." Martin continued drinking after the defendant left, and he did not take seriously the defendant's comment. According to Martin, about thirty minutes to one hour after the defendant left, he heard two gunshots and a crash. Martin walked to the site of the crash, saw the victim's Red Dodge truck, but did not see the defendant or his bicycle in the area. According to the medical examiner, the autopsy revealed the victim died from lethal blood loss caused by a penetrating gunshot wound to the left side of his body. Therapeutic levels of Valium as well as metabolites of cocaine were found in the victim's blood, meaning the victim had used cocaine several hours before his death but was not under its influence at the time of the shooting. While the medical examiner recovered two bullets, there was only one entry wound. According to a ballistics expert, these "tandem" bullets were caused by the gun having been previously fired but the bullet not discharging from it. When the victim was shot, a second bullet discharged, struck the undischarged bullet, and propelled it along the same path as the second bullet. These bullets traveled the same path until they entered the victim's body, where one bullet lodged near the victim's armpit and, after striking his aorta and pulmonary artery, another bullet lodged in the victim's chest wall. The bullets traveled a relatively straight, left to right, slightly downward path. Gunpowder stippling found around the bullet hole in the victim's shirt showed the firearm had been located six inches or less from the victim's body when it was fired. Based on the foregoing proof, the jury convicted the defendant of the lesser included offense of second degree murder. The trial court sentenced the defendant to twenty-four years as a Range I standard offender with no early release eligibility. The defendant appealed, raising five issues. The Court of Criminal Appeals affirmed the defendant's conviction of second degree murder but remanded for a new sentencing hearing. The defendant thereafter filed an application for permission to appeal raising a single issue: Did the Court of Criminal Appeals correctly hold that Missouri v. Seibert, 542 U.S. 600 (2004), does not bar admission of the defendant's post-Miranda statement despite a finding that his pre-Miranda statement was the product of custodial interrogation? We affirm the judgment of the Court of Criminal Appeals. II. Standard of Appellate Review On appeal from the denial of a motion to suppress, we review the trial court's legal conclusions de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). In conducting this analysis, we defer to the trial judge's findings of fact unless the evidence preponderates against those findings. See State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). "[C]redibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted

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to the trial judge as the trier of fact." Odom, 928 S.W.2d at 23; accord Walton, 41 S.W.3d at 81.3 The party prevailing in the trial court is afforded the "strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence." State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see also State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23. III. Admissibility of Defendant's Confession On appeal, the defendant presses his claim that the detectives, through the functional equivalent of express questioning, interrogated him without providing Miranda warnings until they obtained an incriminating admission, and that this prewarning admission led to his subsequent Mirandized videotaped confession. The defendant argues that Seibert mandates suppression of his videotaped confession in these circumstances. The State responds that the detectives' conversation among themselves did not amount to interrogation as it did not constitute the functional equivalent of express questioning. The State points out that Detective Robinson provided Miranda warnings before initiating the videotaped custodial interrogation, and that the defendant executed a written waiver of his Miranda rights. The State maintains, therefore, that Seibert is irrelevant because this case does not involve an unwarned custodial interrogation followed by a Mirandized custodial interrogation. The defendant's claim requires us to revisit several decisions of the United States Supreme Court and interpret and to apply as a matter of first impression the 2004 decision in Missouri v. Seibert. A. Custodial Interrogation Historically, courts of the United States evaluated the admissibility of confessions under a voluntariness test that originated in the common law courts of England and which recognized that coerced confessions are inherently untrustworthy. See Dickerson v. United States, 530 U.S. 428, 432-33 (2000) (discussing the history and development of the voluntariness test). Two constitutional bases were cited for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. Id. at 433. However, "for the middle third of the 20th century" decisions of the United States Supreme Court "based the rule against admitting coerced confessions primarily, if not exclusively, on notions of due process." Id. While the Court has never abandoned its due process jurisprudence, the Court's landmark Miranda decision shifted the focus for determining the admissibility of confessions from the Due Process Clause of the Fourteenth Amendment to the Self-Incrimination Clause of the Fifth Amendment. Id. at 434. The Self-Incrimination Clause guarantees that "[n]o person . . . shall be

De novo review applies when a trial court's findings of fact are based solely on videotaped evidence that appellate courts are as capable as trial courts of reviewing and assessing the credibility. State v. Payne, 149 S.W .3d 20, 25 (Tenn. 2004); State v. Binette, 33 S.W .3d 215, 217 (Tenn. 2000). De novo review does not apply in this appeal, however, because the trial court's findings of fact were based on both live testimony and a videotaped confession.

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compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.4 In Miranda, the Court opined that the coercion inherent in modern custodial police interrogation blurs the line between voluntary and involuntary statements and heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself." 384 U.S. at 439. In order to lessen the risk of such an inherently coercive atmosphere, the Court declared that "the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." Id. at 467. To avoid the difficult post hoc judicial inquiry into the circumstances of police interrogations common to the voluntariness test, the Court articulated "concrete constitutional guidelines for law enforcement agencies and courts to follow." Id. at 442; see also Dickerson, 530 U.S. at 444. Specifically, the Miranda Court held the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444. Now familiar, Miranda's procedural safeguards require the police to warn a person, prior to any custodial interrogation, that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. Id. at 478. The warnings and waiver mandated by Miranda "are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant" during custodial interrogation, whether inculpatory or exculpatory. Id. at 444, 476-77. When Miranda warnings are given and a waiver obtained, the prosecution has "a virtual ticket of admissibility" for any resulting custodial statement of the defendant. Seibert, 542 U.S. at 608-09. Indeed, "maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina" and usually is a losing argument in court. Id. at 609; see also Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) ("[C]ases in which a defendant can make a colorable

The federal constitutional privilege against self incrimination applies to the states though the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964) ("The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement

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