           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs September 28, 2010

               STATE OF TENNESSEE v. JOHN EDWARD DAWSON

  Appeal from the Circuit Court for McMinn County and the Criminal Court for
                                 Monroe County
     McMinn Co. Nos. 07-225, 08-239, Monroe Co. Nos. 07-210, 09-004
                              1.Amy Reedy, Judge


                   No. E2009-02469-CCA-R3-CD 1 - Filed January 13, 2011


As part of a global plea agreement disposing of charges in four cases from two separate
counties, the defendant, John Edward Dawson, entered pleas of guilty to three counts of theft
of property valued at $1,000 or more but less than $10,000; one count of burglary; one count
of vandalism of property valued at $1,000 or more but less than $10,000; two counts of the
sale of less than .5 grams of cocaine; and two counts of the sale of a Schedule III controlled
substance in exchange for a total effective sentence of eight years’ incarceration to be served
concurrently with a previously imposed federal sentence. The defendant also reserved for
our review the following certified question of law: “Whether there was sufficient proof of
an interference by State authorities of the defendant’s right to counsel and a showing of
prejudice as a matter of law from the allegations presented at the hearing on the Motion to
Dismiss that letters allegedly drafted by a detective from the Monroe County Sheriff’s
Department and contact directly with a Monroe County detective convinced defendant he
was represented by other counsel and should not communicate with appointed counsel and
thus interfered with defendant’s constitutionally protected right to counsel and due process
under both the United States and Tennessee Constitutions.” Because the egregious actions
of the law enforcement officers in this case substantially and profoundly interfered with the
defendant’s right to counsel under the state and federal constitutions, we reverse the
judgment of the trial court denying the motion to dismiss, vacate the defendant’s guilty pleas,
and dismiss the indictment in each of the four cases.

  Tenn. R. App. P. 3; Judgments of the Circuit and Criminal Courts Reversed and
                                    Dismissed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which N ORMA M CG EE



       1
           The appeals from both counties were consolidated upon motion by the State.
O GLE and C AMILLE R. M CM ULLEN, JJ., joined.

Jeanne L. Wiggins, Assistant District Public Defender, for the appellant, John Edward
Dawson.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and James H. Stutts, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               In May 2007, the McMinn County grand jury returned an indictment in case
number 07-225 charging the defendant with three counts of theft of property valued at $1,000
or more but less than $10,000. In July 2007, the Monroe County grand jury returned an
indictment in case number 07-210 charging the defendant with the sale or delivery of .5
grams or more of cocaine and the sale or delivery of dihydrocodeinone, a Schedule III
controlled substance. In July 2008, the McMinn County grand jury charged the defendant
in case number 08-239 with a single count of theft of property valued at $60,000 or more.
On July 21, 2008, the Monroe County Criminal Court issued a writ of habeas corpus ad
prosequendum to secure custody of the defendant, who was then incarcerated in a federal
penitentiary. Following his return to the jurisdiction, the defendant was arraigned, appointed
counsel, and incarcerated in the Monroe County Jail. Then, in January 2009, the Monroe
County grand jury charged the defendant in case number 09-004 with the sale or delivery of
less than .5 grams of cocaine and the sale or delivery of dihydrocodeinone, a Schedule III
controlled substance.

              On May 7, 2009, the defendant’s appointed counsel filed a motion for a
continuance on the basis of her discovery that a member of the Monroe County Sheriff’s
Department had represented himself as two separate attorneys, had pretended to handle parts
of the defendant’s case on the defendant’s behalf, and had instructed the defendant to cease
communication with appointed counsel. Counsel noted that she had previously requested a
mental evaluation of the defendant in January 2009 on the basis of his claiming to be
represented by a “federal” attorney. One week later, citing the same grounds, counsel filed
a motion to dismiss the indictments in all four cases on the basis that the State had
inappropriately interfered with the defendant’s right to counsel.

                At a May 15, 2009 hearing, the defendant’s counsel stated that despite filing
a request for a speedy trial, she had filed two motions to continue based upon the defendant’s
failure to cooperate with her. She noted that although the defendant had recently become
cooperative, she did not know at that time the full extent of the interference with her

                                             -2-
representation or what privileged information had been garnered by the State as a result of
the fraudulent representation scheme. The trial court, over the State’s objection, permitted
the defendant to present proof of his claims.

              Monroe County Sheriff’s Department Detective Doug Brannon testified that
he had an in-person meeting with the defendant at the Monroe County Jail sometime in
January 2009. Detective Brannon stated that, at the behest of Monroe County Sheriff’s
Department Detective Pat Henry, he met the defendant in a visitor’s booth. According to
Detective Brannon, Detective Henry explained that he had been utilizing Monroe County
inmate Todd Sweet to gain information from the defendant about the defendant’s active
cases. He stated that it was his “understanding that Mr. Sweet had [led] [the defendant] to
believe that Mr. Sweet was connected with, generically the mob or a mob or a gang
organization, a criminal organization and what I was purporting to represent was a contact
of Mr. Sweet’s in that organization.” He said that he did not tell the defendant his name.

               Detective Henry also showed Detective Brannon a letter Detective Henry had
created using the identity of a fictitious attorney named Paul Harris. He stated that Detective
Henry told him that he used such letters as a means to communicate with Mr. Sweet without
having the communications read by jail staff. Detective Brannon testified that he approached
the defendant as asked, and he described their conversation as follows:

                               It was brief, I would guess less than five minutes,
              and it was to, the gist of the conversation was referring to I think
              Mr. Sweet, he tells us, and I’m paraphrasing, he tells us
              generically that you are in, if he trust[s] you I trust you. I
              referred to . . . [i]f when you got out if you were to get a call to
              do a job could you come and do the job, those kinds of things,
              which [the defendant] replied in the affirmative.

Detective Brannon admitted that he also told the defendant, per Detective Henry’s
instructions, “that there was a potential that he would be getting out” on “the following
Saturday.” He said that he told the defendant “to be ready to get out.” Detective Brannon,
who claimed to be unaware of the defendant’s pending charges or the fact that he was
represented by counsel, stated that he did not advise the defendant of his rights, explaining,
“Obviously I was not representing myself as an officer.” He said that he removed from his
person all items identifying him as a police officer and that he borrowed a “dress coat” from
another officer for the purpose of having this meeting to “gather or to reinforce” the
defendant’s trust in Mr. Sweet. He said that he could not recall whether he had told the
defendant that he worked for Paul Harris.



                                               -3-
                Detective Brannon testified that he was present when Detective Henry
 released a vehicle to a man and a woman but that he did not know the reason for the
 vehicle’s release or its connection to the defendant’s case. He also testified that he had
 listened to recordings of conversations between the defendant and Mr. Sweet in the cell they
 shared at the Monroe County Jail.

                Former Monroe County Detective James Patrick Henry, who was working as
 a “securities investigator” for Regions Bank at the time of the hearing, testified that during
 his investigation of the defendant, he began working with Mr. Sweet in an attempt to gain
 information from the defendant. As part of his scheme with Mr. Sweet, Detective Henry
 wrote letters to Mr. Sweet wherein he pretended to be an attorney named Paul Harris. At
 that point in Detective Henry’s testimony, the trial court advised Detective Henry of the 5th
 Amendment privilege against self-incrimination. The court granted a recess for Detective
 Henry to consult a lawyer.

                 Following a brief recess, the court indicated that it wanted to continue hearing
 proof while awaiting the continuation of Detective Henry’s testimony. Monroe County Jail
 Corrections Officer Ronnie Belcher testified that Detective Henry had provided him with
 letters to give to Mr. Sweet. He said the letters indicated that they were sent by an attorney,
 so he treated them as legal mail.

               Monroe County Sheriff’s Department Detective Conway Mason testified that
 he was aware that Detective Henry was utilizing Mr. Sweet to gain information about the
 defendant. He said that he had “downloaded” recorded conversations between Mr. Sweet
 and Detective Henry to compact disc format but that he had not listened to the conversations
 himself.

               The defendant testified that upon his return to Monroe County, he was
 incarcerated in the Monroe County Jail and that Todd Sweet was his cell mate. The
 defendant said that he received a total of six letters purporting to be from attorneys Paul
 Harris and Neil Fink “out of Detroit, Michigan” and that five of the letters were addressed
 to Mr. Sweet and one was addressed to him. He testified that the letters delivered to Mr.
 Sweet were actually directed at him. The letter addressed directly to the defendant, which
 was exhibited to his testimony, purported to be from “Neil Fink, Attorney at Law” 2 and read
 as follows:




        2
        The defendant originally said that the letter was from Paul Harris, and the State argued that the
defendant had made “a false statement under oath.” It is abundantly clear from the record, however, that the
defendant, who had received six letters, was simply confused regarding the author of this letter in particular.
                                                      -4-
                  As I am writing this, I am preparing for a meeting with the
                  District Attorney to get your red Chevy truck released. If all
                  goes as should, the truck should be released no later than
                  Tuesday, December the 30th. I did not call you out personally
                  due to the fact that Mr. Sweet and I could be listened to by TBI.
                  As you are aware Mr. Sweet is facing several charges in
                  multiple states and several law enforcement agencies are
                  attempting to record our conversations. This is why my
                  associate Mr. Harris had the cell checked for recording
                  equipment. Mr. Barrett has assured me through the judge that
                  your release will take place sometime this week. We will talk
                  once your truck is released. Any further conversations should
                  be made through Mr. Sweet because he speaks Sicialian [sic].
                  Do not discuss this matter or your release with any other
                  attorneys or family. To do what we must do it is important that
                  your release is kept quiet. I will see you this week, keep your
                  stuff packed.

Following the defendant’s receipt of the letter, his truck was in fact released to his wife. The
defendant testified that Mr. Sweet spoke exclusively “in Sicilian” when communicating with
“Paul Harris” on the phone “so that the recorders . . . couldn’t understand at the jail what they
were saying.” He stated that he believed that Paul Harris and Neil Fink were lawyers whose
purpose was to secure his release from the jail.

               The defendant testified that Detective Brannon pretended to be working with
attorneys Harris and Fink and that Detective Brannon told him “that everything has went
good with the truck and the truck is fixing to be released, that [he] would be getting out by
the next Saturday, to keep [his] stuff packed.” He stated that when Detective Brannon came
to the jail to meet with him, he was told by Officer Belcher that Detective Brannon was
actually his attorney. He said that attorneys Harris and Fink told him, via Mr. Sweet, to
instruct his appointed counsel “to have this put off as many times” as was possible. He said
that Mr. Sweet spoke on the telephone with Detective Henry, who masqueraded as either
Paul Harris or Neil Fink, and that the two men spoke primarily in “Sicilian.” Following these
conversations, Mr. Sweet would then convey the messages to the defendant. The defendant
said that Mr. Sweet and Mr. Harris spoke on the telephone every day for four months. The
court excluded as inadmissible hearsay those messages conveyed orally to the defendant by
Mr. Sweet.3



       3
           It appears, however, that these statements, because the purpose of their introduction would have
                                                                                               (continued...)

                                                     -5-
             The defendant testified that the remainder of the letters were addressed to Mr.
Sweet but that Mr. Sweet told him the letters were directed to the defendant. The first of
these reads:
                                      LAW OFFICE
                                            OF
                                       Paul Harris

                 TO: Mr. Sweet
                 Re: Truck
                 Advise Mr. Dawson that the release of the truck has been
                 secured. He needs to have a representative from his family
                 contact Detective Henry, at 423-442-5002 at 10 AM on
                 December 31, 2008, to arrange getting the truck from the
                 evidence impound. This issue has successfully been handled,
                 and Detective Henry was advised to release the truck tomorrow.
                 This was the agreement that was reached today with our meeting
                 with him and the assistant district attorney. Mr. Fink will be in
                 touch with you Friday.

                 Respectfully,
                 Paul Harris

Another, also on letterhead of the “Law Office of Paul Harris,” reads:

                 Dear Mr. Sweet,
                 I received your letter and am sorry for the delay in responding.
                 I found that the information that you gave me on your case was
                 interesting. I have begun the process of pro hac vechie [sic] on
                 your behalf. As you are aware from our first conversation, due
                 to the nature of the charges that you are facing, credibility is a
                 major issue to deal with. Before we can meet and discuss this
                 further I need to prepare an argument to present to other court
                 officials. In order to do this I would request that you give me a


                         3
                             (...continued)

been solely for their effect on the hearer and not their truth, would not have been hearsay. See Tenn. R. Evid.
801 (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”). Indeed, it was the defendant’s position that
the statements were patently false.

                                                     -6-
              couple of details of the first series of events that you wrote to me
              about. This would over come the credibility issue and go along
              [sic] way with respect to resolving your issues. Please respond
              to me the same manner as before. I look forward to hearing
              from you soon. I have made arraignments [sic] to speak with
              you in private, and the items you requested will be available,
              upon delivery of the aforementioned details.

              Respectfully,
              Paul Harris

The defendant explained that the items referred to in the letter were things that Mr. Sweet
and Mr. Harris had purportedly discussed during their daily telephone conversations.

              The third letter, also from the “Law Office of Paul Harris,” reads:

              Mr. Sweet,
              I am as s[h]ocked and outraged as you over the cell being
              searched and the disrespect that was shown to you and your cell
              mate. I am and will further be addressing this issue with the jail
              staff. Do not worry, I had a meeting with the assistant DA
              yesterday and all is going forward as planned. You will speak
              to him no later than Monday. By the way Doug is will [sic]
              back in town in a couple of days. He will again meet with you
              both.

              Respectfully,
              Paul Harris

The defendant explained that the “Doug” referred to in the letter was actually Detective
Brannon.

              The last letter, also from the “Law Office of Paul Harris,” reads:

              To: Todd Sweet
              Re: Meeting
              I have been informed by the Jail Administrator that the issue
              with over crowding in your cell has been addressed. I had an
              associate present during the search of your cell, there was no
              recording equipment or bugs in the cell. I was able to defend

                                              -7-
              you and your cell mates on the issue of contraband found,
              stating that the former trust[y] that was in the cell was
              responsible for the items. As you requested your shoes are with
              this letter, and money has been placed on your books. I have
              spoken with Mr. Fink, and he has agreed to handle the property
              issue on behalf of your cell mate. He will address this issue next
              week, due to the holiday, he was unable to approach the
              assistant district attorney. I have also arranged for us to meet
              again next week to prepare more for trial.

              Respectfully,
              Paul Harris

Following the receipt of this letter, money and shoes were provided to Mr. Sweet purportedly
from Mr. Harris. The shoes given to Mr. Sweet were fitted with a recording device.

               The defendant testified that he believed that the fictitious attorneys Harris and
Fink were representing him on all of his charges. He stated that the “lawyers” instructed him
not to cooperate or discuss any of the underlying facts of his cases with appointed counsel.
He said that he believed that “[t]hey had it all under control.” He discussed what he believed
to be his imminent release with his wife and other family members.

                During cross-examination, the defendant testified that he had received attorney
mail only on two previous occasions, once from his federal defender and once from the
assistant district attorney general in the cases at issue. The defendant said that “it hit [him]
April the 9th what was going on.” He stated that when he learned that the assistant district
attorney had authorized the release of his truck, he believed that the district attorney’s office
was involved in the chicanery. He stated that it was possible that he met with retained
counsel at the jail sometime between January 20, 2009, and April 9, 2009, but he could not
specifically recall having done so. He admitted that he received the bulk of his information
from Mr. Sweet, but he maintained that with Detective Brannon’s “coming and acting to be
a lawyer” and the assistant district attorney general’s “releasing [his] truck, [he] thought
everything was true.” He said that he specifically remembered Detective Brannon because
he had promised to get the defendant released from jail.

               During redirect examination, the defendant said that he had no interest in
working with appointed counsel while he was purportedly represented by attorneys Harris
and Fink and that he had turned down plea offers from the State because he thought he would
be released based upon their promises. The defendant said that attorneys Harris and Fink
said that they would call appointed counsel.

                                               -8-
              At that point in the hearing, Detective Henry returned with his newly retained
counsel and invoked his 5th Amendment right to remain silent.

               The defendant’s wife, Katrina Dawson, testified that on one occasion the
defendant asked her “to take a letter and some pictures to the Loudon exit to the Country Inn
Suite, a motel, and leave it for a Neal Fink, and another time it was to a Sweetwater motel
and to leave [it] for a Neal Fink.” She said she left the materials, which had been placed in
an envelope addressed to Mr. Fink, with the front desk clerk at both locations. It was her
understanding that the attorneys were helping the defendant resolve all of his federal and
state charges. She said she “started believing” the ruse when the truck was released to her
“after two years of begging.” She said that the pictures she delivered were of the defendant
holding a recorder he had found in his cell.

               Monroe County Sheriff Bill Bivens testified that conversations made from the
telephones inside the cells were recorded. He stated that he was aware of “some contact as
far as tape recordings” involving Detective Henry and the defendant and of “maybe one or
two of the letters, not nothing to amount to anything other than just one or two, . . . some
correspondence in some manner.” He stated that he did not “see a problem with” Detective
Henry’s scheme but noted “if it’s illegal of course I don’t want to do it.” He said that the
Sheriff’s Department had not investigated Detective Henry’s conduct.

             Tennessee Bureau of Investigation Special Agent David Guy testified that he
had spoken with District Attorney General Steven Bebb about Detective Henry’s using Mr.
Sweet to garner information from other inmates. He explained,

              I had voiced my concern to the General in reference to the use
              of Mr. Sweet by law enforcement in another investigation due
              to the fact that I had been, I had chased Mr. Sweet so to speak
              all the way across the country, knowing that he was an escapee
              from a Michigan prison system, I felt that Mr. Sweet had never
              offered to give anything to law enforcement other than a hard
              time and an attempt to con them out of whatever he could. I felt
              concern that he might try to use this situation to escape if it
              continued and it became something where they were working
              with him [on] a day to day basis, and I voiced my concerns to
              the General. He agreed with me and he said, “I’m going to stop
              that right now,” and so he picks his cell phone up and he makes
              a call and I’m standing there and he speaks to Sheriff Bivens
              advising Sheriff Bivens that he did not want Sweet used in any
              manner in any investigation, that he was in jail on another case

                                             -9-
              and he was represented. That was the end of the conversation
              and they hung up.

He recalled that the conversation took place in November 2008.

              At that point, the hearing was continued because the defendant wanted to
present the testimony of Mr. Sweet but could not do so because Mr. Sweet’s counsel was
unavailable. Defense counsel expressed concerns about the continuance because she was
unsure “that Mr. Sweet will be available after June the 22nd.” The trial court continued the
hearing until August 10, 2009, and set a trial date for October 27, 2009.

                When the hearing reconvened on August 10, 2009, defense counsel indicated
that she had only received the recordings from the jail on the previous Friday and that she
had not had time to review all the recordings. She asked for a continuance, noting that
because she was unsure of the information in the recordings, she did not believe an October
trial date was appropriate. The court agreed to continue the hearing but would not continue
the trial date, stating that “every delay and continuance in this case has been requested and
caused by counsel for the defendant.” The court told counsel that the August 10, 2009
hearing would be “the last opportunity [she had] to put on witnesses in this motion to
dismiss,” despite counsel’s insistence that she did not know where the information contained
in the jail recordings would lead her investigation. The court stated that it would continue
the hearing to October 26, 2009, but that it would not hear witnesses, would not give the
motion priority, and would not allow a great amount of time for the motion on that day.

               When the hearing reconvened on October 26, 2009, the day before the
scheduled trial date, the trial court noted that it “did not intend on taking up a prolonged or
protracted continuation of a motion hearing” and that it was “not planning on listening to a
lot more proof today.” When counsel pointed out that an additional motion had been filed,
the court stated simply, “I didn’t set it today for an additional hearing.” The trial court
restricted the defendant’s proof on that day to argument only, despite defense counsel’s
noting that she had not been provided with the recordings of telephone calls placed from the
jail to Detective Henry posing as either Paul Harris or Neil Fink.

              During her argument at the October 26, 2009 hearing, defense counsel stated
that given Detective Henry’s invocation of his Fifth Amendment rights and the absence of
the recorded telephone conversations, the defense was unable to establish the extent of
communications between the defendant and Detective Henry. She stated, “Mr. Dawson
should not be punished because we cannot get the information that establishes just how far
it went.”



                                             -10-
                The State insisted that the defendant had been provided with all of the relevant
recordings. In addition, despite the rather conclusive proof that Detective Henry had indeed
posed as an attorney and undertaken fraudulent representation of the defendant, the
prosecutor argued that the defendant had failed to present proof “to establish that this
supposed interference with counsel’s ability to prepare actually took place.” The prosecutor
insisted that the defendant had failed to carry his “burden of proof to demonstrate either an
in[ter]ference with representation or an actual prejudicial affect on the ability to carry out the
trial.”

                At the conclusion of the hearing, the trial court denied the motion, concluding
that the defendant had made “a real dumb decision” when he “decided that Todd Sweet is
going to be his lawyer.” The court stated that the defendant “picked his poison and as a
result of that this [c]ourt granted the motion to continue to get him in a position where he
needs to be which is focused on defending these charges and to quit worrying about who
Todd Sweet can help him with or not.”

              Later on that same day, the defendant pleaded guilty pursuant to the global plea
agreement to three counts of theft of property valued at $1,000 or more but less than $10,000;
one count of burglary; one count of vandalism of property valued at $1,000 or more but less
than $10,000; two counts of the sale of less than .5 grams of cocaine; and two counts of the
sale of a Schedule III controlled substance in exchange for a total effective sentence of eight
years’ incarceration to be served concurrently with a previously imposed federal sentence.
The State, based upon its evaluation that there was insufficient proof to support the charge,
entered a judgment of nolle prosequi in McMinn County case number 08-239. The
defendant also reserved for our review the following certified question of law:

               Whether there was sufficient proof of an interference by State
               authorities of the defendant’s right to counsel and a showing of
               prejudice as a matter of law from the allegations presented at the
               hearing on the Motion to Dismiss that letters allegedly drafted
               by a detective from the Monroe County Sheriff’s Department
               and contact directly with a Monroe County detective convinced
               the defendant he was represented by other counsel and should
               not communicate with appointed counsel and thus interfered
               with defendant’s constitutionally protected right to counsel and
               due process under both the United States and Tennessee
               Constitutions.

           In this appeal, the defendant asserts that the actions of Detective Henry and
other members of the Monroe County Sheriff’s Department interfered with his Sixth

                                              -11-
Amendment right to counsel as well as his due process rights and that this court should
presume that the defendant was prejudiced based upon “the extent of the contact both with
respect to the type of relationship . . . and from the protracted period of time” involved. The
defendant also notes that his ability to establish prejudice was hampered by Detective Henry’s
invocation of his Fifth Amendment privilege against self-incrimination. The State concedes
that the actions of the members of the Monroe County Sheriff’s Department interfered with
the defendant’s right to counsel but argues that the defendant has failed to prove prejudice
warranting dismissal. We agree with the defendant.

                One of the fundamental components of our adversarial system of justice, see
Argersinger v. Hamlin, 407 U.S. 25, 29-33 (1972), the right to the assistance of counsel
during all critical stages of the criminal trial process is guaranteed by both the state and
federal constitutions. See U.S. Const. amend. VI (“[I]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel for his defense.”); Tenn. Const. art.
1, § 9 (“[I]n all criminal prosecutions, the accused hath the right to be heard by himself and
his counsel.”). The right to counsel embodied in the Sixth Amendment “‘attaches only at or
after the initiation of adversary proceedings against the defendant . . . . whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.’” United States
v. Gouveia, 467 U.S. 180, 187-88 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89
(1972)). In this state, the right attaches following the issuance of an arrest warrant, the
holding of a preliminary hearing when no arrest warrant precedes the hearing, or the return
of an indictment or presentment by the grand jury. State v. Mitchell, 593 S.W.2d 280, 286
(Tenn. 1980). In this case, because the defendant had been indicted, the Sixth Amendment
right to counsel had attached, and, indeed, counsel had already been appointed to represent
the defendant.

              Once the right to counsel has attached, the State is under an affirmative duty to
ensure that no action is taken to interfere with an accused’s right to counsel. The United
States Supreme Court has explained the role of the State after the right to counsel has
attached:

                Once the right to counsel has attached and been asserted, the
                State must of course honor it. This means more than simply that
                the State cannot prevent the accused from obtaining the
                assistance of counsel. The Sixth Amendment also imposes on
                the State an affirmative obligation to respect and preserve the
                accused’s choice to seek this assistance. We have on several
                occasions been called upon to clarify the scope of the State’s
                obligation in this regard, and have made clear that, at the very
                least, the prosecutor and police have an affirmative obligation

                                               -12-
              not to act in a manner that circumvents and thereby dilutes the
              protection afforded by the right to counsel.

Maine v. Moulton, 474 U.S. 159, 170 (1985). “[K]nowing exploitation by the State of an
opportunity to confront the accused without counsel being present is as much a breach of the
State’s obligation not to circumvent the right to the assistance of counsel as is the intentional
creation of such an opportunity.” Id. at 176; see also generally United States v. Henry, 447
U.S. 264 (1980); Brewer v. Williams, 430 U.S. 387 (1977); Spano v. New York, 360 U.S. 315
(1959). When “seeking evidence pertaining to pending charges,” the investigative tools of
the State “are limited by the Sixth Amendment rights of the accused.” Moulton, 474 U.S. at
179-80.

               That being said, “[c]ases involving Sixth Amendment deprivations are subject
to the general rule that remedies should be tailored to the injury suffered from the
constitutional violation and should not unnecessarily infringe on competing interests.”
United States v. Morrison, 449 U.S. 361, 364 (1981). Morrison, as does this case, involved
law enforcement interference with the defendant’s right to counsel. In that case, members
of the Drug Enforcement Agency (“DEA”) attempted to interrogate Morrison after formal
charges were levied and after she had retained counsel. Agents disparaged Morrison’s
retained counsel and encouraged her to communicate with them despite her counsel’s advice
to remain silent. Unlike this case, however, Morrison immediately reported the inappropriate
contact to her counsel, who then filed a motion to dismiss based upon the agents’ conduct.
The Supreme Court recognized that the agents had violated Morrison’s right to counsel but
found that dismissal of the indictment was inappropriate given that Morrison had not alleged
and could not prove even a transient deprivation of the right to counsel. The court observed
that unless the constitutional infringement “has had or threatens some adverse effect upon
the effectiveness of counsel’s representation or has produced some other prejudice to the
defense,” no remedy was warranted. Id. at 365.

              The facts presented here differ in two very important ways from those
presented in Morrison. First, the DEA agents who violated Morrison’s right to counsel
identified themselves as law enforcement officers. Here, despite the attachment of the
defendant’s constitutional right to counsel and his appointment of counsel, Detective Henry
adopted a scheme with the help of the defendant’s cell mate, Todd Sweet, to garner the
defendant’s trust and actively engage the defendant in discussing the facts of his pending
cases by pretending to be a licensed attorney willing to undertake representation of the
defendant. As part of this scheme, Detective Henry authored letters under the guise of
lawyers named Paul Harris and Neil Fink. The detective went so far as to create letterhead,
have the letters delivered in the same manner as other legal mail, and to manipulate the
circumstances of the defendant’s case to make it appear as though the fictitious attorneys

                                              -13-
were securing positive results in their representation of the defendant. Both the defendant
and his wife testified that they became completely convinced of the legitimacy of the letters
and Mr. Sweet’s promises after Detective Henry arranged the release of the defendant’s
truck. Detective Henry’s subterfuge did more than simply infringe upon the defendant’s right
to counsel, it completely usurped it. Because the violation remained unknown to the
defendant, he was unable, as Morrison was, to immediately report the violation and subject
it to remedy. As a result of Detective Henry’s actions, the defendant remained wholly
without the benefit of counsel for a period spanning several months. During this time, the
indictment in case number 09-004 was returned against the defendant. When a defendant
remains without the benefit of “counsel able to invoke the procedural and substantive
safeguards that distinguish our system of justice, a serious risk of injustice infects the trial
itself.” Cuyler v. Sullivan, 446 U.S. 335, 343 (1980).

              Second, where Morrison simply could not prove prejudice under the
circumstances of her case, the defendant here was prevented from proving any prejudice by
Detective Henry’s invocation of his Fifth Amendment right to remain silent. Because
Detective Henry exercised his right to remain silent under the Fifth Amendment, the
defendant could not establish what, if any, information was gained from the elaborate ruse.
The defendant’s attempt to establish prejudice was further hampered when the trial court
erroneously excluded as hearsay the defendant’s own testimony about conversations between
the parties. The defendant was again thwarted in his attempt to prove prejudice when Mr.
Sweet did not testify at the May 15, 2009 hearing due to the unavailability of his lawyer and
then the defendant was prohibited from presenting testimony at the October 26, 2009 hearing.
In consequence, any failure of proof in this case was not occasioned by any action or inaction
of the defendant.

               Although the Morrison Court, in a footnote, cautioned against the use of
dismissal of the indictment as a means to deter the deliberate infringement of the right to
counsel, particularly in the absence of a showing of specific prejudice, the conduct of the law
enforcement officers in this case, and in particular Detective Henry, is so egregious that it
simply cannot go unchecked. That Detective Henry would illegally pose as an attorney4 and
arrange the circumstances of the defendant’s case to make it appear as though he had
successfully undertaken legal representation of the defendant is abhorrent. That the detective
would specifically instruct the defendant not to communicate the relationship to his
appointed counsel, in what we can only assume was an effort to enlarge the time for the
detective to gain incriminating information from the defendant, renders completely



        4
          “It is unlawful for any person who is not licensed to do so, to practice or pretend to be licensed to
practice a profession for which a license certifying the qualifications of the licensee to practice the profession
is required.” T.C.A. § 39-16-302(a) (2006).
                                                      -14-
reprehensible the state action in this case. Given the unconscionable behavior of the state
actors in this case and the fact that the defendant was essentially prevented from proving
prejudice through no fault of his own, we have no trouble concluding that the only
appropriate remedy in this case is the dismissal of all the indictments.

               Accordingly, the judgments of the trial court denying the defendant’s motions
to dismiss in each case are reversed. The defendant’s pleas are vacated, and the indictments
in McMinn County case numbers 07-225 and 08-239 and Monroe County case numbers 07-
210 and 09-004 are dismissed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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