              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                     FILED
                             AUGUST 1998 SESSION
                                                                      April 1, 1999

                                                                   Cecil W. Crowson
STATE OF TENNESSEE,                )                              Appellate Court Clerk
                                   )
              Appellee,            )      No. 01C01-9801-CC-00007
                                   )
                                   )      Rutherford County
v.                                 )
                                   )      Honorable James K. Clayton, Jr., Judge
                                   )
RUDOLPH MUNN,                      )      (First Degree Murder)
                                   )
              Appellant.           )



                      CONCURRING AND DISSENTING OPINION



              I concur in affirming the conviction and most of the reasoning reached in

the majority opinion. I respectfully disagree, though, with my colleagues’ conclusion

that the surreptitious taping of the conversations between the defendant and his

parents did not violate the Fourth Amendment to the United States Constitution and the

federal and state wiretapping statutes. Because I cannot conclude that the admission

of the tainted statements was harmless beyond a reasonable doubt relative to

sentencing, I would reverse the sentence of life without parole and remand the case for

a new sentencing hearing.



              The majority opinion concedes that the defendant had a subjective

expectation of privacy but concludes that it is not an expectation that society should

recognize as reasonable or justified. I believe that the defendant’s expectation of

privacy is one that should be recognized as reasonable and justified in light of the fact

that (1) there was no showing that the conversations were recorded for safety or

security, and (2) the officers, with full knowledge that the conversations were being

videotaped, led the defendant to believe that the conversations were private.
              The facts of this case are somewhat unusual. Officers Peel and Guthrie

requested that the defendant come to the police station for questioning, which the

defendant voluntarily did, accompanied by his parents. He was initially interviewed by

the officers in the Felony Booking Room with his father present. The room was

equipped with a visible audiotape recorder on the table that was used periodically

throughout the interrogation. However, unbeknownst to the defendant or his parents,

the room also contained hidden videotape equipment and microphones which recorded

all of the defendant’s conversations in the room.



              During the first interview, which lasted fifty-four minutes, the defendant

denied any involvement in the murder. The officers then told the defendant he was free

to go and accompanied the defendant and his father to the lobby. However, the

defendant’s mother was concerned, and she asked one of the officers if he thought the

defendant murdered the victim. The officer told the mother to ask the defendant. The

mother continued to express concern that the defendant was not telling everything he

knew. The officers then asked the defendant if he would talk to them without his

parents, and the defendant agreed.



              During the second interview, the defendant continued to deny any

knowledge about the crime despite the fact that the officers confronted him with

inconsistencies in his story. At one point, the defendant asked the officers to turn off

the audiotape that was recording on the table. They complied, and he asked the

officers if he could come back on Monday and speak with them when his parents were

not there. Officer Guthrie told the defendant, “Your momma’s gonna want to talk to me

when I get through here . . . .” A few minutes later, Officer Peel said, “I’m gonna tell you

your momma’s gonna ask me if I think you did it. And I’m gonna say momma yes I do.

And you know what she’s gonna do. She’s gonna have a fit.”




                                             2
             The defendant’s mother then entered the room and asked the officers why

they thought the defendant committed the crime. She then pleaded with the defendant

to tell the police what he knew, and she told him that God would forgive him and that

his family would support him. The defendant continued to tell his mother that he had

already told the officers everything he knew. Officer Guthrie then asked the defendant

if he wanted to speak to his mother by himself, and the defendant said that he did. The

audiotape recorder was off, and the officers left the room. Officer Guthrie went to the

videotape room and watched and listened to the defendant’s conversation with his

mother, during which the defendant eventually said that he killed the victim.



             Following the defendant’s admission to his mother, the officers returned to

the room, and the defendant asked his mother, “Why don’t you go ahead and tell

them?” The defendant’s mother said, “He says he shot [inaudible],” and the defendant

said, “.22 caliber, is that what you found?” The defendant then said, “Don’t turn on the

tape, I would rather not tape it.” Following this conversation, a series of conversations

took place in the room between the defendant, his parents, and the officers. Some

occurred with the defendant and the officers present, some occurred with the defendant

and one or both parents present, and some occurred with everyone present.



              The defendant challenges as inadmissible those conversations that were

recorded when only the defendant and one or more parents were present. He argues

that the recording and subsequent admission into evidence of the conversations

violated his Fourth Amendment right to privacy and the federal and state wiretapping

statutes. As the majority opinion notes, the merits of the defendant’s argument rest on

a determination of whether the defendant had a reasonable expectation of privacy.

See Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516 (1967); State v.

Roode, 643 S.W.2d 651, 652-53 (Tenn. 1982). This requires an analysis of whether

the defendant manifested a subjective expectation of privacy that, when viewed



                                            3
objectively, is reasonable and justified. Id.; see also State v. Bowling, 867 S.W.2d 338,

341 (Tenn. Crim. App. 1993).



              While conceding that the defendant manifested a subjective expectation

of privacy, the majority opinion refers to several cases to support its position that the

defendant’s expectation of privacy is not objectively reasonable. I believe that most of

the cases are distinguishable in that the prosecution showed in them that it was

necessary to record the conversations for police safety relative to prisoners. For

example, in State v. Wilkins, 868 P.2d 1231 (Idaho 1994), the conversation of an

arrestee-defendant was recorded by the emergency dispatcher who testified that

conversations were recorded for police safety. Id. at 1237. Likewise, in State v. Hauss,

688 P.2d 1051, 1055 (Ariz. Ct. App. 1984), the state proved that the arrestee-

defendant’s conversation was recorded because the officers were concerned about the

defendant receiving a weapon or discussing possible escape plans. Also, in United

States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), justification for recording stemmed

from the government’s interests in prison security and order.



              A substantive distinction between those cases and the instant case is that

there has been no showing by the state in the present case that the recordings were

made in the furtherance of police safety. To the contrary, Officer Guthrie testified at

trial that the reason for videotaping conversations is to insure that the officers do not

miss anything. In the context of interviewing an individual who has not been arrested,

the explanation makes sense, but it has nothing to do with safety or security.



              The facts reflect that the conversations between the defendant and his

parents were recorded in the hopes of securing evidence. With respect to the

defendant’s first conversation with his mother, the officers deliberately fostered an

expectation of privacy, knowing that the conversation would be far from private. The



                                             4
officers’ comments to the defendant during their interrogation of him indicated that they

believed the defendant’s mother held considerable influence over the defendant. The

mother’s own questions of the officers indicated that she believed the defendant was

not being forthcoming. When the officers could not get the defendant to admit to the

crime through their questioning, they encouraged the defendant to speak with his

mother alone, anticipating that the defendant would admit the crime to her. Detective

Guthrie even testified that after he left the defendant and his mother alone, he went to

the videotape room and watched the conversation.



              Police safety and security are important and legitimate concerns, and in

the appropriate case, the need for police safety and security can outweigh a

defendant’s right to privacy. This, however, is not that case. The defendant was not in

custody. The police deliberately fostered an expectation of privacy for the purpose of

getting the defendant to confess to his mother what he would not confess to them. The

majority opinion concedes that it does not condone this type of surreptitious behavior.

Not only do I not condone it, but I also believe that it violated the defendant’s Fourth

Amendment rights and the wire tapping statutes.



              For the same reasons, I believe that the three other recorded

conversations that the defendant challenges are also inadmissible. The second

conversation involved the defendant and his father alone in the room, and the

defendant said that he killed the victim for money. The defendant’s mother then

entered, and in that conversation, the defendant further elaborated on the shooting and

told his parents that it was intentional. In the final conversation that the defendant

challenges, his mother and father were present in the room, and he again said that he

shot the victim.




                                             5
              The same inquiry applies to these three remaining conversations as

applied to the first. That is, did the defendant have a subjective expectation of privacy

that was objectively reasonable? Although the officers did not reassure the defendant

each time they left the room that the defendant’s conversations would be private, the

defendant was proceeding under the same expectation of privacy that he had with

regard to the first conversation. The officers did nothing to make the defendant believe

that his subsequent conversations alone with his parents were any less private that the

first one he had with his mother. Again, because the officers deliberately misled the

defendant with respect to the first conversation, that same taint of deceit clouds the

subsequent conversations. Furthermore, there was no showing by the state that the

other conversations were taped for security reasons. Under these circumstances, I

would hold all of the defendant’s conversations alone with his parents inadmissible.



              The remaining issue is whether the admissibility of the private

conversations into evidence was harmless beyond a reasonable doubt. The record

reflects that after the conversations with his parents, the defendant provided details

about the shooting in the presence of the officers. In one conversation, the defendant

admitted to shooting the victim in the presence of Officer Guthrie. In another

conversation, the defendant told Officers Guthrie and Peel, “I wasn’t in over my head, it

was all about the gun and money, it’s always been about money.” Finally, in the last

conversation in the presence of both officers, the defendant stated that he took

responsibility for himself and stated that he was not sorry for his actions because the

defendant “was a dirty little son of a bitch” and was a jerk. I do not believe that the

admission of the defendant’s statements in issue had any effect on the outcome of the

guilt phase of the trial. However, I cannot say the same regarding the sentencing

phase.




                                             6
              The defendant’s discussions with his parents were quite blunt regarding

his feelings and motivations about the killing and were much more detailed about the

events surrounding the murder than he provided to the police. The state relied on

these statements in the sentencing phase. In the context of the jury determining

whether the defendant should or should not have the possibility of parole, I believe that

the statements could seriously affect the jurors’ view of the defendant, particularly as to

determining the relative weight of aggravating and mitigating circumstances. I would

remand the case for a new sentencing hearing.



                                                 _________________________
                                                 Joseph M. Tipton, Judge




                                             7
