          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON
                                                       FILED
                         FEBRUARY 1998 SESSION
                                                      September 21, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                )    C.C.A. NO. 02C01-9708-CC-00297
                                   )
           Appe llant,             )
                                   )    WEAKLEY COUNTY
                                   )
V.                                 )
                                   )    HON . WILL IAM B. AC REE , JR.,
                                   )    JUDGE
DAVID BORNFRIEND,                  )
                                   )    (CRIMINALLY NEGLIGENT
           Appellee.               )    HOMICIDE AND ARSON)



FOR THE APPELLEE:                       FOR THE APPELLANT:

STEVE CONLEY                            JOHN KNOX WALKUP
BRUCE S. CONLEY                         Attorney General & Reporter
Conley, Campbell, Moss & Smith
P.O. Box 427                            ELIZABE TH T. RY AN
Union City, TN 38261                    Assis tant At torney Gen eral
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        THOM AS A. THO MAS
                                        District Attorney General

                                        JAMES T. CANNON
                                        Assistant District Attorney General
                                        P.O. Box 218
                                        Union City, TN 38261-0218




OPINION FILED:_____________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Appellant, the State of Tennessee (state), appeals from a judgment of the

trial court suppressing three statements m ade by D avid Born friend (de fendan t) to

law enforce ment o fficers. The state appeals pursuant to Rule 3(c) of the Tennessee

Rules of Appe llate Procedure on the basis that the trial court’s order granting the

motion to suppress had the substantive effect of dismissing the indictment against

the defendant.      In this co urt, the s tate co ntend s “the tria l court e rrone ously

suppressed the three statements given by the defendant because none of the

stateme nts were involun tary.” After a th orough review of th e record , the briefs

submitted by the parties, and the law governing the issue prese nted fo r review , it is

the opinio n of this co urt that the ju dgme nt of the trial co urt shou ld be affirm ed.



       On May 5, 1997 , the We akley Coun ty Grand Jury re turned a two count

indictment charging the defendant with criminally negligent homicide, a Class E

felony, and rec kless bu rning, a Class A misdemeanor. The indictment alleges these

two offenses were committed on January 11, 1997.



       The facts in the record are rather sparse. The defendant was eighteen (18)

years of age and a student at the University of Ten ness ee at M artin. H e resid ed in

a dormitory located on the university’s campus. During the early morning hours of

January 11, 1997, the defendant and a female companion were in the de fenda nt’s

dormitory room. It appears the defendant lit a candle and went to sleep. He was

awakened by the female companion and told there was a fire in the room. He

noticed portions of the dormitory room were on fire. The defendant ordered the

fema le companion to exit the room. He attempted to extinguish the fire but was


                                              2
unsu cces sful. He then left his room. A pers on res iding in the dormitory was killed

as a result of the fire.



       The defendant sustained burns to his hands, stomach, thigh, and legs. He

also inhaled a considerable amount of smoke. Someone carried him from the

dormitory and took him to the Columbia Volunteer General Hospital. The defendant

arrived in the emergency room at approximately 2:45 A.M. The burns sustained by

the defendant were extremely painful. The pain intensity scale contained in the

medical records has a range of zero to ten. The medical records state the defendant

was suffering the most severe pain, a level of ten.         The defendant was given

Demorol for pain an d Phen ergan fo r nause a. Both of these medications have a

sedative effect. The defendant was released from the hos pital the next day, Janu ary

12, 199 7. A phys ician advis ed the d efenda nt to “take re st for one w eek.”



       The defendant made three (3) statements to officers from the University of

Tennessee at Martin Police Department and the Tennessee Fire Marshall’s Office.

The first statement was given to Lieutenant Darrell Simmons, an investigator

employed by the University of Tennessee at Martin Police Department, who was

assig ned to investig ate the fire.    Lieu tenan t Simm ons w ent to th e Colu mbia

Volunteer General Hospital to determine the status of the individuals injured by the

fire. When he visited the defendant, the defendant was unconscious. He later

returned to interview the defendant at 7:45 A.M. and discovered the defendant was

still unconscious.



       Lieutenant Simmons and Johnny Hayes, who was employed by the State of

Tennessee Fire Marshall’s Office as an arson investigator, went to the hospital later

                                           3
on the morning of January 11, 1997.            The officers attempted to interview the

defendant. Lieutenant Simmons testified the defendant “could talk okay, but he

wasn’t totally clear. He would fade in and fade out.” When asked if the defendant

was able to respond to the questions propounded, Lieutenant Simmo ns stated “to

a degree, he was.” According to Lieutenant Simmons, the defendant would answer

a question, rotate his head, and close his eyes. When asked another question, the

defendant would rotate his head towards Simmons and Hayes, answer the question,

rotate his head, and close his eyes. This statement was not recorded.



       On the morn ing of January 13, 1997, a subpoena duces tecum for the

defen dant’s medical records and blood tests was obta ined. The subpoena was

issued without a docket number since no charges had been filed. La ter in the day

on January 13, 1997, Lieutenant Simmons asked the defendant to come to the

Department of Safety building on campus because he wanted to talk to him about

the details of the fire . The d efend ant ap peare d at 2:4 5 P.M . and w as inte rviewe d in

the conferen ce room . The de fendan t’s medic al record s were re leased prior to the

interview. The interview lasted for approximately one hour and fifteen minutes and

the defendant’s statement was tape recorded. During the interview, the defendant

told Simmons and H ayes tha t he had no reco llection of talkin g to them on J anuary

11, 1997.


       The following colloquy also took place during the interview:


       Defen dant: Am I required to answer these questions?

       Hayes:        You don’t have to answer them, David. What we are trying to do,
                     David, is we are--I am sure that by now you know that this is a
                     very serious matter. I am sure that you know that the guy across
                     the hall--he didn’t make it through the fire.



                                             4
      Defen dant: Yeah--w hich I dee ply regret.

      Hayes:        I understand that, sir. All we are trying to do is that we are trying
                    to find out what the facts are, David. That’s all we’re doing.
                    What we are talking to you about in here is confidential. It’s not
                    going to be in the ne wspa per, on TV, n obod y is goin g to kn ow all
                    this stuff. My files are strictly confidential. The people who get
                    my files are my boss es in Nash ville and the District Attorney.
                    Okay, that’s all. If you were--just “yeah, we were” because at
                    some point down the road, we may have to ask you to be more
                    specific but today w e are not going to get into all that, okay?

      Defen dant: Yeah.



      At the conclusion of the interview, the officers reiterated to the de fenda nt “this

conversation, like we said, is c onfide ntial, between us.”       Lieutenant Simmons

arranged for a third interview on January 22, 1997. The following colloquy took

place during Simmon’s direct examination:


      Q.     Where did this interview take place?

      A.     In the conferen ce room a t the Departm ent of Safety.

      Q.     How was it arranged?

      A.     It was arranged by me.

      Q.     Wh at did you do to get M r. Bornfrien d there?

      A.     I asked Mr. Bornfriend could he come back for a follow up interview.

      Q.     Did he agree to do so?

      A.     Yes, he did.

                                          ****

      Q.     At the conclusion of the interview, what happened to Mr. Bornfriend;
             was he allowed to leave at tha t point?


      A.     Yes, he was.




                                            5
       The record does not reflect what the defendant said during the January 22,

1997 inte rview.



       The trial court suppressed all three statem ents given by the de fendan t. The

court found that due to the pain medication the defendant was receiving at the

hospital when the first statement was given on January 11, the statement was “not

a voluntary and willing statement.” In regards to the statement given on January 13

at the Public Safety Building, the trial court ruled that the prior issuance of the

subpoena duces tecum constituted the initiation of formal criminal charges and

resulted in the attac hmen t of the defe ndant’s S ixth Amendment right to counsel. The

court suppressed this statement since the defendant was interrogated without

counsel presen t. The trial court also supp resse d the s tatem ent on the ba sis tha t it

was not voluntary due to the officers’ promises of confiden tiality. The trial court

suppressed the statement made on January 22 on th e bas is that th e defe ndan t’s

Sixth Amendment right to counsel had attached and the offic ers’ promise of

confiden tiality had ne ver been revoked .



                                 I. Standard of Review




       When an accused is afforded an evidentiary hearing on the m erits of a motion

to suppress, the findings of fact made by the trial court are binding upon the

appellate court unless the evidence contained in the record preponderates against

these findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of

credibility of the witnesses, the weight and value of the evidence, and resolution of

conflicts in the evide nce are matters entruste d to the trial jud ge as the trier of fact.”

Id.   Provided that the gre ater we ight of th e evide nce s uppo rts the tria l court’s

                                             6
findings, then thos e findings shall be u pheld b y the app ellate cou rt and the party

prevailing in the trial court is entitled to the strongest legitimate view of the evidence

and all rea sonab le inferenc es which may be drawn fro m that e vidence . Id.



      This court must now examine each statement given by the defendant and

determine whether the trial court erred in finding they were not voluntary. To

determine voluntarine ss, this cou rt must look at the totality of the circumstances.

Oregon v. Elstad, 470 U.S . 298, 318 , 105 S. C t. 1285, 12 98, 84 L .Ed.2d 22 2, 238

(1985); State v. Crump, 834 S.W .2d 265, 271 (Tenn.), cert. denied, 506 U.S. 905,

113 S. Ct. 298, 121 L.Ed.2d 221 (1992). This court must also evaluate the last two

statem ents given by the defen dant to determ ine wh ether th e trial co urt erre d in

finding they were obtained in violation of the defen dant’s S ixth Ame ndme nt right to

coun sel.



                              II. January 11 Statement




       A confession mus t be free ly, volun tarily an d kno wingly made or it should be

suppressed beca use it w as ob tained in violation of the d efend ant’s rights under the

Fifth Amendment to the United States Constitution and Article I, § 9 of the

Tennessee Constitu tion.     State v. P ritchett, 621 S.W .2d 127, 133 (Tenn. 198 1);

State v. Gentry, 881 S.W.2d 1, 5 (Tenn. Crim. App. 1993). The Fifth Amendment

applies to the states through the Fourtee nth Am endm ent. Malloy v. Hogan, 378 U.S.

1, 84 S. C t. 1489, 12 L.Ed.2d 653 (19 64); State v. Crump, 834 S.W .2d at 268 .



      The test for the vo luntariness of confessions pursuant to Article I, § 9 of the

Tennessee Constitution is broader than the test for voluntariness under the Fifth

                                            7
Ame ndme nt. State v. Stephenson, 878 S.W .2d 530 , 544 (T enn. 19 94); State v.

Smith , 834 S.W.2d 915, 9 18-19 (Ten n. 199 2). As o ur sup reme court n oted in

Crump:


      The significant difference between these two provisions is that the test of
      voluntariness for confessions under Article I, § 9 is broa der and more
      protective of individual rights than the test of volun tariness w as und er the Fifth
      Ame ndme nt.

834 S.W .2d at 268 ; see State v. S mith, 834 S.W.2d at 915.



       The defendant asserts that at the time he gave his first statement to the police

he was so impaired by the medication he was receiving in the hospital that his

statement was no t the product of a free mind and rational intellect. Before an

accused is entitle d to ha ve his statem ent suppressed on the grounds that he was

under the influence of alcohol and/or narcotic drugs, it must be established that the

accu sed’s faculties were so impaired that the statement could not be considered the

product of a “free mind and rational intellect.” Vand ergriff v. State, 409 S.W.2d 370,

373 (Tenn . 1966); State v. Robinson, 622 S.W.2d 62, 67 (Tenn. Crim. App. 1980),

cert. denied, 454 U .S. 1096 , 102 S. C t. 667, 70 L .Ed.2d 6 36 (198 1); see Bram v.

United States, 168 U.S. 532, 18 S. Ct. 183, 42 L.Ed. 568 (1897). If it is established

that the accuse d was c apable of giving a n arrative of p ast even ts and/o r relating his

role in the commission of the offense, the statement is generally admissible

notwithstanding the fact that the accused was under the influence of alcohol and/or

narcotics when he made the sta temen t. State v. Green, 613 S.W.2d 229, 232-33

(Tenn. Crim. App. 1980); Duke s v. State, 578 S.W.2d 659, 663 (Tenn. Crim. App.

1978); William s v. State, 491 S.W .2d 862 , 866 (T enn. C rim. App . 1972).




                                            8
       In the case sub judice, the defendant was under the influence of the sedatives

Demorol and Phenergan for pain and nausea at the time the officers questioned him.

Lieutenant Simmons admitted that during questioning the defendant “would fade in

and out.” Between questions, the defendant would turn his head away from the

officers and c lose h is eyes. The defendant had no recollection of this conversation

with the officers afterwards.



       As the record does not preponderate against the findings of the trial court, we

agree with the trial court’s determina tion to suppress this statemen t as an involuntary

confe ssion made by the defendant while he was under the influence of narcotics.

This issu e has n o merit.



                                III. January 13 Statement




       The trial court suppressed the statement given at the Departmen t of Safety

Building on January 13 on two bases: (1) the statement was obtained in violation

of the de fenda nt’s Sixth Amendment right to counsel and (2) the statement was not

voluntary because it was procured by promises of confidentiality by the investigating

officers. The sta te argues that the statements should not be suppressed since the

defen dant’s Sixth Amendment right to counsel had not attached because adversarial

proceedings had not been initiated against the defen dant. The State of Tennessee

also asserts that the conduct of the officers did not “undermine the accused’s free

will and c ritically impair his capac ity for self-dete rminatio n” sufficien tly to bring about

an involun tary confe ssion.



                                              A.

                                               9
       A defendant’s Sixth Amendment righ t to cou nsel d oes n ot attac h until

adversarial proceedings have be en initiated . State v. Mitch ell, 593 S.W.2d 280, 286

(Tenn.), cert. denied, 449 U.S . 845, 101 S. Ct. 128, 66 L.Ed .2d 53 (1 980). In

Tennessee, the beginning of the adversarial judicial process is marked by a formal

charge such as an arrest w arran t, indictm ent, pre sentm ent or p relimin ary he aring in

cases where an arrest warrant w as not first ob tained. State v. Mitche ll, 593 S.W.2d

at 286; State v. Butler, 795 S.W .2d 680, 685 (Tenn. Crim . App. 1990 ).



       In the present case, Lieutenant Simmons had obtained a subpoena duces

tecum on January 13 for the defendant’s medical records and blood tests. Later that

day the defendant gave his second statement to the police at the Department of

Safety building. The defendant’s medical records were released prior to the

interview.



       The defend ant asse rts that the execution of the subpoena duces tecum

constituted the initiation of the adversarial process and the attachment of the

defendant’s Sixth Amendment right to counsel. The defendant states issuance of

the subpoena by the Genera l Sessions Court Clerk and the style of the subpoena

(State of Tennessee v. David Bornfriend) indicate that the adversarial process had

been initiated against the defendant. The trial court suppressed the statement given

on January 13 based upon the determination that the adversarial process against

the defe ndant h ad beg un.



       There is no authority in Tennessee to support the proposition that the

issuance of a subpoena duces tecum constitutes the initiation of the a dversaria l

process. A subpoena duces tecum bears greater resemblance to a search warrant

                                            10
than an indictment, presentment, or arrest warrant. In fact, the adversarial process

was not initiated against the defendant until a warrant for his arrest was issued on

January 23. Therefore, the defendant’s Sixth Amendment right to counsel had not

attached at the tim e his statem ents were given. The trial court erred in suppressing

the statements given on Jan uary 13 o n the ba sis that the defend ant’s Sixth

Amendment right to counsel had been violated.



                                           B.




      The trial court also suppressed the defendant’s statement of January 13 on

the basis tha t the confe ssion wa s not volun tary due to promises of confidentiality by

the investigating officers which had the effect of o verco ming the de fenda nt’s will.

The State of Tennessee asserts that the defendant’s will was not overborne by

promises of confid entiality because those promises were limited to questions relating

to whether the defendant and Sarah Branscumb engaged in sexual activity. The

state also argues th at even if this court finds the s tatements m ade by the officers

were in reference to the entire interview, these statements were not blanket

promises of con fidentia lity but were me rely gu arante es tha t the info rmatio n wou ld

not be revealed to the press.



      During the second interview of the defendant, in response to the defendant

asking whethe r he was required to answer these questions, Officer Hayes

responded as follows:


      Hayes:        You do n’t have to a nswer th em, D avid.

                                          *****


                                           11
       Hayes:        I understand that, sir. All we are trying to do is that we are trying
                     to find out what the facts are, David. That’s all we’re doing.
                     What we are talking to you abo ut in he re is con fidentia l. It’s
                     not going to be in the news paper, on TV, nob ody is going to
                     know all this stuff. My files ar e strictly co nfiden tial. The
                     peop le who g et my files are my bosses in Nashville and the
                     District Attorney. Okay, that’s all. If you were-just “yeah, we
                     were” because at some point in time down the road, we may
                     have to ask you to b e mo re spe cific but today we are not going
                     to get into all that, okay? (em phasis add ed).


At the conclusion of the interview, the officers reiterated to the defendant that “[t]his

conversa tion, like we sa id, is confide ntial, between us.” (emphasis added). The

trial court rea soned that, “[t]he clea r mean ing of the w ord con fidential is tha t it is

confid ential, it will not be used in any public proceeding such as in this courtro om,”

when h e supp ressed the statem ent as invo luntary.



       A confession must be “free and voluntary; that is, it must not be extracted by

any sort of threats or violence, nor obtained by any direct or implied promises,

however slight, nor by the exertion of an y improper influen ce.” Bram v. United

States, 168 U.S. 532, 542-43, 18 S. C t. 183, 186 , 42 L.Ed . 568 (18 97); State v.

Kelly, 603 S.W.2d 726, 727 (Tenn. 1980). “The Fifth Amendment does not condemn

all promise-ind uced adm issions and co nfessions; it cond emns o nly those which are

compelled by promises of leniency.” Kelly, 603 S.W .2d at 729 (quoting Hunter v.

Swenson, 372 F. Supp. 287, 300-01 (D.C.Mo. 1974)). The test for voluntariness in

relation to police deception is whether based upon the totality of the circumstances,

“the cond uct of th e law e nforce men t officers was s uch to unde rmine the ac cuse d’s

free will and critically impair his capacity for self-determination so as to bring about

an involuntary confession.”        Crump, 834 S.W.2d at 271 (citing Culomb e v.

Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057-58

(1961); State v. Kelly, 603 S.W .2d at 728).

                                            12
       The promise of confidentiality occurred during the preliminary portion of

defen dant’s statem ent to the police . The trial court implicitly found that following the

promise of confidentiality, defendant made his statements in reliance upon the

officers’ promise. This is apparently a case of first impression on this precise issue,

and other jurisdictions have determined that a promise of confidentiality by a law

enforcement officer rend ers an o therwise voluntary s tateme nt involunta ry.         State

v. McDe rmott, 131 N.H . 495, 554 A.2d 13 02 (198 9); State v. Nash, 228 Neb. 69, 421

N.W.2d 41 (1988); Unite d State s v. W olf, 601 F.Su pp. 435, 441 -53 (N.D.Ill. 1984).

After hearing the evidence, the trial court determined that defendant’s statement of

January 13 was involuntary bas ed upon th e officers’ promise of confidentiality.

Absent evidence preponderating against the findings of the trial court, the findings

of fact of the trial court on a motion to suppress are binding. From our review of the

record and the law, we co ncur tha t the officer’s p romise of confide ntiality in the case

sub judice operated to deprive Defendant of his free will and was not, therefore,

voluntary u nder the totality of the circ umsta nces. This issu e is withou t merit.




                             IV. January 22 Statement




       The trial court also suppressed a statement given by the defendant on

January 22 on the basis that the confession was obtained in violation of the

defen dant’s Sixth Amendment right to cou nsel. The statement was also suppressed

as an involuntary confession induced by the earlier promises of confidentiality which

had not been revoked. The S tate of Te nness ee ass erts that the defend ant’s Sixth

Amendment right to counsel had not attached and the prior confession was not

illegally obtained.




                                            13
       The defendant returned to the Safety Building located on the University of

Tennessee at Martin campus on January 22 after the investigators called the

defendant in for a follow-up interview. This interview was not rec orded and th ere is

no transcript of this mee ting in the record. The re cord indicates that the smoke

detector in the defendant’s room was discussed.



       As to the first basis relied upon by the trial court in su ppress ing the sta temen t,

we have already ruled in this opinion that the defendant’s statement of January 13

did not violate th e defen dant’s S ixth Amen dment right to co unsel. W e have found

that the ad versa rial proc ess a gains t the de fenda nt was not initia ted until an arrest

warrant was issued o n Janu ary 23. Therefore, his Sixth Amendment right to counsel

had not attached when the January 22 statement was given.



       In suppressing the January 22 statement on the basis that the earlier promises

of confidentiality had not been revoked and that the January 2 2 statement was

therefore involuntary, the trial court relied upon our su prem e cou rt’s decision in State

v. Smith , 834 S.W.2d 915, 919 (Tenn. 1992). In Smith , the supreme court held that

the provisions of Article I, Section 9 of the Tennessee Constitution necessitate that

the extraction of an illegal, unwarned confession from a defendant raises a

rebutta ble presumption that a subsequent confession is tainted by the initial illegality.

Howeve r, if the State can establish that the tain t “is so attenu ated as to justify

admission of the subsequent confession,” then the presumption may be overcome.

Id., quoting Oregon v. Elstad, 470 U.S. 298, 335, 105 S.Ct. 1285, 1306-07, 84

L.Ed.2d 222 (19 85). As noted previously in this opinion, the record is rather sparse

concerning the Janu ary 22 sta temen t of defend ant. State v. Odom, 928 S.W.2d 18,

23 (Tenn. 1996), mandates that the findings of fact ma de by the trial court are

                                             14
binding upon the ap pellate court unles s the evidence contained in the record

preponderates against those findings.           Unfortunately for the State, the facts

contained in the record do not preponderate against the findings of the tria l court in

this case. Therefore, the trial court’s judgment that the Janu ary 22 statem ent sh ould

be suppressed must be affirmed.



                                   V. Conclusion




      This court concludes that the de fenda nt’s Sixth Amendment right to counsel

did not attach until an arrest warrant was issued against him on January 23.

Therefore, the trial court erred by u sing as a basis to su ppress the statem ents that

defen dant’s Sixth Amendment rights had been violated. However, the trial court was

correct in suppressing the January 11 statement upon finding that the statement was

not a product of a free mind and rational intellect and was therefore involuntary.

Furthermore, the trial court was correct in its conclusion that the January 13 and

January 22 statements should be suppressed because they were involuntary as a

result of the State’s promises of confidentiality. Accordingly, the judgment of the trial

court is affirmed.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



(Not participating)*
JOE B. JONES, Presiding Judge


                                           15
___________________________________
JOHN H. PEAY, Judge




*Jud ge Jo e B. J one s died May 1 , 199 8, an d did n ot pa rticipa te in this o pinion . W e ack now ledge his faithful
service to this Court, both as a member of the Court and as its Presiding Judge.




                                                          16
