         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     January 2000 Session

                STATE OF TENNESSEE v. AARON McFARLAND

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 97-08162, Arthur T. Bennett, Judge



                  No. W1999-01410-CCA-R3-CD - Decided - August 4, 2000



DAVID G. HAYES, J., concurring.

        The majority finds the defendant's suppression issue non meritorious under Fifth Amendment
analysis. While I do not disagree with the analysis, I believe the factual scenario presented requires
review under Sixth Amendment analysis. At both the suppression hearing and at trial, the
interviewing officer testified that the defendant "had been arrested the night before by uniformed
officers and was in juvenile court." The defendant was interviewed the following morning around
11:00 a.m., after the officer "checked him out of juvenile court" and transported him to the police
department's homicide division. I can only assume from these facts that, at the time of the police
questioning, the defendant had been charged with the homicide of Terrell Deon Bullard. If this
assumption is correct, then adversarial proceedings had been initiated and the defendant's Sixth
Amendment, rather than his Fifth Amendment right to counsel, had attached.

        Thus, the relevant question is not whether the defendant's statement was voluntarily obtained
under a totality of the circumstances review which would permit an invoking of his right to counsel
and subsequent waiver but, rather, following arrest, whether he waived his right to counsel. See
Michigan v. Jackson, 475 U.S. 625, 639, 106 S.Ct. 1404, 1407 (1986); Brewer v. Williams, 430 U.S.
387, 97 S.Ct. 1232 (1977); see also State v. Mitchell, 593 S.W.2d 280, 283 (Tenn.), cert. denied, 449
U.S. 845, 101 S.Ct. 128 (1980); State v. Butler, 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990); State
v. Webb, No. 03C01-9112-CR-00414 (Tenn. Crim. App. at Knoxville, Mar. 29, 1996). In other
words, once the Sixth Amendment right to counsel is invoked by the accused, the "bright-line rule"
follows: a subsequent waiver of that right --even if voluntary, knowing, and intelligent under
traditional standards - is presumed invalid if secured pursuant to police-initiated conversation."
Michigan v. Harvey, 494 U.S. at 345, 110 S.Ct. at 1177 (interpreting Michigan v. Jackson, 475 U.S.
at 625, 106 S.Ct. at 1404) (emphasis added).


       I agree with the majority that the record supports the conclusion that the defendant never
invoked his right to counsel. Moreover, I am not aware of any law that would permit a third party
to invoke the right to counsel on behalf of a sixteen year old juvenile. This right, which is personal
to the accused, may only be invoked by the accused or by retained counsel. Thus, under either Fifth
or Sixth Amendment analysis, the defendant's confession was properly admitted into evidence.1 For
these reasons, I concur.




                                                        ____________________________________________
                                                        DAVID G. HAYES, JUDGE




         1
           Although any review of whether an accused ha s waived his Sixth A mend ment rig ht to coun sel may n ecessarily
involve consider ation of h is Fifth Am endm ent right to counsel via Miranda, the two are distinguished in purpose. The
right to counsel provided by Miranda under the Fifth Amendment protects against coercion relative to self-incrimination,
while the right to counsel u nder the Sixth A mendm ent guarantees, after formal charges have be en brou ght, the righ t to
legal assistance at any critical confro ntation w ith State officia ls, irrespective of coercio n. See State v. Walker, No.
03C01-9110 -CR-00346 (Ten n. Crim. App. at Knoxv ille, Feb. 22, 1993).

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