         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                       January 30, 2008 Session

          STATE OF TENNESSEE v. MITCHELL DELASHMITT
              Interlocutory Appeal from the Circuit Court for McMinn County
                            No. 03-237   Carroll L. Ross, Judge



                     No. E2007-00399-CCA-R9-CD - Filed August 7, 2008


In this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the
State challenges the trial court’s suppression of the defendant’s June 23, 2003 statement to police.
Because we agree that the defendant’s Fourth, Fifth, and Sixth Amendment rights, as well as certain
statutory rights, were violated in the procuring of the statement, we affirm the judgment of the trial
court.

                 Tenn. R. App. P. 9; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Steven Crump, Assistant District Attorney General,
for the appellant, State of Tennessee.

Katherine L. Harp (on appeal); and John E. Eldridge and Steven B. Ward (at trial), Knoxville,
Tennessee, for the appellee, Mitchell Delashmitt.

                                             OPINION

                The sequence of events giving rise to this appeal began on June 19, 2003, when the
defendant’s 14-month-old daughter, Angel Delashmitt, was discovered unresponsive in a pond near
the defendant’s home. The defendant summoned an ambulance and drove to the hospital in his own
vehicle. Resuscitation efforts were unsuccessful, and the victim was declared dead at the hospital.
The defendant was first questioned about the victim’s death at the hospital, where he admitted falling
asleep while the victim was in his care. He was arrested on a charge of criminally negligent
homicide and taken to the McMinn County Jail, where four days later he signed a statement
indicating that he had raped and shaken the victim. The trial court’s suppression of that statement
and a videotaped “follow-up” is the subject of this appeal.
                For purposes of clarification and context, we will briefly summarize the two
components that comprise the statement at issue in this opinion. The first part of what we are
collectively calling “the statement” is a recitation of facts written by Detective B.J. Johnson during
an interview following the defendant’s polygraph examination on June 23, 2003. This portion of
the statement is written entirely in Detective Johnson’s handwriting but signed by the defendant.
In it, the defendant states that after dinner on June 19, 2003, he watched a pornographic videotape
in the living room while the victim sat on the couch. He stated that as he watched the videotape, he
first fondled the victim with his penis before penetrating her anus briefly. According to the
statement, the defendant stopped when the victim cried and then shook her to get her to stop crying.
When she stopped crying, he replaced her diaper, and returned her to the couch, where she remained
while he fell asleep in a chair. At that point, the victim was alive. The defendant stated that he was
awakened by a neighbor and then realized that the victim was gone. He and the neighbor found the
victim in a nearby pond. Another neighbor performed CPR until an ambulance arrived. The
videotape recording portion of the statement features Tennessee Bureau of Investigation (TBI) Agent
Barry Brakebill going over the written statement with the defendant. The defendant makes no
affirmative statements regarding the injuries to the victim and, instead, provides yes and no answers
to the agent’s questions.

               The hearing on the defendant’s motion to suppress occurred on January 4, 2006,
December 7, 2006, and February 2, 2007, in order to accommodate the schedules of various State
and defense witnesses. Although the proof was taken out of order, we have arranged the proof in
a more traditional order.

                                            Defense Proof

                  Doctor Darinka Mileusnic-Polchan, Knox County Assistant Chief Medical Examiner,
testified that, at the defendant’s request, she had reviewed the 9-1-1 call, the original autopsy report
prepared by McMinn County Medical Examiner Doctor Ronald Toolsie, the victim’s medical
records, the TBI records from this case, autopsy photographs and slides, and the sworn statement
provided by the victim’s mother, Rebecca Dunn, taken at the time of the victim’s death. Doctor
Mileusnic-Polchan opined that Doctor Toolsie’s conclusions that the victim had been sexually
assaulted prior to her death and that she died as a result of shaken baby syndrome and blunt force
trauma to the abdomen had been reached in error.

                According to Doctor Mileusnic-Polchan, Doctor Toolsie’s conclusion that the victim
suffered from shaken baby syndrome was based, in part, upon his finding that the victim had
suffered a subdural hemorrhage prior to her death. Doctor Mileusnic-Polchan explained, however,
that “[w]hat Dr. Toolsie described as a subdural hemorrhage was an autopsy artifact found in every
single autopsy,” rather than a true subdural hemorrhage. She elaborated, “What Dr. Toolsie is
describing is a leaking of the veins in the sinus that is found in 100% [of] autopsies, adults, babies,
regardless of the age.” Doctor Mileusnic-Polchan noted that leaking of the sinus veins occurs when
the dura, a tough fibrous membrane between the brain and skull that contains numerous blood
vessels, is separated from the brain during the autopsy. Doctor Mileusnic-Polchan testified that
because “we don’t have the first and the main prerequisite, and that’s a true, subdural hemorrhage,”
she was able to rule out shaken baby syndrome as a cause of death. Doctor Mileusnic-Polchan also
                                                   -2-
noted that because Doctor Toolsie did not remove the victim’s eyes during the autopsy, there is no
“evidence of retinal hemorrhage . . . . which is [a] very important element of . . . shaken baby.” She
testified that the absence of a full body x-ray made it impossible to look for evidence of rib fractures,
a third important element of shaken baby syndrome. During cross-examination, Doctor Mileusnic-
Polchan explained that although there was evidence of cerebral edema, or swelling of the brain,
cerebral edema in this case is not an accurate indicator of shaken baby syndrome because it is also
found in drowning and because the edema was slight. In addition, marks on the victim’s neck that
Doctor Toolsie described as “pinch marks” were actually the result of the “interstitial tube being
secured with tape.”

                Doctor Mileusnic-Polchan also ruled out blunt force abdominal trauma as a
contributing cause of the victim’s death because evidence of such injuries “does not exist” in the
autopsy photographs or slides taken by Doctor Toolsie. She stated that “what’s shown actually in
the picture as so-called damage is a continuous degradation of the small bowel . . . . which is [an]
artifact from post-mortem change, from resuscitation, . . . or so-called shock bowel.” She noted that
the “purplish” color of the bowel was not evidence of blunt force trauma and was instead a textbook
symptom of shock bowel. During cross-examination on this issue, Doctor Mileusnic-Polchan noted
that there was no contusion of the abdominal wall, which ruled out a diagnosis of blunt force
abdominal trauma. She explained, “You cannot contuse the bowel without causing contusion of the
abdominal wall.”

                Doctor Mileusnic-Polchan concluded that “there is absolutely no documentation to
support sexual abuse” findings in this case. She testified that although there was some slight dilation
of the victim’s anus, the dilation was attributable to the normal, passive dilation of smooth muscle
tissue postmortem. She also noted that the victim’s medical records revealed a documented history
of chronic, severe constipation that was treated by the use of suppositories. Additionally, the sworn
statement from the victim’s mother confirmed that the victim had very hard stools and frequent
constipation. Doctor Mileusnic-Polchan stated that the photographs taken during the autopsy do not
show any evidence of sexual assault and instead show “a combination of lividity and diaper rash.”
She testified that photographs of the victim’s hymen show “no evidence of sexual abuse, recent or
remote.” During cross-examination, she stated that the photographs do not show any “fissures,
lacerations whatsoever.”

                Doctor Mileusnic-Polchan testified that although “drowning is a hard diagnosis to
make,” it was her opinion that the victim had, in fact, drowned. She explained that the presence of
“tremendous edema,” detritus, and “vegetation[-]like matter” in the victim’s lungs confirmed a
diagnosis of drowning. She stated that Doctor Toolsie’s finding that there was no water in the
victim’s lungs at the time of autopsy did not rule out a diagnosis of drowning because in a “fresh
water drowning, the water is frequently, very quickly going to transfuse from the alveolar space into
the tissue” as a result of osmosis. She noted that Doctor Toolsie’s failure to weigh the lungs made
her diagnosis more difficult, but the microscopic slides of lung tissue did confirm the edema.

                A letter from Doctor Bruce Levy, Chief Medical Examiner for the State of Tennessee,
confirmed the findings of Doctor Mileusnic-Polchan. Doctor Levy, who reviewed the case at the
request of the State, stated,
                                                -3-
Frankly, I am shocked by the opinions and conclusions of Dr. Toolsie
regarding the death of this child. In general, it shows a lack of
understanding of the definition of medical diagnoses, how these
pathologic diagnoses are made, and the ability to sort out injury from
artifact. Fortunately, Dr. Toolsie did perform a thorough autopsy and
documented the condition of the body with both gross photography
and preparation of microscopic slides. . . .

The first diagnosis is listed as “Evidence of blunt force trauma to
abdomen.” To support this diagnosis, Dr. Toolsie lists a contusion of
the ileum (a portion of the small intestines) and hemoperitoneum
(blood in the abdominal cavity). The photographic images that Dr.
Toolsie provided do[] not show a contusion of the intestines, but
instead represent[] ischemic change to this portion of the intestines.
The hemoperitoneum is not blood, but a serosanguinous fluid, which
is a type of fluid seen with this type of intestinal ischemia. The
microscopic slides provided also support a diagnosis of ischemic
change and not trauma. These findings would be consistent with the
reported history of a drowning and attempted resuscitation.

The second diagnosis is listed as “Evidence of shaken baby
syndrome.” Shaken Baby Syndrome (SBS) is defined as trauma to
the brain caused by violent shaking. The three major findings of SBS
are: [s]ubarachnoid and/or subdural hemorrhage, diffuse axonal
injury and retinal hemorrhages. None of these findings are present on
the autopsy of [the victim]. The findings Dr. Toolsie lists in his
autopsy report to support his diagnosis of SBS may be seen in victims
of SBS, but are so nonspecific and general as to be meaningless
without the three major findings listed above. There is some
evidence of slight cerebral edema (brain swelling), even though the
convolutions of the gyri remain basically rounded. This finding is
common in many different types of death, including drowning. The
“hemorrhage” adjacent to the superior sagittal sinus is artifact of the
removal of the skull and does not represent injury. The “pinch
marks” to the posterior neck could be an artifact of the medical
treatment, especially if an endotracheal tube or other apparatus was
taped down in this area. Even if this remains as an unexplained
injury, it has nothing to do with the diagnosis of SBS. Similarly[,]
pulmonary contusions or hemorrhage around the aorta and esophagus
have nothing to do with SBS. In fact, [the victim] did not have
pulmonary contusions, but had marked vascular congestion of the
lungs with alveolar hemorrhage, another common artifact in forensic
autopsies.


                                 -4-
               The third diagnosis is listed as “Evidence of recent sexual assault.”
               The listed swelling and erythema of the vulva appears most consistent
               with post-mortem settling of blood, but might represent a mild diaper
               rash. The injuries Dr. Toolsie notes to the clitoris, labia minor and
               posterior hymen are not present on the photographic images he
               provided or documented on the microscopic slides. The observed
               “dilation” of the rectum is not normal, but is typical after death. This
               reported irregularity also needs to be put into the context of an
               intestinal disorder that has been treated with suppositories, something
               it does not appear that Dr. Toolsie did as part of his investigation into
               this death.

               The contusions and abrasions of the forehead and lower extremities
               (including the ankles) are minor and consistent with accidental
               injuries in a normal toddler of this age.

               The final diagnosis of “No anatomical evidence of drowning” is
               misleading at best. There are no diagnostic pathologic or anatomic
               findings of drowning. It is a common misconception that drowning
               victims need to have water in the lungs or middle ear, and that the
               lack of such water can lead to the conclusion that the person was dead
               before being placed in the water. The reality is that drowning victims
               can have “dry” lungs and that deceased bodies placed in water can
               have “wet” lungs.

               In conclusion, based on my review of this death, it is my opinion to
               a reasonable degree of medical certainty that there is no physical
               evidence from the autopsy to support the diagnoses of blunt force
               trauma to the abdomen, shaken baby syndrome or recent sexual
               assault. It is also my opinion to a reasonable degree of medical
               certainty that the cause of death provided by Dr. Toolsie, “Cerebral
               edema and intra-abdominal hemorrhage due to blunt force trauma
               consistent with shaken baby syndrome,” is incorrect and is not
               supported by the findings of the autopsy. Finally, based on my
               review of the autopsy and the circumstances of this death it is my
               opinion to a reasonable degree of medical certainty that [the victim]
               most likely died as a result of drowning.

                Rebecca Delashmitt, the defendant’s stepmother, testified that she saw the victim
every day and confirmed the victim’s history of chronic constipation and hard stools. She stated that
she had instructed the victim’s mother to give the victim an enema of warm water and dish soap on
more than one occasion. Ms. Delashmitt stated that she “had even taken [her] finger and dug it out
of [the victim] to relieve her constipation.”


                                                 -5-
                 McMinn County attorney Randy Rogers testified that he was contacted by the
defendant’s family on Friday, June 20, 2003, and asked to visit the defendant in jail. Mr. Rogers
stated that he saw the defendant in the holding cell in the booking area of the jail, where he had been
held “for several hours at least,” and recalled that the defendant had not been told the charges against
him. Mr. Rogers testified that he spoke with the defendant for approximately 45 minutes and then
left to telephone Judge Steven Bebb about setting bond for the defendant. According to Mr. Rogers,
Judge Bebb set bond, and Mr. Rogers relayed this information to the defendant and his family. As
he was assisting the family in contacting a bondsman, the booking agent came in and told them that
the bond had been rescinded because more serious charges were likely to be added. Mr. Rogers
stated that he told the defendant that there was nothing more he could do on the bond issue and
instructed him to tell the detectives that he had a lawyer and would make no more statements outside
the presence of counsel. Mr. Rogers testified that he made it clear that he would represent the
defendant on an as-needed basis until the final charges were brought and a fee could be set. Mr.
Rogers stated that he expected to hear from the defendant over the weekend but did not. He testified
that as a general rule, individuals arrested over the weekend are arraigned on Monday morning at
9:00 a.m.

               During cross-examination, Mr. Rogers testified that he had made a commitment to
represent the defendant during any interrogation. He stated, “I left there thinking that if [the
defendant] told the detectives and investigators at the sheriff’s department . . . that I represent him
and I wanted to be present, then they would have called me like they always did.”

                Forensic Psychologist Doctor Gregory DeClue testified that at the request of the
defendant, he reviewed numerous documents and records associated with the investigation in this
case and interviewed the defendant on December 7, 2005. Doctor DeClue stated that he gave the
defendant tests to determine his amenability to coercion, his tendency for suggestibility, his ability
to understand written and oral communication, and the presence of any mental disease or defect.
Doctor DeClue also administered a test to determine the defendant’s level of effort on the other tests
in order to gauge the reliability of the tests. According to Doctor DeClue, the defendant’s full scale
IQ, as established by earlier testing, is 78, which is in the borderline range for mental retardation.
After establishing that the defendant was putting forth his best effort, that he was not “faking bad,”
and that he was not being dishonest with regard to the questions, Doctor DeClue determined that the
defendant reads at a third to sixth grade level and that his oral comprehension skills are at the
eleventh to twelfth grade level.

                Doctor DeClue testified that during testing to determine his amenability to suggestion
or coercion, the defendant “yielded to the subtle pressure from the examiner to provide an answer
that [was] consistent to the question even though” it was not factually accurate. The defendant’s
answers “showed a strong tendency” to accept factual inaccuracies imbedded in the leading
questions. According to Doctor DeClue, testing also established that the defendant was considerably
more compliant with police interrogation than an average member of the population. Doctor DeClue
stated that “the combination of [the defendant’s] low reading ability and his significantly impaired
working memory . . . makes it very difficult for him to understand information that’s presented to
him in written form, or information that is read to him.” Doctor DeClue testified that the defendant’s

                                                  -6-
difficulties in this area made it unlikely that the defendant understood any of the written waivers
presented to him during his interrogation. As a result, he opined, none of the waivers was voluntary.

                Doctor DeClue also concluded that the defendant’s “was not a voluntary statement.”
He stated that because of his low IQ and ninth grade education, the defendant lived “a marginal
existence.” Doctor DeClue opined that the conduct of the law enforcement officers in this case led
to the defendant’s involuntary statement. Specifically, the defendant was held in isolation for more
than 90 hours and not informed of the charges against him, even when he asked. In addition, the
officers misled the defendant by telling him that DNA testing would not be possible once he was
arraigned and that he would be permitted to “bond out” after his arraignment. Doctor DeClue also
noted that the police contaminated the interview process by revealing the medical evidence to the
defendant and by telling the defendant that they believed he sexually assaulted the victim before
shaking her and placing her lifeless body in the pond. Doctor DeClue also concluded that, in
addition to being involuntary, the defendant’s statement was “not reliable” as a result of the police
conduct and the defendant’s tendency toward suggestibility. Finally, Doctor DeClue observed that
the defendant never actually made a “statement” but answered yes or no to a series of questions, the
majority of which were leading. To emphasize this point, Doctor DeClue created a list of all the
words uttered by the defendant during his statement. He also noted that, as a result of the question
and answer structure of the statement, many important details of the alleged killing were missing,
like how the victim’s body came to rest in the pond.

                Former Assistant District Attorney General Amy Reedy testified that although she
did not prepare the waiver of arraignment in this case, she had suggested that one be done. Ms.
Reedy stated that she was not concerned with the timing of the defendant’s arraignment because she
did not think that “Rule 5 [of the Tennessee Rules of Criminal Procedure] would be important at all
in General Sessions Court” and that, as a result, she “would [not] have concerned [her]self with
Rules of Criminal Procedure” in the defendant’s case. Ms. Reedy testified that she had never
discussed the defendant’s case with Mr. Rogers.

               By stipulation, the defense read into the record the preliminary hearing testimony of
McMinn County Sheriff’s Department Detective B.J. Johnson. According to Detective Johnson’s
testimony, he took a statement from the defendant at the hospital, and after the victim was declared
dead, he placed the defendant under arrest because the victim drowned while in his care and because
the defendant had been drinking. Detective Johnson stated that a warrant was issued in the early
morning hours of Friday, June 20, 2003, charging the defendant with criminally negligent homicide.
Tests conducted that night showed that the defendant had a blood alcohol level of .10 and that there
were no drugs in his system. Detective Johnson testified that the defendant was not arraigned on
June 20 because the investigation was ongoing. According to Detective Johnson, he became aware
sometime over the weekend that Mr. Rogers was representing the defendant but nevertheless
approached the defendant on Monday, June 23, 2003, for the purpose of interrogating him and
getting him to submit samples for DNA testing. Detective Johnson told the defendant that Mr.
Rogers had informed the District Attorney’s Office that he was no longer representing the defendant
because the defendant could not afford to retain him. The transcript of the Monday morning
interview contains the following statement by Detective Johnson to the defendant:

                                                -7-
                [W]hen you mentioned Randy the other night - Randy Rogers -
                That’s - We couldn’t talk to you no more. But then Randy was
                talking to the D.A.s and, I guess, you know, I don’t know how much
                money he wanted or something, but there was a money problem. So
                he said he couldn’t represent you . . . .

During the Monday morning interview, Detective Johnson informed the defendant that he would be
taken to court before 2:00 p.m. for an arraignment. During this same interview, Lieutenant Fred
Schultz informed the defendant that bond would be set that afternoon.

               Testimony from McMinn County Sheriff’s Department Detective Gary Miller
established that some items were seized from the defendant’s residence before the victim’s mother
gave consent to search the residence.

                                             State’s Proof

                 TBI Agent Barry Brakebill testified that he learned of the victim’s death from Ms.
Reedy and went to the hospital “strictly . . . for the examination of the victim.” Agent Brakebill
stated that he remained at the hospital for approximately 45 minutes before traveling to the sheriff’s
department to interview the victim’s mother, who reported that she had been working at the time of
the incident. After the interview, Agent Brakebill went to the Delashmitt residence, where he
assisted in a brief search. Agent Brakebill testified that the defendant was arrested at the hospital
and charged that evening with criminally negligent homicide based on evidence that he had fallen
asleep while the victim was in his care. According to Agent Brakebill, an autopsy conducted the
following day established that the victim had been sexually assaulted and that there was no water
in her lungs, which he interpreted to mean that the victim “was already dead prior to going into the
water.” Agent Brakebill testified that he did not work over the weekend but returned to the sheriff’s
department on Monday morning and suggested that the defendant be given a polygraph examination.
According to Agent Brakebill, after he learned that a polygraph examination could not be conducted
until the late afternoon, he telephoned the general sessions court judge, who told him that the
defendant must be brought in for arraignment by 2:00 p.m. unless he executed a waiver of
arraignment. Agent Brakebill stated that he contacted the District Attorney’s office for preparation
of the waiver, which he later explained to the defendant just prior to the polygraph examination.
According to Agent Brakebill, after the polygraph examination, Detective Johnson went into the
room and took a statement from the defendant. After the written statement was obtained, Agent
Brakebill made a videotape recording of his discussing the written statement with the defendant.

                During cross-examination, Agent Brakebill admitted that the defendant was not taken
for an arraignment because the investigation was ongoing. He acknowledged that the defendant was
held in the holding cell in the booking area of the jail from the time of his arrest until the time of the
polygraph examination. Agent Brakebill conceded that he knew prior to the defendant’s giving the
inculpatory statement that he was represented by Mr. Rogers. He also conceded telling the defendant
that his arraignment would “have to” be postponed in order to do the polygraph examination.
Finally, Agent Brakebill admitted that the statement obtained by Detective Johnson was written
entirely by Detective Johnson.
                                                  -8-
                TBI Agent Malcolm Elrod, who administered the defendant’s polygraph examination,
testified that he was initially contacted by Agent Brakebill on the morning of June 23, 2003. He
testified that, prior to conducting the examination, he administered Miranda warnings to the
defendant, asked him to supply biographical information, and rehearsed the questions to be used
during the examination. According to Agent Elrod, the examination is scored by “looking at the
physical reactions that are occurring in the body when . . . a reviewed set of questions” is asked.
Agent Elrod testified that the examination took place in the training room of the McMinn County
Sheriff’s Department, which was a large room with several windows, a chalk board, chairs, and
tables. He recalled that although Agent Brakebill was present during the preliminary portion of the
examination, only he and the defendant were present during the actual examination. Agent Elrod
remembered that Agent Brakebill asked the defendant to sign a “Waiver of Arraignment” just before
the polygraph examination began.

                 Agent Elrod testified that he actually administered two tests, “one asking questions
about whether or not he had sexually abused the baby, and another test of whether or not he’d had
anything to do with causing injury or death of the baby.” According to Agent Elrod, the “test about
the sexual abuse” was inconclusive and the second test established that the defendant “was practicing
deception about causing harm or the death of the baby.” Agent Elrod stated that “after we talked for
a bit, [the defendant] stated that he had in fact had sex with the baby and had in fact killed the baby.”

               During cross-examination, Agent Elrod testified that he used the polygraph
examination as an investigative tool in this case and that, as per TBI general policy, he did not record
the examination. He stated that the examination period began at 3:35 p.m. and was finished before
5:00 p.m., with the preliminary portion taking the bulk of the time. Agent Elrod conceded that he
interrogated the defendant for two hours after the conclusion of the polygraph examination before
the defendant made any admission of wrongdoing. He admitted, however, that the defendant did not
actually admit to killing the victim and, instead, admitted only to shaking her. Agent Elrod stated
that he “knew” prior to administering the polygraph examination that the defendant had sexually
assaulted and shaken the victim before placing her in the pond. Agent Elrod acknowledged that he
told the defendant that he did not believe that the defendant was innocent and also admitted using
leading questions to obtain the defendant’s statement. Finally, Agent Elrod conceded that the
defendant’s statement contains little detail of the alleged offenses and no actual admission of killing.

               In an extremely thorough written order filed after the conclusion of the hearing, the
trial court suppressed the defendant’s statement, concluding that law enforcement officers had
violated the defendant’s constitutional and statutory protections. The trial court found that the
defendant was held in isolation in the holding cell in the booking area “from late Thursday night
until Monday evening and that the only person he had contact with other than law enforcement
officers was his one visit with Mr. Rogers.” The court expressly accredited the testimony of Mr.
Rogers that “he left the impression with the defendant and the defendant’s family that he would
represent the defendant during any preliminary matters and that he should be contacted before
anyone spoke with the defendant.” The trial court found “that the defendant had unambiguously
requested counsel prior to the time he was approached by the officers for questioning.” The court
observed that “Officer Johnson’s own statements are clear that he not only understood from the
defendant’s own statements that he had requested counsel but also knew that he could not talk to the
                                               -9-
defendant because the defendant had unambiguously requested counsel when approached by the
officer” and that the recording of Detective Johnson’s Monday morning conversation with the
defendant establishes that the defendant had requested counsel “at some point over the weekend.”
The trial court found “that the authorities were the ones who informed the defendant that Mr. Rogers
was no longer his attorney and that this was done in an attempt to talk to him further. These actions
are what subsequently resulted in the statements from the defendant.” The court also found “that
there is no credible evidence that the defendant initiated the additional questioning.” The court
concluded that “the defendant’s right to counsel was violated under both the Fifth and Sixth
Amendments of the United States Constitution.”

                 The trial court also determined that the defendant’s right to be free from unreasonable
seizure and his statutory right to a timely judicial determination of probable cause were violated by
the excessive detention prior to arraignment. The court found, “It is clear in the record that the
defendant had asked what he was being charged with and had not received an answer, despite the
fact that he had been in custody for approximately 85 hours.” Regarding the “Waiver of
Arraignment” executed by the defendant before the polygraph examination, the trial court found that
the waiver “said very little, was signed well after the defendant should have been in court, and was,
in this court’s opinion, invalid based upon the invocation of the defendant’s right to counsel, which
had already been violated.” The court further found that “[t]he officers candidly admitted that the
case against the defendant was investigated and built during the time he was being held in custody”
and that “the police action was purposeful” rather than the result of inadvertence or oversight. The
court determined that the defendant was not arraigned until “well over 100 hours after he was first
taken into custody.” The court also noted that although the arrest warrant states that it was served
on Monday, June 23, 2003, it was not signed by the judicial officer until the following day. The trial
court found, “Based upon all the evidence presented, . . . the totality of the circumstances and factors
weigh in favor of the suppression of the statement . . . .”


                                      Review and Adjudication

               In this appeal, the State contends that the trial court erred by suppressing the
defendant’s statement because “the defendant’s confession was voluntary and not the result of
unnecessary delay.” The defendant submits that the trial court properly suppressed the statement.

                 At the suppression hearing, the State has the burden of demonstrating by a
preponderance of the evidence that the defendant’s statements were voluntarily, knowingly, and
intelligently given. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). The trial court is the trier of
fact, and its factual findings are binding upon this court unless the evidence contained in the record
preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v. Daniel, 12
S.W.3d 420, 423 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); State v. Aucoin, 756
S.W.2d 705, 710 (Tenn. Crim. App. 1988). Under this standard, matters regarding the credibility
of witnesses, the weight and value to be afforded the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial court as the trier of fact. Odom, 928 S.W.2d at 23. The
party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced

                                                 -10-
at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from
the evidence. Id.; Daniel, 12 S.W.3d at 423. The State, as the appealing party, bears the burden of
establishing that the evidence preponderates against the finding of the trial court. Odom, 928 S.W.2d
at 23; State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984); State v. Harts, 7 S.W.3d 78, 84 (Tenn.
Crim. App. 1999). We review the State’s claim with these standards in mind.

               We also review the issue presented with these well-settled general principles in mind.
A confession must be free and voluntary, and it must neither be extracted by any sort of threats or
violence nor obtained by any direct or implied promises, nor by the exertion of any improper
influence or police overreaching. Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187
(1897). The issue of voluntariness requires the trial judge to focus on whether the accused’s will to
resist making a confession was overborne. Kelly, 603 S.W.2d at 728. When considering the
voluntariness of a confession, this court must examine the totality of the circumstances surrounding
the confession to determine “‘whether the behavior of . . . law enforcement officials was such as to
overbear [the defendant’s] will to resist and bring about confessions not freely self-determined.’”
Kelly, 603 S.W.2d at 728 (quoting and adopting the standard set forth in Rogers v. Richmond, 365
U.S. 534, 544, 81 S. Ct. 735, 741 (1961)).

                    I. Right to Counsel under the Fifth and Sixth Amendments

                The Fifth Amendment to the United States Constitution provides that “no person .
. .shall be compelled in any criminal case to be a witness against himself .” U. S. Const. amend. V;
see also Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964) (holding “the Fifth
Amendment’s exception from compulsory self-incrimination” applicable to the states through the
Fourteenth Amendment). Similarly, Article I, section 9 of the Tennessee Constitution provides that
“in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. “Encompassed within these constitutional provisions is the right
to counsel, which is applicable whenever a suspect requests that counsel be present during
police-initiated custodial interrogation.” State v. Saylor, 117 S.W.3d 239, 244 (Tenn. 2003).

                When there is an unequivocal request for an attorney, all interrogation must cease,
unless the suspect himself initiates further conversation with the police. Edwards v. Arizona, 451
U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981); State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.
1994). “[W]hen an accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only that he responded
to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards,
451 U.S. at 484, 101 S. Ct. at 1884-85. The determination whether the accused made a request for
an attorney, equivocal or unequivocal, is a question of fact for the trial court to determine. State v.
Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996).

                The Sixth Amendment to the United States Constitution guarantees that, “in all
criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his
defense.” U.S. Const. amend VI. A defendant has the right to counsel at all “‘critical’ stages in the
criminal justice process’ where the results might well settle the accused’s fate and reduce the trial
                                                -11-
 itself to a mere formality.’” Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 484 (1985)
 (quoting United States v. Wade, 388 U.S. 218, 224, 87 S. Ct. 1926, 1931 (1967)). The right to
 counsel embodied in the Sixth Amendment, however, “‘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,
 104 S. Ct. 2292, 2297 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 1881-
 82 (1972)). This interpretation comports with the underlying purposes of the Sixth Amendment:

                        That interpretation of the Sixth Amendment right to counsel
                is consistent not only with the literal language of the Amendment,
                which requires the existence of both a “criminal [prosecution]” and
                an “accused,” but also with the purposes which we have recognized
                that the right to counsel serves. We have recognized that the “core
                purpose” of the counsel guarantee is to assure aid at trial, “when the
                accused [is] confronted with both the intricacies of the law and the
                advocacy of the public prosecutor.”

Id. at 188-89 (quoting United States v. Ash, 413 U.S. 300, 309, 93 S. Ct. 2568, 2573 (1973)). In
Tennessee, an arrest warrant, or a preliminary hearing if no arrest warrant precedes the hearing, or an
indictment or presentment when the charge is initiated by the grand jury, marks the initiation of
criminal charges after which the Sixth Amendment right to counsel attaches. State v. Mitchell, 593
S.W.2d 280, 286 (Tenn. 1980).

                In this case, the defendant was arrested at the hospital sometime after 9:00 p.m. on
June 19, 2003, and served with an arrest warrant charging him with criminally negligent homicide
sometime in the early morning hours of June 20, 2003. The issuance of the arrest warrant on June
20, 2003, marked the initiation of formal charges in this case and also marked the attachment of the
Sixth Amendment right to counsel. In addition, the trial court found, and the record confirms, that
the defendant made a request for counsel at some point over the weekend when confronted by
Detective Johnson. Contrary to the State’s assertion that “the trial court did not point to any statement
that could reasonably be construed to constitute unequivocal or unambiguous invocations of [the
defendant’s] right to silence or his right to an attorney,” the trial court highlighted the statements
made by Detective Johnson during his recorded conversation with the defendant on Monday June 23,
2003. During that conversation, Detective Johnson made it “clear that he not only understood from
the defendant’s statements that he had requested counsel but also knew that he could not talk to the
defendant because the defendant had unambiguously requested counsel when approached by the
officer” over the weekend. We agree that Detective Johnson’s statements establish that he had
attempted to question the defendant sometime between Friday and Monday and that the defendant had
indicated, at that time, that he was represented by Mr. Rogers. This finding dovetails with the trial
court’s finding that Mr. Rogers told the defendant he would represent him during any interrogation
and instructed him to refuse any further questioning outside the presence of counsel. Accordingly,
the defendant’s right to counsel under the Fifth Amendment attached at some point prior to the
morning of June 23, 2003.

                                                  -12-
                Because the right to counsel had attached, only the defendant could have
constitutionally initiated any further interrogation. See Edwards, 451 U.S. at 484-85, 101 S. Ct. at
1884-85. That did not happen in this case. The record is clear, and the trial court so found, that it was
Detective Johnson who initiated the Monday morning interview with the defendant. At that point,
Detective Johnson asked the defendant questions and requested that he provide samples for DNA
testing. Equally clear in the record is that Detective Johnson was the person who told the defendant
that he no longer had the benefit of counsel. Detective Johnson’s interrogation of the defendant after
being made aware that the defendant was represented by Mr. Rogers and wished to have Mr. Rogers
present during any interrogation was unconstitutional. The detective’s deliberately informing the
defendant that he was without counsel for the purpose of obtaining a statement from him is
egregiously unconstitutional. Clearly, the interrogation period that began on the morning of June 23,
2003, and culminated in the defendant’s giving of an inculpatory statement violated the defendant’s
right to counsel under both the Fifth and Sixth Amendments to the United States Constitution.

                The State makes much of the fact that the defendant signed a waiver of his Miranda
rights prior to taking the polygraph examination in this case and contends that this waiver was
sufficient to waive the defendant’s right to counsel under both the Fifth and Sixth Amendments.
However, the State’s argument again overlooks the fact that it was Detective Johnson who initiated
the further questioning that preceded the Miranda waiver and polygraph examination. The trial court
specifically found that “there [was] no credible evidence that the defendant initiated the additional
questioning.” Because the Miranda waiver executed prior to the polygraph examination, the only one
executed after the defendant had invoked his right to counsel, was itself born of the violation of the
defendant’s right to counsel, it is invalid. The Supreme Court, in Michigan v. Jackson, 475 U.S. 625,
106 S. Ct. 1404 (1986), held that an admonition and waiver of Miranda rights “could not establish
a valid waiver” after there had been a request for counsel, explaining that “just as written waivers are
insufficient to justify police-initiated interrogations after the request for counsel in a Fifth
Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the
request for counsel in a Sixth Amendment analysis.” Id. at 635, 106 S. Ct. at 1410-11. The Court
observed, “Edwards is grounded in the understanding that ‘the assertion of the right to counsel [is]
a significant event,’and that ‘additional safeguards are necessary when the accused asks for counsel.’”
Id. at 636, 106 S. Ct. at 1411 (quoting Edwards, 451 U.S. at 484, 485, 101 S. Ct. at 1884, 1885).

                 In sum, the defendant’s right to counsel under both the Fifth and Sixth Amendments
was violated when officers approached him on June 23, 2003, and asked him to talk to them about
the case and to provide samples for DNA testing. Further, the Miranda waiver signed by the
defendant before the polygraph examination was the direct result of the violation of the defendant’s
right to counsel and was invalid. Finally, because the defendant’s statement was obtained in violation
of his right to counsel, it must be suppressed, regardless of whether it was voluntarily given.

                        II. Unreasonable Delay and the Fourth Amendment

               The State also contends that the trial court should not have excluded the defendant’s
statement as violative of either the Fourth Amendment of the United States Constitution or Rule 5

                                                  -13-
of the Tennessee Rules of Criminal Procedure because the statement was voluntarily given. The
defendant asserts that the trial court correctly ruled that the inordinate delay in taking the defendant
to be arraigned justifies the exclusion of the statement under both the Fourth Amendment and Rule
5. We agree with the defendant.

                                               A. Rule 5

                Rule 5 of the Tennessee Rules of Criminal Procedure provides that “[a]ny person
arrested-except upon a capias pursuant to an indictment or presentment-shall be taken without
unnecessary delay before the nearest appropriate magistrate.” Tenn. R. Crim. P. 5(a)(1). In State v.
Huddleston, 924 S.W.2d 666 (Tenn. 1996), our supreme court observed that “incarceration for any
period of time is inherently coercive,” id. at 670, and that “the intimidating environment [created by
incarceration] is no doubt exacerbated” by unnecessary delay in taking the accused before a
magistrate, id. Rule 5 is designed to protect the accused’s right to a prompt judicial determination
of probable cause. A violation of this rule, however, does not necessarily require the exclusion of the
defendant’s statement. Id. at 670. Instead, a statement will be excluded “only if an examination of
the totality of the circumstances reveals that the statement was not voluntarily given.” Id. The
circumstances to be examined include:

                “[T]he age of the accused; his lack of education or his intelligence
                level; the extent of his previous experience with the police; the
                repeated and prolonged nature of the questioning; the length of the
                detention of the accused before he gave the statement in question; the
                lack of any advice to the accused of his constitutional rights; whether
                there was an unnecessary delay in bringing him before a magistrate
                before he gave the confession; whether the accused was injured,
                intoxicated or drugged, or in ill health when he gave the statement;
                whether the accused was deprived of food, sleep or medical attention;
                whether the accused was physically abused; and whether the suspect
                was threatened with abuse.”

 Id. at 671 (quoting People v. Cipriano, 429 N.W.2d 781, 790 (Mich. 1988)). “[T]he focus on
 unnecessary delay should not be solely on the length of the delay, but rather on the circumstances
 of the delay and their effect on the accused.” Id. The length of the delay is nevertheless a significant
 factor in determining the voluntariness of a confession. Id.

                 Here, the 33-year-old defendant was arrested shortly before midnight on June 19,
 2003, and was not arraigned until June 24, 2003. After his arrest, authorities placed the defendant
 in a small holding cell inside the booking area of the jail, where he was held until being taken to the
 training room for the polygraph examination. The trial court accredited testimony that the holding
 cell was continuously lit, making it difficult for the defendant to sleep, and that there were no
 windows or other outlet by which the defendant could mark the passage of time. The defendant was
 not permitted to shower or otherwise leave the area. During the detention, the defendant’s only non-
 law enforcement visitor was Mr. Rogers. The trial court accredited the testimony of Doctor DeClue

                                                  -14-
that the defendant had an IQ of 78, which is borderline mentally retarded, and that he was especially
susceptible to suggestion. The court also accredited Doctor DeClue’s testimony that the defendant’s
poor working memory, substandard reading skills, and ninth grade education made it unlikely that
he understood the waivers of his Miranda rights and arraignment. The record supports the trial
court’s conclusion that “the case against the defendant was investigated and built during the time he
was being held in custody.” Although the defendant been arrested previously, he had never faced
charges of the magnitude of those in this case. Upon our examination of these factors, we agree with
the trial court that “the totality of the circumstances and factors weigh in favor of the suppression
of the statement under Rule 5 of the Tennessee Rules of Criminal Procedure.”

                 The State points to the various waivers executed by the defendant as indicative of the
voluntariness of his statement. As we have previously indicated, however, the waivers executed
immediately prior to the polygraph examination were obtained in violation of the defendant’s right
to counsel under both the Fifth and Sixth Amendments and, as a result, did not operate as valid
waivers. Similarly, the trial court found that the “Waiver of Arraignment” signed by the defendant
“said very little, was signed well after the defendant should have been in court, and was . . . invalid
based upon the invocation of the defendant’s right to counsel, which had already been violated.”
The record supports this conclusion. The waiver states, in its entirety, “You have the right to an
arraignment within a reasonable time period. I hereby waive my arraignment until June 24, 2003.”
The document contains no explanation of either the terms “arraignment” or “reasonable time period.”
In addition, there is no evidence that the defendant was told that he should have been taken for an
arraignment nearly two hours before he signed the document. “A waiver is ordinarily an intentional
relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458,
464, 58 S. Ct. 1019, 1023 (1938)); see also State v. Mellon, 118 S.W.3d 340, 345 (Tenn. 2003). In
this case, the State has failed to establish that the defendant intentionally relinquished a known right.
As such, it is our view that the “Waiver of Arraignment” had no effect on the voluntariness of his
statement.

               The State also contends that “the defendant’s own desire to show his innocence and
take a polygraph examination caused the delay” in this case. This assertion is simply not supported
by the record. The record is clear that it was Agent Brakebill who suggested that the defendant take
a polygraph examination and that it was Agent Brakebill who directed the creation of the “Waiver
of Arraignment” in this case. In addition, it was Agent Brakebill who told the defendant that he
could only take the polygraph examination if he waived his arraignment. Neither Agent Brakebill
nor Agent Elrod provided any explanation for why the polygraph examination could not have been
conducted after the defendant’s arraignment. The State’s brief is similarly devoid of any explanation
for why the taking of the polygraph examination necessitated the delay in arraignment.

                                     B. The Fourth Amendment

                In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975), the Supreme Court held that
“the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest,” id. at 114, 95 S. Ct. at 863, and that “this
determination must be made by a judicial officer either before or promptly after arrest,” id. at 125,
95 S. Ct. at 869. Sixteen years later, the Court concluded that “it is not enough to say that probable
                                                  -15-
cause determinations must be ‘prompt.’ This vague standard simply has not provided sufficient
guidance.” County of Riverside v. McLaughlin, 500 U.S. 44, 55-56, 111 S. Ct. 1661, 1669 (1991).
The Court ruled “that a jurisdiction that provides judicial determinations of probable cause within
48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.”
Id. at 56, 111 S. Ct. at 1670. The Court held that delays in excess of 48 hours will require more
scrutiny:

                               Where an arrested individual does not receive a
               probable cause determination within 48 hours, the calculus changes.
               In such a case, the arrested individual does not bear the burden of
               proving an unreasonable delay. Rather, the burden shifts to the
               government to demonstrate the existence of a bona fide emergency or
               other extraordinary circumstance. The fact that in a particular case it
               may take longer than 48 hours to consolidate pretrial proceedings
               does not qualify as an extraordinary circumstance. Nor, for that
               matter, do intervening weekends. . . .

Id. at 57, 111 S. Ct. at 1670.

                In this case, the delay between the defendant’s arrest on June 19, 2003, and his
arraignment on June 24, 2003, far exceeded the 48 hour period approved in Gerstein. Accordingly,
the burden is on the State to establish “a bona fide emergency or other extraordinary circumstance.”
The State correctly points out that the defendant was served with an arrest warrant charging him with
criminally negligent homicide on June 20, 2003, and that, as a general rule, “the issuance of a valid
arrest warrant satisfies the requirement that there must be a judicial determination of probable cause
for extended detention.” State v. Carter, 16 S.W.3d 762, 766 (Tenn. 2000) (citing Baker v.
McCollan, 443 U.S. 137, 143, 99 S. Ct. 2689, 2694 (1979)). The record establishes, however, that
the issuance of the criminally negligent homicide warrant was not the cause of the extended
detention in this case. Indeed, after Mr. Rogers successfully secured a bond on that warrant,
Detective Johnson telephoned the judge and asked that the bond be rescinded pending “issuance of
an additional warrant.” As the trial court found, the “officers candidly admitted that the case against
the defendant was investigated and built during the time he was being held in custody.” Both Agent
Brakebill and Detective Johnson testified that they expected to charge the defendant with a more
serious crime after the autopsy was conducted on Friday. Nevertheless, the warrant charging the
defendant with first degree murder was not served on the defendant until June 23, 2003, and not
signed by a judicial officer until June 24, 2003. The State offers no evidence of “a bona fide
emergency or other extraordinary circumstance” to justify the delay in this case. The State does
assert, however, that the defendant’s statement is nevertheless admissible because it “was
sufficiently of his free will that it should not be suppressed.”

               In Huddleston, our supreme court emphasized that “[t]he voluntariness test is not the
proper vehicle for analyzing whether a Fourth Amendment violation requires suppression of a
statement” because that test “is designed to protect the Fifth Amendment right against
self-incrimination by excluding a statement that is obtained as a result of coercion by law

                                                 -16-
enforcement officials” and “does not address the interests implicated by a Fourth Amendment
violation.” Huddleston, 924 S.W.2d at 673-74. Instead, the State must establish not only “that the
statement meet[s] the Fifth Amendment standard of voluntariness but that it [is] sufficiently an act
of free will to purge the primary taint” of the Fourth Amendment violation. Id. at 674; see also
Brown v. Illinois, 422 U.S. 590, 598, 95 S. Ct. 2254, 2259 (quoting Wong Sun v. United States, 371
U.S. 471, 486, 83 S. Ct. 407, 416 (1963)) (holding that when considering whether a statement
obtained in violation of the Fourth Amendment must be suppressed, the question is “whether [the
statement] ‘was sufficiently an act of free will to purge the primary taint of the unlawful invasion.’”).

              The Supreme Court concluded that no single factor is determinative, instead
examination of several factors is necessary to determine if the confession was an act of the accused’s
free will:

                The Miranda warnings are an important factor, to be sure, in
                determining whether the confession is obtained by exploitation of an
                illegal arrest. But they are not the only factor to be considered. The
                temporal proximity of the arrest and the confession, the presence of
                intervening circumstances, and, particularly, the purpose and
                flagrancy of the official misconduct are all relevant. The
                voluntariness of the statement is a threshold requirement. And the
                burden of showing admissibility rests, of course, on the prosecution.

Brown, 422 U.S. at 603-04, 95 S. Ct. at 2261-62 (citations omitted).

                As to the threshold question of voluntariness, we have already determined that the
defendant’s statement was not voluntarily given. Because the State has failed to meet the threshold
requirement, it has failed to establish that the defendant’s confession is admissible despite the Fourth
Amendment violation.

                Considering nevertheless the other factors, the record establishes that although the
defendant was given Miranda warnings on more than one occasion, only the admonition and waiver
signed just prior to the polygraph examination preceded an inculpatory statement by the defendant.
Moreover, we have determined that the waiver was invalid based upon the violation of the
defendant’s Fifth and Sixth Amendment right to counsel. The record supports the trial court’s
conclusion that this factor weighs in favor of the defendant.

                Regarding the temporal proximity of the arrest and the statement, the record
establishes that the defendant signed the statement written by Detective Johnson approximately 90
hours after he had been arrested. The defendant was not arraigned until the following morning,
nearly 100 hours after his arrest. We agree with the trial court that this factor weighs in favor of the
defendant.

              The State insists that the defendant’s visit with Mr. Rogers constitutes an intervening
circumstance sufficient to purge the taint of the delay. We disagree. Nothing in the record suggests

                                                  -17-
that the defendant’s brief visit with Mr. Rogers in any way purged the taint of the delay. To the
contrary, the defendant’s visit from Mr. Rogers exacerbated the taint of the delay because the
officers used the information that the defendant had visited with Mr. Rogers against him. Detective
Johnson told the defendant that Mr. Rogers had declined to represent him because the defendant was
unable to pay a fee. The detective then preyed on the defendant’s belief that he was without the
benefit of counsel in order to obtain an inculpatory statement from him. The State also suggests that
the polygraph examination was an intervening circumstance because “the defendant voluntarily
chose to postpone his arraignment so that he could” take the test. The record establishes, however,
that Agent Brakebill suggested that the defendant take the polygraph examination and told the
defendant that he would be required to waive his arraignment in order to do so. In addition, we have
already determined that the defendant’s waiver of his arraignment was invalid.

               The State also contends that “[t]here is no evidence that the defendant in this case was
held for the purpose of gathering additional evidence.” The record belies this statement. Agent
Brakebill candidly admitted that the defendant was not taken for an arraignment because the
investigation was ongoing and that he expected that additional charges would be added after the
victim’s autopsy. Similarly, Detective Johnson admitted that he asked Judge Bebb to rescind the
defendant’s bond to ensure that he was held pending charges he believed would be added after the
victim’s autopsy. We agree with the trial court “that the police action was purposeful.”
Accordingly, this factor weighs in favor of the defendant.

                Because each of the factors weighs in favor of the defendant, the State has failed to
establish that the defendant’s statement was sufficiently attenuated from the Fourth Amendment
violation to support its admissibility. In consequence, the trial court properly suppressed the
statement.

                                          CONCLUSION

               The State has failed to establish that the evidence preponderates against the findings
of fact made by the trial court. To the contrary, the record amply supports each of the factual
findings. Further, the record mandates the suppression of the defendant’s statement on a number of
grounds. First, the record clearly establishes that the statement was obtained in violation of the
defendant’s right to counsel under both the Fifth and Sixth Amendments. In addition, the statement
was obtained in violation of the defendant’s right to a prompt judicial determination of probable
cause under both Rule 5 of the Tennessee Rules of Criminal Procedure and the Fourth Amendment.
The State has failed to establish that the statement is admissible despite these violations.
Accordingly, the judgment of the trial court suppressing the defendant’s statement is affirmed.


                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                 -18-
