                                                                                       05/28/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                               October 2, 2019 Session

              STATE OF TENNESSEE v. JOSEPH WOODRUFF

                 Appeal from the Circuit Court for Madison County
                 No. 16-180, 16-181, 16-182     Kyle Atkins, Judge
                      ___________________________________

                          No. W2018-02083-CCA-R9-CD
                      ___________________________________


We granted this interlocutory appeal to review the trial court’s suppression of an
incriminating statement the Defendant, Joseph Woodruff, made to police. The Defendant
was arrested in May 2015 related to an aggravated robbery and an attorney was appointed
to represent him. The Defendant later asked to speak with police and, following a waiver
of his Miranda rights and without his attorney present, confessed to the robbery.
Following his indictment, the Defendant sought to suppress his statement to police and,
after a hearing, the trial court granted the motion to suppress. The State filed a motion
for an interlocutory appeal challenging the suppression of the statement, which the trial
court granted, and this court granted the State’s application for a Rule 9 appeal. After
review, we reverse the trial court’s judgment.


 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and NORMA MCGEE OGLE, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellant, State of Tennessee.

Harold E. Dorsey, Alamo, Tennessee, for the appellee, Joseph Woodruff.

                                       OPINION
                                        I. Facts
       We review this case pursuant to our grant of the State’s Rule 9 application for
appeal from the trial court’s grant of a motion to suppress the Defendant’s June 3, 2015
statement to the police. In 2015, the Defendant was a suspect in multiple offenses related
to an aggravated robbery that occurred on May 11, 2015. On May 12, 2015, an arrest
warrant for the aggravated robbery was issued and the Defendant was arrested for the
May 11, 2015 aggravated robbery on May 26, 2015.

       The Defendant filed a motion to suppress an incriminating statement he made to
the police while in custody on June 3, 2015. The trial court held a hearing on the motion,
and the parties presented the following evidence: Jackson City Police Department
Lieutenant Chris Chestnut testified that in May 2015, the Defendant was a suspect in a
robbery he was investigating. After a brief pursuit, the Defendant was arrested and taken
to the police department for questioning. Investigator Chew and Investigator Stanfill
attempted to question the Defendant, but due to the Defendant’s hostility the interview
was “unproductive,” and the Defendant was taken to jail.

       Several days later, Investigator Chew requested a sample of the Defendant’s DNA.
The Defendant was transported to the police department, where Lieutenant Chestnut
asked the Defendant for consent to take a DNA sample. The Defendant signed a consent
form on June 2, 2015. Lieutenant Chestnut identified the DNA consent form and, based
upon the record, it appears that the form was introduced into evidence although it is not
included in the record on appeal. Lieutenant Chestnut testified that he did not attempt to
question the Defendant about anything related to his pending charges but that the
Defendant told Lieutenant Chestnut that he “had information on other cases” and asked
whether the information could “help him” with the pending aggravated robbery charge.
Lieutenant Chestnut testified about his exchange with the Defendant as follows:

              We talked very vaguely. He didn’t want to give too many of the
      details without knowing what he was going to get.

              I explained to him that, you know, it wasn’t a decision for me to
      make; that I could take the information and give it to the district attorney,
      but ultimately it would be their decision if and what consideration he was to
      get.

Lieutenant Chestnut stated that, during this conversation, he and the Defendant never
discussed the pending charges, nor did Lieutenant Chestnut make any type of promise
about “what kind of deal [the Defendant] would get if he had information on other
unsolved cases.” Lieutenant Chestnut described the conversation as “very brief.” He
recalled that he “took some quick notes” and told the Defendant that if he decided he
wanted to speak with the police to contact “us.” The Defendant was returned to the jail.
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       The State asked Lieutenant Chestnut if he had ever told the Defendant he
“couldn’t help [the Defendant] unless he confessed to the crimes he was currently
charged with?” Lieutenant Chestnut responded, “At no time did I ever tell him that.”
Lieutenant Chestnut said that he told the Defendant that if “he wanted people to believe
what he had to say, that he was going to have to tell the truth on everything, no matter
what the case was.”

        Lieutenant Chestnut testified that the following day, June 3, 2015, the Madison
County Jail notified him that the Defendant was requesting to speak with investigators.
Lieutenant Chestnut identified a Miranda Rights Waiver form executed by the Defendant
on June 3, 2015. Handwritten on the bottom of the page, the Defendant wrote “I Joseph
Woodruff ask[ed] to speak with investigators.” Following the Defendant’s waiver of his
right to have an attorney present, the Defendant confessed to the May 11, 2015 robbery
and told investigators the location of a ski mask used during the offense. Lieutenant
Chestnut stated that he did not know if the Defendant had an attorney at the time of the
statement, but the Defendant did not ask for an attorney or tell Lieutenant Chestnut that
he had an attorney.

        City of Jackson Police Officer John Chew1 testified about his interactions with the
Defendant in June 2015 consistently with Lieutenant Chestnut’s testimony. He stated
that the Defendant initiated the June 3, 2015 contact with the police, and that no promises
were made in exchange for the Defendant’s statement. Officer Chew did not know
whether the Defendant was represented by an attorney at the time of the June 3, 2015
interview.

       April Cornelison testified that in June 2015 she was employed by the Madison
County Public Defender’s office. She did not recall representing the Defendant, but
office records indicated that she was appointed to his case in June 2015. She did not
recall when she was appointed to the Defendant’s case, but she said that typically she was
appointed after arraignment and before the initial appearance.

       The Defendant testified that he was arrested on May 26, 2015, and arraigned on
May 28, 2015. The Defendant said that at the arraignment the Public Defender’s office
was appointed to represent him. The Defendant stated that he told Investigator Chestnut
that he was represented by an attorney. The Defendant recalled that his court appearance
following the arraignment was on June 11, 2015. The Defendant testified that, based


        1
          John Chew testified that, at the time of the suppression hearing, he was a Tennessee Bureau of
Investigation Agent.
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upon his belief that that he had an agreement with Lieutenant Chestnut, he waived his
right to a preliminary hearing and the case was bound over to the grand jury.

       After hearing the evidence, the trial court issued the following written order
granting the Defendant’s motion to suppress his statement to the police, finding that the
Defendant’s statement was a result of police initiated custodial interrogation.

      1.     The event date in this matter was May 11, 2015. The Defendant was
             detained by law enforcement May 26, 2015.

      2.     The Defendant was arraigned in Jackson City Court within seventy-
             two hours and at that arraignment was appointed an attorney.

      3.     On June 2, 2015, Officer Chestnut approached the Defendant about
             providing a DNA sample. The Defendant proceeded to tell Officer
             Chestnut that he had information about two unsolved murder cases
             and wished to give that information in exchange for a reduced
             sentence in the case at bar. Office[r] Chestnut replied that the
             Defendant would have to tell the truth in this case prior to any
             negotiations. (On June 3, 2015 the Defendant gave the statement in
             question.)

      4.     On June 3, 2015, the Defendant requested to speak with Investigator
             Chestnut.

      5.     On June 3, 2015, Investigator Chestnut told Defendant that he would
             have to tell the truth about his case prior to negotiations on the other
             cases Defendant had information about.

      6.     Defendant was represented by counsel in the present case on June 3,
             2015.

      7.     That the Defendant’s Sixth Amendment guarantee of counsel is
             offense specific and its purpose i[s] to protect the Defendant at
             critical confrontations with the State once a case is commenced on a
             particular crime.

      8.     In this present case, the Court finds based on the testimony of Inv.
             Chestnut, that Defendant contacted the police to talk about two (2)
             cases unrelated to the present case. Defendant was told, as testified
             by Investigator Chestnut several times, that he would have to be
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              truthful about his pending case first, before he could get any
              consideration for his help with the two (2) unrelated cases. This
              amounts to a police-initiated custodial questioning regarding the
              pending charge. Since the Defendant had an attorney for the
              pending charge, the police-initiated questioning was in violation of
              Defendant’s Sixth Amendment right to counsel.


It is from this judgment that the State appeals.


                                        II. Analysis


       The State appeals the trial court’s suppression of the Defendant’s statement. The
State contends that the trial court relied on an incorrect statement of law: that a defendant,
who has been appointed counsel, can never waive his right to counsel and speak with the
police. The Defendant asks this Court to affirm the trial court. He acknowledges that he
“may have initiated a conversation with [Lieutenant Chestnut] on June 2, 2015,” but he
asserts “that the interrogation about the events in this matter were clearly initiated by
[Lieutenant] Chestnut.”

        It is a firmly established tenet of constitutional law that, after the initiation of
formal charges against an accused, the Sixth Amendment right to counsel attaches,
guaranteeing the accused the right to rely on counsel as a medium between him and the
State at any critical confrontation with State officials, irrespective of coercion. See
Maine v. Moulton, 474 U.S. 159, 176 (1985); State v. Huddleston, 924 S.W.2d 666, 669
(Tenn. 1996). Once formal criminal proceedings begin, the Sixth Amendment renders
inadmissible in the prosecution’s case-in-chief statements “deliberately elicited” from a
defendant without an express waiver of the right to counsel. Michigan v. Harvey, 494
U.S. 344, 348 (1990). The accused may not be subjected to further interrogation by the
authorities until counsel has been made available to him, unless the accused himself
initiates further communication with the police. See Edwards v. Arizona, 451 U.S. 477
(1981).

       In the present case, the Defendant’s statement was made after his Sixth
Amendment rights had attached. Thus, the only questions are whether the statement was
made in response to improper police interrogation by Lieutenant Chestnut and the effect
of the Defendant’s written “waiver of rights.” This determination involves a mixed
question of law and fact, which this court reviews de novo. See generally State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999) (citing Harries v. State, 958 S.W.2d 799, 802 (Tenn.
                                            -5-
Crim. App.), perm. to appeal denied, (Tenn. 1997) (cases that involve mixed questions of
law and fact are subject to de novo review)); State v. Bridges, 963 S.W.2d 487, 490
(Tenn. 1997).

       In its written order, the trial court found that the Defendant initiated contact with
the police. We review the trial court’s findings of facts with a presumption of
correctness. See generally State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998)
(appellate court should uphold trial court’s decision on suppression motion unless record
preponderates against finding). The relevant evidence presented at the suppression
hearing consisted of the testimony of Lieutenant Chestnut and Officer Chew. Lieutenant
Chestnut testified that on June 2, 2015, the Defendant voluntarily and spontaneously
inquired about offering information on other unrelated cases to benefit him in the
aggravated robbery case. The following day, at the Defendant’s request, jail personnel
requested a meeting with Lieutenant Chestnut because the Defendant wanted to speak
with him. The record supports the conclusion that the Defendant initiated contact with
the police.

       Our next inquiry is whether the Defendant was subjected to police interrogation
while in custody. State v. Timothy Walton, 41 S.W.3d 75, 83 (Tenn. 2001).
       [T]he term “interrogation” refers not only to express questioning, but also
       to any words or actions on the part of the police (other than those normally
       attendant to arrest and custody) that the police should know are reasonably
       likely to elicit an incriminating response from the suspect.

Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnotes omitted). There is a
difference between police initiated custodial interrogation and communications,
exchanges, or conversations initiated by the accused himself. See Edwards. It is well-
established that questioning initiated by the accused is not interrogation in the Innis
sense. Edwards, at 484. At the very least, the police must have asked a question that was
“probing, accusatory, or likely to elicit an incriminating response” before a court may
conclude that there was interrogation. Id. Our supreme court has held that follow-up
questions by a police officer to a defendant’s initial volunteered statement do not
constitute an interrogation if the “questions are neutral attempts to clarify what has
already been said rather than apparent attempts to expand the scope of the statement
already made.” See Walton, 41 S.W.3d at 85-86 (citing WAYNE R. LAFAVE, ET AL.,
CRIMINAL PROCEDURE § 6.7(d), at 566-57 (2d ed.1999)).

       In this case, on June 2, 2015, the Defendant made an unsolicited comment offering
information concerning unrelated cases in exchange for leniency in the aggravated
robbery case. The police responded to his inquiry about leniency and told the Defendant
to “contact” them if he wanted to talk about the cases. Here, the only possible statement
                                           -6-
made by Lieutenant Chestnut to the Defendant that could arguably be considered
probing, accusatory, or likely to elicit an incriminating response was “if [you are] going
to be giving information on other cases and want[ ] people to believe what [you have] to
say, [then you are] going to have to tell the truth on everything, no matter what the case.”
In response, the Defendant did not make any incriminating statements about the robbery
or statements about the unrelated cases. He returned to jail and, on the following day,
June 3, 2015, the Defendant requested to speak with the police. There is no constitutional
protection from statements volunteered by the accused. Edwards, 451 U.S. at 484.
When a defendant makes a statement without being questioned or pressured by a
government agent, the statement is admissible, if the statement was freely and voluntarily
made by the defendant. Colorado v. Connelly, 479 U.S. 157, 164 (1986); Michigan v.
Tucker, 417 U.S. 433, 441 (1974).

        Moreover, the Defendant signed a waiver of his right to an attorney prior to the
June 3, 2015 statement. Our review of the trial court’s order shows that the trial court
correctly considered the Defendant’s Sixth Amendment guarantee of counsel but failed to
include in its analysis the effect of the Defendant’s waiver of his right to remain silent
and his right to have his attorney present. Although, after the invocation of the right to
counsel, the admission of a defendant’s incriminating statements deliberately elicited by
police officers in the absence of the defendant’s attorney violates Sixth Amendment
principles, a defendant can waive his Sixth Amendment right to counsel. Montejo v.
Louisiana, 556 U.S. 778 (2009); Michigan v. Harvey, 494 U.S. 344, 349 (1990); Brewer
v. Williams, 430 U.S. 387, 398 (1977). The Montejo Court observed:

               [o]ur precedents also place beyond doubt that the Sixth Amendment
       right to counsel may be waived by a defendant, so long as relinquishment
       of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487
       U.S. 285, 292, n. 4, 108 S. Ct. 2389, 101 L.Ed.2d 261 (1988); Brewer v.
       Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L.Ed.2d 424 (1977);
       Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461
       (1938). The defendant may waive the right whether or not he is already
       represented by counsel; the decision to waive need not itself be counseled.
       Michigan v. Harvey, 494 U.S. 344, 352-353, 110 S. Ct. 1176, 108 L.Ed.2d
       293 (1990). And when a defendant is read his Miranda rights (which
       include the right to have counsel present during interrogation) and agrees to
       waive those rights, that typically does the trick, even though the Miranda
       rights purportedly have their source in the Fifth Amendment[.]

Id. For Sixth Amendment purposes, “[t]he U[nited] S[tates] Supreme Court has clearly
sanctioned the admissibility of a statement given after the appointment of counsel and
even after defendant has ‘expressed his desire to deal with police only through counsel,’
                                            -7-
where defendant initiates further communication, electing ‘to face the state’s officers and
go it alone,’ and knowingly and intelligently waives his Sixth Amendment right to
counsel. State v. Cauthern, 778 S.W.2d 39, 46 (Tenn. 1989) (quoting Patterson v.
Illinois, 487 U.S. 285 (1988); see also Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983).

        In this case, the Defendant clearly understood that Lieutenant Chestnut was a
police officer assigned to his case. The Defendant had previously demonstrated that he
understood his right to remain silent because, when he first initiated a discussion about
information on the unrelated cases, he was “vague,” wanting to see first how the
information might benefit him. He did not at that time disclose the information to the
officers about the unrelated cases or provide information on his robbery charge. Instead
he returned to the jail. The following day, the Defendant initiated contact with the police
through jail personnel, indicating his decision to speak with them. Before the Defendant
made any statement on June 3, 2015, Lieutenant Chestnut informed the Defendant that he
had the right to remain silent and to have his attorney present, and the Defendant signed
the Miranda waiver and chose to make a statement about his aggravated robbery charge.
Based on our review, we conclude that the Defendant voluntarily, knowingly, and
intelligently waived both his Fifth Amendment right to remain silent and his Sixth
Amendment right to counsel.

       Given the trial court’s findings that the Defendant initiated the discussion with
Lieutenant Chestnut and the Defendant’s waiver of his right to remain silent and his right
to have an attorney present, we conclude that the Defendant’s statement was not the
product of unconstitutional custodial interrogation. Accordingly, the statement should
not have been suppressed.

        We note that the appellate record includes a motion filed September 4, 2018, in the
trial court by the Defendant, seeking to suppress the results of the DNA test. In the
motion, the Defendant asserts that his Sixth Amendment right to counsel was violated
when Lieutenant Chestnut approached the Defendant to request the Defendant’s consent
for a warrantless search for DNA evidence. A disposition of this motion is not included
in the record, and the Defendant did not include this theory in the motion to suppress the
statement which is the subject of this appeal. Thus, this opinion does not address whether
Investigator Chestnut violated the Defendant’s Sixth Amendment rights by initiating
contact with Defendant to ask the Defendant to give consent for a warrantless search for
the Defendant’s DNA, and if so, whether that violation extended to affect the
admissibility of the Defendant’s statement the following day.




                                           -8-
                                      II. Conclusion

       In accordance with the aforementioned reasoning and authorities, we reverse the
judgment of the trial court, and remand this case to the trial court for further proceedings
consistent with this opinion.




                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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