                                                                                         04/24/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     January 24, 2019 Session

                   STATE OF TENNESSEE v. RAFFAEL FANSANO

                      Appeal from the Circuit Court for Sullivan County
                          No. S65,438    William K. Rogers, Judge


                                  No. E2018-00664-CCA-R9-CD


The Defendant, Raffael Fansano, was indicted for aggravated rape. The Defendant filed
a motion to suppress his confession, arguing, among other things, that he did not
knowingly and voluntarily waive his Miranda1 rights due to his intellectual disability.
The trial court granted the Defendant’s motion to suppress, and the State sought and was
granted an interlocutory appeal of the trial court’s decision. On appeal, the State
contends that the Defendant was not in custody when he made the statement at the police
department and, alternatively, that the trial court erred when it determined that the
Defendant did not knowingly and voluntarily waive his Miranda rights. Following our
review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Julie R. Canter,
Assistant District Attorney, for the appellant, State of Tennessee.

Andrew J. Gibbons (on appeal and at hearing), District Public Defender; and Lesley A.
Tiller (on appeal), Assistant District Public Defender, for the appellee, Raffael Fansano.

                                          OPINION
                                    FACTUAL BACKGROUND

      The Sullivan County Grand Jury indicted the Defendant for one count of
aggravated rape, see Tennessee Code Annotated section 39-13-502, which was alleged to

1
    See Miranda v. Arizona, 384 U.S. 436 (1966)
have occurred on August 6, 2015, in a wooded area of Domtar Park in Kingsport,
Tennessee. The victim reported being raped with a stick. Upon investigation, officers
noticed that the Defendant was wearing clothing covered in mud. Following initial
questioning at the scene, Kingsport Police Department (KPD) Sergeant Randy Murray
asked the Defendant to accompany him to the KPD for further questioning. Because the
Defendant had ridden a bicycle to the park, Sergeant Murray transported the Defendant to
the police station in an unmarked police car. At the police station, Sergeant Murray
advised the Defendant of his Miranda rights, and the Defendant executed a written waiver
of his rights. During the interview, the Defendant confessed to sexually assaulting the
victim with a stick.

        After indictment, the trial court ordered the Defendant to undergo a competency
evaluation. On November 20, 2015, evaluators with Frontier Health Assessment and
Forensic Services determined that the Defendant suffered from an “Intellectual Disability
(Mental Retardation).” The evaluators concluded that the Defendant was not competent
to stand trial because he lacked the “sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding and a rational as well as factual
understanding of the proceedings against him.” Nonetheless, the evaluators believed that
the Defendant could “possibly become competent to stand trial with further training.” In
addition, the evaluators found that, despite the Defendant’s intellectual disability, he “was
still able to appreciate the nature or wrongfulness of” his actions and did not suffer from
diminished capacity at the time of the offense.

        The Defendant underwent competency training at Greene Valley Developmental
Center. During the Defendant’s initial assessment on February 18, 2016, it was noted
that the Defendant was “a legally competent adult” and did not have a “conservator
acting on his behalf.” The Defendant was administered the standardized test,
“Competence Assessment for Standing Trial for Defendant with Mental Retardation
(CAST-MR),” and his total score on the test was 82%. Moreover, the evaluators noted
that the Defendant “scored [four] points above the mean score . . . for individuals with
intellectual disabilities who were competent to stand trial.” The “Competency
Assessment Instrument (CAI)” was also administered to the Defendant on February 18,
2016. From this assessment, the evaluators surmised the following:

       [The Defendant] demonstrated a rational understanding of the charges
       against him. He noted that the charges are serious and others might regard
       him with fear if convicted of the charges. [The Defendant] knows the
       possible penalty of being found guilty. He was able to articulate a clear and
       plausible plan for his defense. He knew the possible pleas. He understood
       that a plea bargain involves pleading guilty to a lesser crime to reduce the


                                             -2-
       penalty and stated that if a person is guilty, it could be a good idea. He
       knew the roles of the courtroom personnel.

              [The Defendant] did not know the difference between a felony and a
       misdemeanor upon initial assessment. He did not have understanding of his
       rights. These results indicated that training could benefit [the Defendant.]

      Competency training was conducted on February 18, 2016, and February 25,
2016. Regarding the Defendant’s training sessions, the evaluators detailed as follows:

               [The Defendant] does not have a driver’s license and was brought to
       training sessions by his [s]tep-father . . . . [The Defendant] conducted
       himself in an appropriate and respectful manner during each session. He
       was prompt to appointments and effort was considered good. [The
       Defendant’s] affect was somewhat flat, but he was articulate in responses
       after thoughtful consideration. There are no concerns regarding appropriate
       behavior during courtroom appearances. [The Defendant] reported that in
       stressful situations, he tends to shut down or become quiet. During his
       account of the day he was arrested, [the Defendant] disclosed that he felt
       scared and intimidated when questioned. He stated that he did not know he
       could request an attorney and felt that he had to talk. He wanted to go
       home and was told that he could go after he admitted to his crime. [The
       Defendant] stated that he does not like conflict and will comply when it is
       demanded. The [e]xaminers spent a great deal of time reviewing his legal
       rights. [The Defendant] stated that he was not read his rights and that he
       was told he was not under arrest but that he had to go to the police station
       in the back of the cruiser to answer questions. He was not permitted to
       speak with his girlfriend, Kayla. Upon reaching the station, [the
       Defendant] eventually confessed to the crime in order to be let go.
       However, at that time, he was placed under arrest and sent to jail.

       On March 3, 2016, the Defendant was re-administered the CAST-MR and the
CAI. According to the evaluators, the Defendant’s “knowledge of Basic Legal Concepts
and Understanding Case Events as measured by the CAST-MR improved after training.”
The Defendant’s total score on the CAST-MR was now 88%. After completing the
follow-up assessment, the evaluators remarked, “[The Defendant] knows to request to
speak with an attorney before making admissions or participating in questioning by
authorities. He knows his attorney is on his side and that the [p]rosecutor is against him.”
“Based on [the Defendant’s] interactions, responses during training and during follow-up
assessment,” the evaluators recommended that the Defendant be found competent to
stand trial.

                                            -3-
        After being deemed competent to stand trial, the Defendant filed a motion to
suppress “[c]ertain statements [that] were taken from [him] on August 6, 2015[,]” by
Sergeant Murray. Specifically, the Defendant alleged the following: 1. “Under the
totality of the circumstances test, the Defendant did not waive his rights under Miranda v.
Arizona.”; 2. “The statements are unlawful because they are involuntary.”; 3. “The
statements were obtained after the commencement of formal proceedings and the
statements were taken in violation of the [D]efendant’s right to counsel.”; 4. “The
statements are unlawful and therefore the evidence obtained as a result of said statements
is also unlawful.”; and 5. “The officer failed to fully advise the [D]efendant of his rights
under Miranda v. Arizona.” The State filed a response on the same day as the evidentiary
hearing, arguing that the Defendant, considering the totality of the circumstances, had
made a knowing and voluntary waiver of his Miranda rights. In support of its argument,
the State noted the following:

          [A]t the time of police questioning, the [D]efendant displayed no signs of
          mental illness. The [D]efendant was coherent, not suffering from
          delusions, and agreed to speak with [Sergeant] Murray at the [KPD]. The
          setting in which the [D]efendant wrote his statement was not coercive or
          overreaching. Additionally, the [D]efendant completed High School in
          Gate City, Virginia and obtained a special education diploma.

        On November 27, 2017, the trial court conducted an evidentiary hearing. At the
outset of the hearing, defense counsel averred that the “burden [was] on the defense in
this situation.” After providing some background about the Defendant’s mental health
and the proceedings in this case, defense counsel argued that, based upon the Greene
Valley report from the evaluators, the Defendant did not understand his Miranda rights or
“the consequence of waiving those rights.” The prosecutor made no opening argument
“since the burden [was] on the Defendant.”

        The trial court noted that, previously, the Defendant “ha[d] been found to have
intellectual disability. His Wechster intelligence scores [were] in the sealed record from
his school.2 The [D]efendant’s psychological intelligence scores [were] 53 on the WISC
III in 1995 and 48 in 1998.”

       Shannon Seaton, a senior psychological examiner for the Department of
Intellectual and Developmental Disabilities, testified that the two evaluators who
performed the Defendant’s evaluation and competency training, Leslie Jones and
Deborah Morrell, were no long employed by the agency. Their March 9, 2016 report was
entered into evidence through Ms. Seaton.


2
    This sealed record is not included in the appellate record.
                                                       -4-
       Ms. Seaton testified that the Defendant was assessed with standardized testing
instruments to evaluate individuals with intellectual disabilities. She stated that the
evaluation did not set forth or explain the Defendant’s Miranda rights and that it was “not
typically part of [the] evaluation” to explain those. She testified that the testing was
given to assess “[t]heir ability to assist during a trial; the ability to know what the
consequences are for their actions.” Ms. Seaton further explained that subjects are asked
questions such as: “Where were you? Who was there? Can you replay what they say
you are accused of doing?” Ms. Seaton conceded that the Defendant’s evaluation was
approximately six months after he signed his statement to police and that she had no way
of knowing whether he understood his rights when he signed the form. Ms. Seaton stated
that investigating officers were not contacted to determine the Defendant’s demeanor
when the statement was taken.

       KPD Sergeant Randy Murray testified that he received a call that a rape had
occurred in Domtar Park on August 6, 2015. Upon arrival, Sergeant Murray spoke with
several officers already on the scene and “learned that there were several different
witnesses being interviewed.” He recalled that he went to the “Netherland Inn side near
the swinging bridge” to speak to the Defendant and that a couple of other officers had
already briefly spoken to the Defendant. Sergeant Murray observed that the Defendant
had “a lot of dirt and debris” on his clothing, including “watery mud” on his “right knee
area.” Sergeant Murray said that the Defendant’s clothing was “a red flag” because the
assault took place in a “wooded area” of the park that was “muddy and damp.” When
Sergeant Murray asked the Defendant “what he was doing at the park,” the Defendant
told Sergeant Murray that he had “just crossed over the swinging bridge and pointed
down to the left, that he’d gone that direction[,]” specifically “ma[king] mention that he
didn’t go to the right.” Sergeant Murray believed it was suspicious that the Defendant
noted that he did not go to the right, which was the direction of the alleged assault.
Sergeant Murray described that the Defendant was calm and coherent during their
encounter at the park.

       Sergeant Murray took the initial written statement at the park from the Defendant
at approximately 5:00 p.m. while they “talked at the back of [Sergeant Murray’s] car[.]”
According to Sergeant Murray, other officers were present, but “they stood off to the side
at some distance.” Sergeant Murray also obtained a DNA sample from the Defendant
and took possession of his clothing at the park. According to Sergeant Murray, the
Defendant consented to giving a DNA sample, and a buccal swab was taken from inside
the Defendant’s cheek. Sergeant Murray testified that the Defendant was not under arrest
at the park and was free to leave; however, “his clothes had to stay” because Sergeant
Murray was concerned about potential DNA evidence that might be on the Defendant’s
clothes. The Defendant was allowed to call his girlfriend to bring a change of clothes for


                                            -5-
him to the park. However, had the Defendant not cooperated, Sergeant Murray stated
that he “doubt[ed]” that he would have let the Defendant leave the park with his clothes.

        After the Defendant changed clothes, Sergeant Murray “wanted to continue the
investigation,” so he asked the Defendant if he would accompany him to the KPD. The
Defendant agreed. Because the Defendant had ridden to the park on a bicycle, Sergeant
Murray drove the Defendant to the KPD in his unmarked police car. Sergeant Murray
testified that he was “pretty sure” that the Defendant rode in the front seat of his vehicle,
although the Defendant told the evaluators that he rode in the back seat.

       Sergeant Murray recalled that, once at the police department, he read and
explained the Miranda rights to the Defendant, which the Defendant appeared to
understand, and that the Defendant signed the waiver form at 7:40 p.m. However,
Sergeant Murray claimed that the Defendant was not under arrest and was free to leave,
despite his completing the Miranda form. The statement reflected that the Defendant was
twenty-six years old at the time. The Defendant signed the admonition “Raffael Fansno.”
According to Sergeant Murray, after the Defendant was asked if he understood his rights,
the Defendant answered affirmatively and did not ask any more questions. Sergeant
Murray conceded that, when a suspect states that they understand their rights and sign the
waiver, he does not conduct any further inquiry about their level of understanding.
Sergeant Murray affirmed that it was this “second statement [at the KPD] that [was] the
subject of the suppression motion.”

        Sergeant Murray interviewed the Defendant in an interview room set up in the
back of the Criminal Investigations Division. According to Sergeant Murray, the
interview room had windows that could be used for others to observe the interview but
had no windows to the outside of the building. Sergeant Murray was “not sure” if there
was an officer stationed outside of the interview room door. Sergeant Murray described
that it “was a very laid-back interview” with just him and the Defendant in the interview
room for “the most part.” The Defendant was neither handcuffed nor threatened,
according to Sergeant Murray. Also, the door was located between Sergeant Murray and
the Defendant. Sergeant Murray averred that the Defendant “was very much engaged in
the dialogue” and that he understood the seriousness of the allegations.

        Sergeant Murray recalled that he focused on the seriousness of the sexual assault
and “reiterate[ed] over and over the fact that [the Defendant] was at the park,” that he had
dirt on his clothing,” and that he was “very specific about not going to another . . . part of
the park where” the assault took place. Sergeant Murray said that he continued to
reiterate to the Defendant that the victim “was sexually assaulted and she was hurt, and
that [they] need[ed] to get the truth.” After reviewing those details “a couple of times,”
the Defendant “started to cry and bec[a]me very emotional.” According to Sergeant

                                             -6-
Murray, “[i]t wasn’t until the confession came out that [the Defendant] start[ed] showing
signs of being emotional and apologetic.”

      Sergeant Murray confirmed that this second statement was in his handwriting, not
the Defendant’s. Sergeant Murray read into the record the statement he took from the
Defendant at the KPD on August 6, 2015:

             I want to say I am sorry, that I am sorry to her. I saw the girl first
      before the trip to the sand bar. She was across the bridge over from the
      Netherland Inn side and I had crossed over with my bike. I pushed my bike
      up next to her and we talked. We walked away from the sand bar and went
      passed the swinging bridge. I asked her how her day went. She said,
      “having a good” and I told her I was having an okay day. I did not tell her
      about my break up. We were together just a short time. I think I blacked
      out it was not me. I do not believe in hurting girls. I hit her, I think with
      my forearm she went down to the ground. She had on a black shirt, she
      was white, 20’s to 30’s not sure, she had on pants not sure blue jeans
      maybe, not sure her hair or shoes. I was upset feeling like a failure, I was
      upset over my relationship.

             I pulled on her pants, they came down and she was now face down.
      I saw the stick and picked it up. It was a part of a tree branch. It was a coin
      size around and less than a foot long. I put it inside her vagina. I pushed it
      in, pulled it out, and did this twice. I do not remember if she said or did
      anything to try to stop me. I knew I should not be doing what I did. I
      stopped when I started coming to myself. I am not sure if I touched her
      with my hands or fingers. When I stopped I had the stick in my hand. I
      think I dropped the stick. She was crying and I asked her if she was okay.
      Not sure if she said anything or not. I walked back pushing my bike across
      the bridge.

Moreover, Sergeant Murray testified that he read the Defendant’s statement to him
“several times.” According to Sergeant Murray, the Defendant corrected Sergeant
Murray when he wrote “sticks” instead of “stick,” and the Defendant initialed the change.

       Thereafter, Sergeant Murray learned that the victim did not speak with her attacker
immediately prior to the rape. After relaying that information to the Defendant, the
Defendant indicated he wanted to correct the details of his statement, relaying the
following specifics as to how he encountered the victim:

            I want to change how I first spoke to her. I spoke to her on the
      Netherland Inn side near the swinging bridge. The conversation was what I
                                            -7-
      told[,] but I left. Later, maybe an hour I saw her. She was facing the river.
      I snuck up behind her, put my arms around her and that’s when I hit her
      with my arm to get her on the ground. I want to say I am sorry for what I
      did. This is a true statement to the best of my knowledge.

       Sergeant Murray interviewed the Defendant for approximately three hours.
According to Sergeant Murray, the Defendant never indicated that he did not understand
what Sergeant Murray was saying while Sergeant Murray was reading the statement
aloud to the Defendant. Moreover, the Defendant did not appear delusional in Sergeant
Murray’s opinion. According to Sergeant Murray, the Defendant never displayed “any
observable signs that he was incompetent [or] not aware of what was” taking place.
Sergeant Murray said that the Defendant neither asked for a lawyer nor indicated that he
wished questioning to cease.

       Sergeant Murray agreed that this second written statement from the Defendant was
“different” from what the Defendant had first told him at the park: “Well, on [the] scene
he had [given] an initial statement about what he was down there to do. And then in [the
interview] room he tells a different story about the rape.” Sergeant Murray related that
the Defendant was able to provide “a few” details identifying the victim, but the
Defendant was “confused on whether or not” she was wearing “pants or blue jeans or
shorts or whatnot.” Sergeant Murray acknowledged that the Defendant’s signature was
“unusual,” appearing “dyslexic.” He further confirmed that the Defendant misspelled his
own name on the admonition form. In contrast to his earlier testimony, Sergeant Murray
opined that the Defendant was becoming emotional at the time he signed the Miranda
waiver.

        Furthermore, the statement was not recorded by audio or video, which was
standard practice for the KPD according to Sergeant Murray. Sergeant Murray testified
that, although he was aware that “other agencies in other counties” record interviews,
interviews were not recorded in Sullivan County “at the request of the district attorney’s
office” and that he had “never heard anybody come up with a reason why [they] should
change that policy.”

      The Defendant was placed under arrest after he gave his second statement.
Sergeant Murray confirmed that he also collected, with the Defendant’s consent, swabs of
the Defendant’s hands and fingers for possible DNA evidence.

       Detective Daniel Horne with KPD testified that he walked into the interview room
for a “fairly short” period of time when Sergeant Murray was interrogating the
Defendant. According to Detective Horne, “the Defendant was visibly upset, crying, and
was saying, ‘I’m sorry.’ Very apologetic.” The Defendant repeatedly said that he was
sorry for hurting the alleged victim and appeared to be remorseful for what he had done.
                                           -8-
Detective Horne said that the Defendant seemed to know what was going on and where
he was, and the Defendant’s speech was coherent. Detective Horne did not see Sergeant
Murray ever threaten the Defendant in any way. In addition, Detective Horne never
heard the Defendant indicate he wanted to leave the interview room, request to stop
talking, or ask for an attorney.

       Detective Horne testified that he was “[b]riefly” there when Sergeant Murray
questioned the Defendant at the park. Although Detective Horne recalled seeing
Sergeant Murray place the Defendant in his police car, Detective Horne did not recall
whether it was in the front or back seat.

        That concluded the proof, and the parties argued the issues. Defense counsel
argued that the Defendant’s Miranda waiver was not knowing and voluntary, noting the
Defendant’s “mental deficiencies” and citing to findings from the evaluators’ report.
Defense counsel also remarked that “[t]here was no testimony given . . . that the
consequences of waiving his rights were ever explained to [the Defendant].” In
conclusion, defense counsel asserted that, “because of [the Defendant’s] intellectual
disability,” he could neither “understand nor appreciate the significance of waiving his
rights under Miranda,” and defense counsel requested that the statement be suppressed.

        The prosecutor replied by noting that Ms. Seaton testified that evaluators “don’t
talk to the police officers to ask what the defendant’s behavior was like on that specific
date, and [that] they don’t have anything in their standardized test that is similar or even
in line with Miranda.” The prosecutor remarked that Sergeant Murray advised the
Defendant of his Miranda rights and the consequences of waiving those rights, which “is
it can be used against you in court.” The prosecutor observed that Sergeant Murray
“indicated, based on the observable signs that he saw, he thought the Defendant
understood it.” Furthermore, the prosecutor mentioned that Sergeant Murray testified
that “[h]e read the statement several times to the Defendant” and that “[t]he Defendant
was coherent enough” to make a correction to the statement. The prosecutor averred that
there were no “objective signs” from the Defendant during the police interview “that he
was not cooperating[,]” surmising that, under the “totality of the circumstances,” the
Defendant’s Miranda waiver was knowingly and voluntarily made.

        After the arguments of the parties, the trial court granted the Defendant’s motion
to suppress, concluding that the Defendant did not knowingly and voluntarily waive his
Miranda rights. The State filed a timely motion seeking an interlocutory appeal, which
the trial court granted based upon the need to prevent irreparable injury and the need to
develop a uniform body of law. See Tenn. R. App. P. 9(a). In its application to this
court, the State asserted that the victim did not see her attacker and that there was little
evidence to establish the identity of her attacker without the Defendant’s statement. The
State also argued that the trial court did not make any factual findings concerning
                                            -9-
whether the Defendant was subjected to a custodial interrogation and that the evidence
presented at the evidentiary hearing suggested that the Defendant accompanied officers to
the police station voluntarily. We concluded that the need to prevent irreparable harm to
the State warranted granting interlocutory review. The case is now before us for review.

                                       ANALYSIS

        On appeal, the State contends that the Defendant was not subjected to a custodial
interrogation and that Miranda did not apply. Irrespective, the States submits that the
trial court erred when it held that that Defendant did not knowingly and voluntarily waive
his Miranda rights.

       The Defendant responds that the State has waived the issue of whether the
Defendant was in custody by failing to argue it in the trial court. Regardless, the
Defendant maintains that the trial court made an implicit finding that the Defendant was
in custody. Continuing, the Defendant avers that the trial court did not err when it ruled
that the Defendant, who suffers from an intellectual disability, did not knowingly and
voluntarily waive his Miranda rights. In the alternative, the Defendant alleges that, even
if he was not in custody for purposes of Miranda, his statement was not voluntarily made.

       Replying to the Defendant, the State argues that waiver does not apply to its
argument that the Defendant was not in custody. According to the State, “[w]hether the
[D]efendant was subjected to custodial interrogation was a threshold issue that had to be
proven in order to show he did not voluntarily waive his Miranda rights.” The State
further submits that “[t]he [D]efendant’s mental deficiencies are not relevant to the
question of whether he was in custody, and the totality of the circumstances show he was
not in custody.” The States again submits that the trial court erred when it held that that
Defendant did not knowingly and voluntarily waive his Miranda rights. Finally, the State
maintains that the Defendant’s confession was voluntary.

                                  I. Standard of Review

        On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as
all reasonable and legitimate inferences that may be drawn from the evidence.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and
value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial
court” as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing
State v. Scarborough, 201 S.W.3d 607, 615 (Tenn. 2006)). When the trial court “makes
findings of fact in the course of ruling upon a motion to suppress, those findings are
binding on appeal unless the evidence in the record preponderates against them.” Id.
                                           -10-
(citing State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007)). Conversely, a trial court’s
conclusions of law along with its application of the law to the facts are reviewed de novo
without any presumption of correctness. Id. (citing State v. Hayes, 188 S.W.3d 505, 510
(Tenn. 2006)).

                           II. Fifth Amendment Jurisprudence

        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.” See also
Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth Amendment’s protection
against compulsory self-incrimination is applicable to the states through the Fourteenth
Amendment). 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.” “The significant difference between these two provisions is that the test of
voluntariness for confessions under [a]rticle I, [section] 9 is broader and more protective
of individual rights than the test of voluntariness under the Fifth Amendment.” State v.
Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

        Generally, one must affirmatively invoke these constitutional protections. An
exception arises, however, when a government agent conducts a custodial interrogation.
Statements made during the course of a custodial police interrogation are inadmissible at
trial unless the State establishes that a defendant was advised of his Fifth Amendment
rights and that a defendant then waived those rights. Miranda v. Arizona, 384 U.S. 436,
471-75 (1966); see also Dickerson v. United States, 530 U.S. 428, 444 (2000); Stansbury
v. California, 511 U.S. 318, 322 (1994). The Court defined the phrase “custodial
interrogation” as “questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way.” Miranda, 384 U.S. at 444.

        A person is “in custody” within the meaning of Miranda if there has been “a
formal arrest or restraint on freedom of movement of the degree associated with a formal
arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation omitted). The
Court has refused to extend the holding in Miranda to non-custodial interrogations. See
Oregon v. Mathiason, 429 U.S. 492 (1977) (holding that a defendant’s confession was
admissible because there was no indication that the questioning took place in a context
where his freedom to depart was restricted in any way); see also Beheler, 463 U.S. at
1124-25 (noting that the ultimate inquiry is simply whether there is a “formal arrest or
restraint on freedom of movement” of the degree associated with a formal arrest). In
determining whether a reasonable person would consider themselves in custody, the
Tennessee Supreme Court instructs us to consider a variety of factors, including the
following:

                                           -11-
      the time and location of the interrogation; the duration and character of the
      questioning; the officer’s tone of voice and general demeanor; the suspect’s
      method of transportation to the place of questioning; the number of police
      officers present; any limitation on movement or other form of restraint
      imposed on the suspect during the interrogation; any interactions between
      the officer and the suspect, including the words spoken by the officer to the
      suspect, and the suspect’s verbal or nonverbal responses; the extent to
      which the suspect is confronted with the law enforcement officer’s
      suspicions of guilt or evidence of guilt; and finally, the extent to which the
      suspect is made aware that he or she is free to refrain from answering
      questions or to end the interview at will.

State v. Walton, 41 S.W.3d 75, 82-83 (Tenn. 2001) (quoting State v. Anderson, 937
S.W.2d 851, 855 (Tenn. 1996)).

       A non-custodial interrogation must be voluntary in order to be admissible.
Confessions that are involuntary, i.e., the product of coercion, whether it be physical or
psychological, are not admissible. Rogers v. Richmond, 365 U.S. 534, 540 (1961). In
order to make the determination, the particular circumstances of each case must be
examined. Monts v. State, 400 S.W.2d 722, 733 (1966). Coercive police activity is a
necessary prerequisite in order to find a confession involuntary. State v. Downey, 259
S.W.3d 723, 733 (Tenn. 2008). A confession “must not be the product of ‘any sort of
threats or violence, . . . any direct or implied promises, however slight, nor by the
exertion of any improper influence.’” Downey, 259 S.W.3d at 733-34 (quoting State v.
Smith, 42 S.W.3d 101, 109 (Tenn. Crim. App. 2000)).

       Promises of leniency, however, do not necessarily render a confession involuntary;
instead, the critical question is whether law enforcement’s actions were of a nature to
overbear a defendant’s will to resist. State v. Smith, 933 S.W.2d 450, 456 (Tenn. 1996).
The court must determine “whether the accused was so gripped by the hope of leniency
that he did not or could not freely and rationally choose among the available courses of
action.” State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980) (quoting Hunter v. Swenson,
372 F. Supp. 287 (W.D. Mo. 1974)). Factors in determining voluntariness include the
age of a defendant; their level of intelligence and education; their prior experience with
law enforcement; repeated and prolonged nature of the questioning; the length of the
detention prior to obtaining the statement; the lack of any advice to a defendant of their
constitutional rights; whether there was an unnecessary delay in bringing them before a
magistrate before they gave the confession; whether they were injured, intoxicated,
drugged, or in ill health; whether they were deprived of food, sleep, or medical attention;
whether they were physically abused; and whether they were threatened with abuse.
State v. Climer, 400 S.W.3d 537, 568 (Tenn. 2013).

                                           -12-
        Conversely, prior to any custodial interrogation, law enforcement officers are
required to warn a defendant that they have the right to remain silent; that anything they
say can be used against them in a court of law; that they have the right to the presence of
an attorney; and that, if they cannot afford an attorney, one will be appointed for them
prior to any questioning if they so desire. See Miranda, 384 U.S. at 479. A defendant’s
rights to counsel and against self-incrimination may be waived as long as the waiver is
made voluntarily, knowingly, and intelligently. Id. at 478; State v. Middlebrooks, 840
S.W.2d 317, 326 (Tenn. 1992). In order to affect a waiver, a defendant must be
adequately apprised of their right to remain silent and the consequence of deciding to
abandon the right. State v. Stephenson, 878 S.W.2d 530, 544-45 (Tenn. 1994). The State
bears the burden of proving by a preponderance of the evidence that a defendant waived
their Miranda rights. Climer, 400 S.W.3d 537, 564 (Tenn. 2013) (quoting Berghuis v.
Thompkins, 560 U.S. 370, 384 (2010)). Certain factors apply in the determination of
whether a waiver of Miranda rights qualifies as voluntary, knowing, and intelligent: the
age and background of a defendant; their education and intelligence level; their reading
and writing skills; their demeanor and responsiveness to questions; their prior experience
with the police; any mental disease or disorder; any intoxication at the time of the waiver;
and the manner, detail, and language in which the Miranda rights were explained. State
v. Echols, 382 S.W.3d 266, 280-81 (Tenn. 2012) (citing State v. Blackstock, 19 S.W.3d
200, 208 (Tenn. 2000); State v. Callahan, 979 S.W.2d 577, 583 (Tenn. 1998)).

                                        III. Waiver

       Initially, we address the doctrine of waiver. The Defendant argues that the State
has waived the issue of whether the Defendant was in custody by failing to argue it in the
trial court. The record evinces that the Defendant sought to suppress the second
statement taken by Sergeant Murray in the KPD interview room. There is no indication
from the record that the Defendant implicated himself in the rape while he spoke with
Sergeant Murray on the scene.

        The issue of custody was ostensibly raised in the Defendant’s motion to suppress,
wherein he argued, “The statements were obtained after the commencement of formal
proceedings and the statements were taken in violation of the [D]efendant’s right to
counsel.” The State filed a response to the Defendant’s motion, which did not include
any argument that the Defendant was not in custody at the time he made his statement.
At the motion to suppress hearing, defense counsel, during opening argument, requested
that the trial court “suppress any statement that [the Defendant] gave the police at the
time that he was taken into custody[.]” Defense counsel noted during closing argument
that, for Miranda to apply, the Defendant had to be in custody. Regarding the issue of
custody, defense counsel averred,


                                            -13-
       I think from the testimony it’s obvious that he was in custody. He was
       taken to the police station by a detective in a police car to an interview
       room where he was given his Miranda warnings and interviewed for nearly
       three hours. I don’t think custody is an issue.

              [Sergeant] Murray testified here and at the preliminary hearing,
       “Yeah, he was free to go, but he was going to leave his clothes.” When I
       asked [Sergeant] Murray here, “Would you have let him go? He said,
       “Probably not.” So I think if “probably not” is his answer, he was probably
       in custody. So I don’t think custody’s an issue, so Miranda applies.

The State failed to address the issue of custody in its closing argument. The trial court
did not address the custodial nature of the interrogation in either its oral or written ruling.
It is clear from the record that the pivotal issue at the suppression hearing was whether,
under the totality of the circumstances, the Defendant knowingly and voluntarily waived
his Miranda rights.

        While there may be some overlap in the factors to be considered by a trial court in
deciding (1) whether a defendant was in custody; (2) whether a non-custodial confession
was voluntary; or (3) whether a defendant in custody knowingly waived their Miranda
rights before making a statement, these determinations are not the same although they are
often intertwined. See State v. Susan Jo Walls, No. M2014-01972-CCA-R3-CD, 2016
WL 1409836, at *18 (Tenn. Crim. App. Apr. 7, 2016) (citing State v. Phillips, 30 S.W.3d
372, 376 (Tenn. Crim. App. 2000) (first, concluding that the defendant was not in
custody for purposes of Miranda, and then, proceeding to examine the voluntariness of
the non-custodial confession)), rev’d on other grounds, State v. Walls, 537 S.W.3d 892,
894 (Tenn. 2017). The Defendant correctly notes that it is well-settled law that an
appellant cannot raise an issue for the first time on appeal nor can they change their
arguments on appeal. See Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983)
(stating that it “has long been the general rule that questions not raised in the trial court
will not be entertained on appeal”); State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. 1988)
(“It is elementary that a party may not take one position regarding an issue in the trial
court, change his strategy or position in mid-stream, and advocate a different ground or
reason in this [c]ourt.”).

       The State and the Defendant disagree about this court’s holding in Walls regarding
the waiver doctrine. The State is correct that the defendant’s Miranda challenge in Walls
was waived due to the defendant’s failure to include it her motion for new trial. 2016
WL 1409836, at *16. However, this court went on to address whether the defendant’s
Miranda issue entitled her to relief under the plain error doctrine. Id. at *16-18. In so
doing, this court noted that the “pivotal question” before the trial court in that case was
“whether there [was] a formal arrest or, at least, the restraint of freedom of movement to
                                             -14-
be the functional equivalent thereof.” Id. at *18. The trial court reviewed the relevant
factors and concluded that the defendant was not “in custody” when she confessed. Id.
However, on appeal, the defendant did not make any argument that she was “in custody”
as contemplated by Miranda, but she instead argued that her confession was not
voluntarily given. Id. This court concluded that the defendant had, “for all intents and
purposes, changed theories on appeal[,]” stating that “[t]his court may consider only the
arguments presented to the trial court as to why the statement should have been
suppressed.” Id. For this reason, and because “there [was] no evidence in the record that
the [d]efendant was intimidated, coerced, threatened, or otherwise induced into making
the statement,” plain error relief was not warranted. Id.

        The State argues that waiver is inapplicable to its argument that the Defendant was
not in custody because it “was a threshold issue that had to be proven in order to show he
did not voluntarily waive his Miranda rights.” The State also submits that, in Walls, this
court “previously examined whether a defendant was in custody when the record did not
reflect the State challenged custody in the trial court.” We disagree with the State on
both counts. As outlined above, this court did not make any determination regarding the
custodial nature of the interrogation in Walls. This court did very briefly address the
voluntariness of the confession in conducting plain error review. The State also cites to
State v. Self, in support of its argument, noting that the court in that case examined
whether the defendant was in custody despite the fact that “the trial court did not make an
explicit finding about whether the [d]efendant was in custody.” No. E2014-02466-CCA-
R3-CD, 2016 WL 4542412, at *32-33. However, it is not clear from that opinion what
issues surrounding the statement were raised in the trial court, and the doctrine of waiver
was not addressed.

        In contrast, this court held that “the State has a duty to notify the defendant that it
opposes his motion on standing grounds, a result which reflects the traditional policies of
notice and fair play.” State v. White, 635S.W.2d 396, 399 (Tenn. Crim. App. 1982). The
White court determined, “If the State fails to raise the standing issue, but instead opposes
the motion on the merits, the defendant is entitled to infer that the State concedes his
standing and need not offer any evidence relevant to his expectation of privacy.” Id. at
400. We hold that the rationales of Walls and White apply here. The State is not entitled
to any deferential treatment, especially as the Fifth Amendment constitutional protections
in Miranda were formulated to protect a defendant, not the government. Accordingly,
any issue surrounding the custodial nature of the interview has been waived by the State
for failing to raise it in the trial court. We will conduct our analysis by assuming that the
Defendant was in custody at the time he gave the statement at issue.

                                 IV. Intellectual Disability


                                             -15-
       When a defendant’s competency to waive the rights provided by Miranda is
challenged, the determinative issue is “whether the defendant had the capacity in the first
place to form a will of his own and to reject the will of others.” State v. Thacker, 164
S.W.3d 208, 249 (Tenn. 2005) (quoting State v. Benton, 759 S.W.2d 427, 431 (Tenn.
Crim. App. 1988)). “[T]he totality of the circumstances must reveal ‘an uncoerced
choice and the required level of comprehension before a court can properly conclude that
Miranda rights have been waived.’” Blackstock, 19 S.W.3d at 208 (quoting Stephenson,
878 S.W.2d at 545; Moran v. Burbine, 475 U.S. 412, 421 (1986)). Discussing the
capacity of intellectually disabled suspects to knowingly and intelligently waive their
rights after being provided Miranda warnings, our supreme court has observed that
“[m]entally retarded individuals present additional challenges for the courts because they
may be less likely to understand the implications of a waiver.” Id. (citing United States
v. Murgas, 967 F. Supp. 695, 706 (N.D.N.Y. 1997)). The court explained,

               Although there is likely to be a level of deficiency so great that it
       renders a defendant unable to make a knowing and intelligent waiver,
       nearly every court to consider the issue has held that mental impairments or
       mental retardation are factors that must be considered along with the
       totality of the circumstances. As one court has said, “no single factor, such
       as IQ, is necessarily determinative in deciding whether a person was
       capable of knowingly and intelligently waiving . . . the constitutional rights
       embraced in the Miranda rubric.”

Id. (quoting Fairchild v. Lockhart, 744 F. Supp. 1429, 1453 (E.D. Ark. 1989)) (alteration
in Blackstock).

        At the outset, we find it necessary to address the burden of proof because both
parties stated at the evidentiary hearing that the Defendant had the burden. However, we
reiterate that it is the State that bears the burden of proving by a preponderance of the
evidence that a defendant waived their Miranda rights when the issue has been raised.
Climer, 400 S.W.3d 537, 564 (Tenn. 2013) (quoting Berghuis, 560 U.S. at 384). Stated
another way, the State bears the burden of demonstrating, via the totality of the
circumstances, that a defendant “had a meaningful awareness of his Miranda rights, as
well as the consequences of waiving his rights.” Blackstock, 19 S.W.3d at 209 (citing
Stephenson, 878 S.W.2d at 544-45).

       The Defendant was twenty-six years old at the time of the statement. He suffered
from an intellectual disability; however, the Defendant was “a legally competent adult”
and did not have a “conservator acting on his behalf.” No proof suggested that the
defendant had any prior experience with the criminal justice system. We also note that
there appeared to be some information about the Defendant’s educational history that was
contained in a sealed record and considered by the trial court in its ruling. The trial court
                                            -16-
noted in its written order that, previously, the Defendant “ha[d] been found to have
intellectual disability. His Wechster intelligence scores [were] in the sealed record from
his school. The [D]efendant’s psychological intelligence scores [were] 53 on the WISC
III in 1995 and 48 in 1998.” Additionally, the State argued in its response to the
Defendant’s suppression motion that “the [D]efendant completed High School in Gate
City, Virginia and obtained a special education diploma.” The sealed record is not a part
of the record on appeal. It is an appellant’s responsibility to prepare an adequate record
for this court to address the issues. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).

       After indictment, the trial court ordered the Defendant to undergo a competency
evaluation, and the evaluators initially determined that the Defendant was not competent
to stand trial because he lacked the “sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding and a rational as well as factual
understanding of the proceedings against him.” It was determined that the Defendant was
competent to stand trial after he received competency training.

        In its ruling at the suppression hearing, the trial court, granting the Defendant’s
motion to suppress, stated that it had heard testimony from Sergeant Murray and
Detective Horne “regarding the circumstances” of the Defendant’s statement at the KPD.
The trial court noted that Sergeant Murray testified that the Defendant “seemed to be
calm” at first, “and then at some point[,] he became emotional and was crying[,]” and that
the Defendant appeared to understand his Miranda rights. The trial court remarked that
Detective Horne testified that the Defendant “was crying and very apologetic and . . .
upset” but that “he seemed to understand . . . what he was . . . doing.” The trial court
further noted that the Defendant had misspelled his name on the statement.

        The trial court cited Blackstock and commented that the Defendant “had been
diagnosed as being mentally retarded.” Thereafter, the trial court mentioned that the
Greene Valley report—completed six months after the Defendant gave his confession—
said that the Defendant did not understand the difference between a felony and a
misdemeanor and that he “did not have understanding of his rights.” The court found the
Greene Valley report “to be very pertinent under all the circumstances.” Utilizing the
“‘totality of the circumstances’ case,” the trial court determined that the Defendant’s
statement was suppressed.

        In a subsequent written order, the trial court referenced a separate section of the
Greene Valley report—detailing the competency training—where the Defendant reported
that, in stressful situations, he tends to shut down and become quiet. The trial court
continued, remarking that the Defendant told examiners that he felt scared and
intimidated on the day of his arrest, that “he did not know he could request an attorney
and felt he had to talk[,]” that he said he wanted to go home, and that he claimed that he
was told he could go after he admitted to the crime. The trial court also noted that the
                                           -17-
interview was not recorded. However, the court observed that Sergeant Murray testified
that he explained the Miranda rights to the Defendant, and the Defendant indicated he
understood those rights and signed the waiver form.

        The State argues that the trial court simply summarized the evidence and did not
accredit the Defendant’s statements in the report. However, in providing the details from
Greene Valley report, the trial court remarked that the report described the Defendant’s
“characterization of the police interview which led to the confession.” The trial court
only referenced the relevant portions of the Greene Valley Report after giving a factual
background and outlining the law pertaining to Miranda waivers. Furthermore, the trial
court placed Sergeant Murray’s testimony in parentheses. We disagree with the State that
the trial court did not accredit the report or the Defendant’s statements therein, albeit the
trial court’s implicitly doing so.

       The trial court concluded its order by citing Blackstock for the proposition that
“mental impairments or mental retardation are factors that must be considered along with
the totality of the circumstances.” The court then held that, under the “totality of the
circumstances [] concerning Miranda waivers,” the Defendant’s motion was granted and
his confession was suppressed.

       We conclude that, although the trial court was not explicit, it did consider several
of the Blackstock factors in making its determination that the Defendant failed to
knowingly and voluntarily waived his Miranda rights. The trial court considered more
than just the Defendant’s intellectual disability, including the testimony “regarding the
circumstances” of the Defendant’s statement at the KPD; the Defendant’s emotional state
during the interview; the statements that the Defendant made to the evaluators; the
evaluators’ conclusions in the report; and the fact that the Defendant misspelled his name
on the admonition form.

       In addition, the trial court mentioned in its ruling that the interview was not
recorded. We agree with the Defendant that “the State’s decision not to record the
interview has prevented the trial court and this [c]ourt from reviewing the proceedings
objectively and conducting a meaningful evaluation of the following factors—level of
functioning, demeanor, responsiveness to questioning, and the manner, detail, and
language in which the Miranda rights are explained.” We are not holding that a recording
is required. However, when the State has the burden of proof to establish that the
Miranda waiver was knowingly and voluntarily made, the seemingly purposeful lack of a
recording in a case such as this, which includes a level of intellectual disability, could be
particularly detrimental to the State’s case. Here, the trial court appropriately considered
the lack of any recording in its analysis. Accordingly, we hold that, because the
prevailing party “is entitled to the strongest legitimate view of the evidence adduced at
the suppression hearing as well as all reasonable and legitimate inferences that may be
                                            -18-
drawn from the evidence”; and because the burden is on the State, via the totality of the
circumstances, that the Defendant “had a meaningful awareness of his Miranda rights, as
well as the consequences of waiving his rights’”; we cannot say that the trial court erred
when it held that that Defendant did not knowingly and voluntarily waive his Miranda
rights. See Climer, 400 S.W.3d at 566 (concluding that, under the totality of the
circumstances, “the State failed to prove by a preponderance of the evidence that
[d]efendant in fact understood his right to appointed counsel, thus precluding a finding
that [d]efendant implicitly waived his Miranda rights.” (citing Commonwealth v. Hoyt,
958 N.E.2d 834, 844-45 (Mass. 2011) (holding that the State could not meet its burden of
proving a valid waiver of Miranda rights because the defendant did not understand his
right to appointed counsel))).

                                    CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




                                           -19-
