         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 15, 2002 Session

           STATE OF TENNESSEE v. CHARLES WAYNE SAWYER

                  Direct Appeal from the Circuit Court for Marshall County
                              No. 14856    Charles Lee, Judge



                  No. M2001-01062-CCA-R9-CO - Filed September 26, 2003


A Marshall County grand jury indicted the defendant, Charles Wayne Sawyer, for aggravated sexual
battery. The defendant filed a motion to suppress a statement that he allegedly made to the police
without first being advised of his rights under Miranda. He made the alleged statement in response
to a police officer’s reading of the affidavit of complaint supporting his arrest warrant. The trial
court, after conducting an evidentiary hearing, granted the defendant’s motion to suppress his
statement, finding that the reading of the affidavit was the functional equivalent of interrogation and
therefore should have been prefaced by an admonishment of the defendant’s constitutional rights.
The state, with the trial court’s permission, filed an interlocutory appeal, and pursuant to the state’s
Rule 9 application, this Court agreed to review the state’s appeal. After reviewing the evidentiary
hearing and other materials presented to this Court, we find that the trial court properly suppressed
the defendant’s statement and therefore affirm the judgment below.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Mike
McCowen, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General,
for the appellant, State of Tennessee.

Michael E. Gilmer, Columbia, Tennessee, for the appellee, Charles Wayne Sawyer.

                                              OPINION

                                        Factual Background

        In its order granting the defendant’s motion to suppress, the trial court made certain findings
of fact. The court found that two Marshall County police officers, accompanied by a Maury County
police officer, went to the defendant’s home in Maury County where the Marshall County officers
placed the defendant under arrest. While at the defendant’s home, a Marshall County police officer
advised the defendant that he was under arrest, read him the arrest warrant, told him that the police
were going to take him to jail for questioning, and advised him of the amount of his bond. The
defendant was allowed to gather some personal items before leaving his home. The trial court noted
that there is a factual dispute regarding whether the police had any conversations with the defendant
en route to the jail. The officers claim that they had no conversations with the defendant during the
car ride, while the defendant claims that one of the police officers read him the arrest warrant again
and advised him that his cooperation would facilitate the process. The trial court refrained from
accrediting either version of the events.

        After approximately thirty minutes from the time of his arrest, the defendant arrived at the
Marshall County Sheriff’s Department where he was taken into a detective’s office for questioning.
A detective then read the affidavit of complaint supporting the arrest warrant to the defendant. The
affidavit states, in pertinent part, that

         on or about July 22, 2001 Charles Sawyer did rub the leg and vaginal area of [the
         child1] who is 12 years old. The incidence [sic] occurred at 1489 Bridle lane [sic] in
         Chapel Hill. This did occur in Marshall County, Tennessee.

The police officer who read the affidavit testified that the defendant responded to the reading of the
affidavit by making a statement. In the alleged statement the defendant admitted rubbing the leg of
the child, but denied touching her vaginal area. While the defendant denies making any statement,
the court found that it was unnecessary to make a finding as to whether the defendant actually did
respond to the reading of the affidavit by making a statement. The trial court did conclude, however,
that the police officers read the affidavit to the defendant only once and that this reading occurred
when the defendant was in the detective’s office at the Marshall County Sheriff’s Department. The
court also found that the police officers “made the defendant no promises [n]or attempted to
purposefully elicit a response from the defendant.”

        The court then applied these facts to the law regarding custodial interrogation. The court
noted that the rules announced in Miranda and its progeny are only applicable if the defendant is both
in custody and being interrogated. In these custodial interrogation situations, the police officers are
required to apprise the defendant of his or her constitutional rights per Miranda, or any statements
made by the defendant, regardless of whether they were voluntarily made, are inadmissible. The trial
court concluded that because the defendant was clearly in custody when the police read him the
affidavit of complaint, the admissibility of any statement stemming from that reading turns on the
issue of whether the reading of the affidavit was actual interrogation or the functional equivalent
thereof. Because the reading of the affidavit was not “spontaneous to [the defendant’s] arrest” but
was thirty minutes after his arrest, because the reading took place at the sheriff’s department, and
because the allegations contained in the affidavit were very specific, the court concluded that the


         1
                   The child’s na me, which is included in the actual affidavit of complaint, has been omitted per the policy
of this Court to refrain from referring to underage victims of sexual abuse by name.

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police officer reading the affidavit should have known that the reading of the allegations was
“reasonably likely to elicit an incriminating response from the defendant.” Rhode Island v. Innis,
446 U.S. 291, 301 (1980). Accordingly, the trial court found reading the affidavit of complaint to
be the functional equivalent of interrogation and any statements made in response to that reading
must be suppressed.

        As noted above, the state filed an interlocutory appeal challenging the propriety of the trial
court’s grant of the defendant’s motion to suppress. The state argues that the trial court improperly
granted the defendant’s motion because the defendant made a spontaneous statement that was not
responsive to police action. We respectfully disagree and accordingly affirm the trial court’s
suppression of the defendant’s alleged statement.

                          Standard of Review for Motions to Suppress

        Our standard of review for a trial court’s findings of fact and conclusions of law on a motion
to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this
standard, “a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” Id. at 23. As is customary, “the prevailing party in the trial court is
afforded the ‘strongest legitimate view of the evidence and all reasonable and legitimate inferences
that may be drawn from that evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting
State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)). Nevertheless, this Court reviews de novo the
trial court’s application of the law to the facts, without according any presumption of correctness to
those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989
S.W.2d 295, 299 (Tenn. 1999).

                                      Custodial Interrogation

        The Fifth Amendment to the United States Constitution guarantees an individual a right
against self-incrimination, and in order to protect this right, the United States Supreme Court has
held that police officers interrogating an individual in custody must first follow certain procedural
safeguards advising the individual of his or her rights under the Fifth Amendment. See Miranda v.
Arizona, 384 U.S. 436 (1966); Rhode Island v. Innis, 446 U.S. 291 (1980). In order to trigger this
requirement, and individual must be both be in custody and be interrogated. See Innis, 446 at 301.
Custody has been defined by the Court as a situation in which a suspect has been placed under
formal arrest or has been “otherwise deprived of his [or her] freedom of action in any significant
way.” Miranda, 384 U.S. at 444. Interrogation may be both express questions or their functional
equivalent, i.e. “any words or actions on the part of the police (other than those attendant to arrest
and custody) that the police should know are reasonably likely to elicit incriminating information”
or any “practice that the police should know is likely to evoke an incriminating response from a
suspect.” Innis, 446 U.S. at 301.

        Before initiating a custodial interrogation, the police must advise individuals that they have
the right to remain silent; that any statement that they make may be used against them; that they have


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the right to the presence of an attorney during questioning; and that if they cannot afford to hire an
attorney, one will be appointed to represent them. See Miranda, 384 U.S. at 444. Any statements
made during custodial interrogation without the benefit of these warnings are inadmissible in court.
See Dickerson v. United States, 530 U.S. 428 (2000).

        When reviewing whether the trial court properly granted the defendant’s motion to suppress
in the instant case, we must first determine whether the defendant was subjected to custodial
interrogation before being advised of his rights under Miranda. The trial court found that the
defendant was unquestionably in custody at the time that he made the alleged statement. We agree
with the trial court’s finding. The defendant had been placed under formal arrest prior to being
transported to the sheriff’s department where he made the alleged statement, and, as noted earlier,
the Supreme Court has defined custody to include situations in which the suspect has been placed
under formal arrest. See Miranda, 384 U.S. at 444. Indeed, the State does not dispute that the
defendant was in custody. Therefore, the disposition of this appeal turns on whether the police
action of reading the defendant the affidavit of complaint supporting the arrest warrant is tantamount
to interrogation or its functional equivalent.

        This issue of whether reading the affidavit in support of a defendant’s arrest warrant to the
defendant when the defendant was arrested thirty minutes prior to the reading and while the
defendant was in a detective’s office is one of first impression for this state. In its order, the trial
court cites several cases with fact patterns that are similar to those of the instant case, but ultimately
found them all distinguishable from the facts of the instant case, concluding that the cases were
distinguishable because the defendants in each case either made spontaneous statements that were
not the result of interrogation or its functional equivalent or made statements in response to the
reading of an arrest warrant, which does not contain the specific allegations that an affidavit in
support of an arrest warrant contains. The trial court concluded that the reading in a detective’s
office of the affidavit in support of the arrest warrant, which is specific and reads as an accusation,
coupled with the thirty or more minute delay between the defendant’s arrest and the reading of the
affidavit, indicated that the police should have known that their action was reasonably likely to elicit
an incriminating response. See Innis, 446 U.S. at 301.

         In the 2001 case of State v. Walton, 41 S.W.3d 75 (Tenn. 2001), our supreme court visited
the issue of when Miranda warnings are required, articulating the rationale for these warnings. See
id. at 81-82. The court explained that the prophylactic rules set forth in Miranda were designed to
protect one’s right against self-incrimination. See id. Our federal constitution has codified this right
in its Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case
to be witness against himself.” U.S. Const. art. V. The analogous provision in Tennessee’s state
constitution is set forth in Article I, section 9, which guarantees that “in all criminal prosecutions,
the accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9.
As the supreme court reiterated in Walton, the court has traditionally interpreted the analogous state
provision to be no broader than its federal counterpart. However, “one ‘significant difference
between these two provisions is that the test of voluntariness of confessions under Article I, [section]
9 is broader and more protective of individual rights than the test of voluntariness under the Fifth


                                                   -4-
Amendment.” Walton, 41 S.W.3d at 82 (quoting State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992)
(citing State v. Smith, 834 S.W.2d 915 (Tenn. 1992)). Thus, when reviewing the issue presented in
the instant appeal, we will examine the state action carefully, mindful of the broader protection
afforded an individual’s right against self-incrimination under Tennessee law.

        In its order granting the defendant’s motion to suppress, the trial court noted that it had failed
to find analogous case law that would be instructive regarding the appropriate disposition of the
defendant’s motion. We have thoroughly researched the issue, as well, and have similarly failed to
find analogous case law in this jurisdiction or others. We find that the case law discovered in our
research is distinguishable from the instant case because the facts underlying each case reflect
situations in which either (a) the defendant initiated a conversation with the police after being
advised of his or her rights per Miranda, (b) the defendant made the statement at issue after being
advised of the general charges against him, as opposed to a specific accusation such as one contained
in an affidavit in support of an arrest warrant, or (c) the defendant made a spontaneous statement that
was not responsive to police action. After summarizing the facts of each case in each of these
categories, we will then address how, under the totality of the circumstances, the police action at
issue here was the functional equivalent of custodial interrogation and not a spontaneous statement,
a statement initiated by the defendant, or a statement made in response to being informed of the
general charges against the arrestee.

         Turning first to a case in which the defendant initiated a dialogue with police rather than
responding to police interrogation, in State v. Jones, 49 P.3d 273 (Ariz. 2002), the Arizona Supreme
Court held that the defendant waived his Miranda rights when he initiated a conversation with the
police. See id. at 278. Although the defendant had been previously advised of his rights under
Miranda and had requested counsel, the defendant’s subsequent insistence that a police officer speak
with him about his crime was a voluntary initiation of a post-Miranda discussion. See id.
Accordingly, the court found that any statements stemming from this conversation were properly
admitted at trial. See id. at 278-79. Conversely, police initiation of interrogation after a defendant
has invoked his or her rights under Miranda warrants suppression of any statements stemming from
that initiation. See, e.g., Edwards v. Arizona, 451 U.S. 477 (1981); United States v. Ortiz, 177 F.3d
108, 109-10 (1st Cir. 1999); United States v. Tyler, 164 F.3d 150, 154 (3rd Cir. 1998).

        In the instant case, the defendant did not initiate discussions with police after having invoked
his rights under Miranda. He was not advised of his Miranda rights until after he made the alleged
statement he sought to suppress, and once he was advised of his Miranda rights, he immediately
invoked his right to have counsel present during his interrogation, a request that the Marshall County
Sheriff’s Department honored. On these bases, we find the above case law inapplicable to the instant
case.

        Turning next to cases in which the defendant made a statement in response to being informed
of the general charges against him or her, in Norman v. Commonwealth, No. 2925-99-1, 2000 WL
1693974 (Va. Ct. App. Nov. 14, 2000), the Virginia Court of Appeals held that police telling a
defendant of the general charges pending against him was not the functional equivalent of


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interrogation because such action was not reasonably likely to elicit an incriminating response. See
id. at *3-*5 (citing Gates v. Commonwealth, 516 S.E.2d 731, 733 (Va. Ct. App. 1999) (holding
same)). Similarly, in People v. Ealey, 272 N.E.2d 269 (N.Y. App. Div. 2000), the New York
Supreme Court held that merely informing the defendant of a general accusation against him first
at the time of his arrest and subsequently in response to the defendant’s question about the reason
for his detention was neither interrogation nor its functional equivalent. See id. at 269. Last, in
United State v. Barnes, 195 F.3d 1027 (8th Cir. 1999), a police officer informed the defendant of the
pending charges against him, to which the defendant responded that his actions were legal and did
not constitute a crime. The Eighth Circuit held that this action was not reasonably likely to elicit an
incriminating response and therefore was not the functional equivalent of an interrogation in
violation of Miranda. See id. at 1029.

        In the instant case, the action which evoked the alleged statement that the defendant seeks
to suppress was not made by the defendant in response to having been told of the charges against
him. The defendant was apprised of the charges against him at his home some thirty minutes before
he made the statement at issue, and neither the police nor the defendant allege that the defendant
made a statement in response to that action. The defendant allegedly made the statement at issue
after a police officer read the specific allegations contained in the affidavit supporting the
defendant’s arrest warrant. Because these allegations were specific, naming the alleged victim, the
defendant’s alleged criminal actions, and the alleged date and place of this crime, and were not
general in nature, naming only the defendant’s indicted offense of aggravated sexual battery, we find
that the defendant’s case is distinguishable from those discussed above.

         Turning finally to cases in which a defendant made a voluntary statement unresponsive to
police action, in State v. Land, 34 S.W.3d 516 (Tenn. Crim. App. 2000), this Court refused to
suppress the unsolicited statement volunteered by a defendant who had been arrested by a police
officer several days earlier and who encountered this police officer in the hallway of a court building
while awaiting his appointed counsel. See id. at 524-25. This Court held that the police action
involved, the police officer’s mere presence in the vicinity of the defendant, did not constitute
interrogation. See id. The defendant’s statement was not made in response to the police officer’s
action and therefore did not trigger the officer’s duty to first advise the defendant of his
constitutional rights. See id. In another Tennessee case, State v. Cyrus Wilson, No. 01C01-9408-
CR-00266, 1995 WL 676398 (Tenn. Crim. App. at Nashville, Nov. 15, 1995), the state successfully
sought to introduce a statement made by the defendant before he committed the murder at issue. See
id. at *1. The defendant stopped a police officer to report that the victim had stolen his car. See id.
This Court held that the defendant’s statements to the police officer were not the product of custodial
interrogation, but were rather a voluntary, spontaneously-made statement. See id. at *3; c.f. Walton,
41 S.W.3d at 85 (holding that when a defendant makes an initial voluntary statement, the voluntary
statement does not trigger Miranda, but any follow-up questions in response to that initial statement
do require that the defendant be Mirandized first if the police have reason to believe that the
questions are reasonably likely to elicit an incriminating response). Thus, this Court held that the trial
court properly denied the defendant’s motion to suppress this statement. See Cyrus Deville Wilson,
1995 WL 676398, at *3.


                                                   -6-
        Similarly, in other jurisdictions, courts have refused to suppress spontaneous statements made
by a defendant who was not first informed of his or her rights under Miranda. In People v. Fisher,
420 N.W.2d 858 (Mich. Ct. App. 1988), the Michigan Court of Appeals held that a defendant’s
statement to a police officer made immediately after the defendant’s arrest when the police officer
had only asked the defendant his name was a spontaneous voluntary statement that did not trigger
the police officer’s duty to advise the defendant of his rights under Miranda. See id. at 862-63. In
the Pennsylvania Superior Court case of Commonwealth v. Avondet, 654 A.2d 587 (Pa. Super. Ct.
1995), the court held that the defendant’s statement made shortly after his arrest after he had been
apprised that he was charged with rape was spontaneously made and therefore should not be
suppressed as a statement made without the benefit of Miranda warnings. See id. at 590.

        These cases all address the admissibility of statements that were not the product of custodial
interrogation, but were spontaneously made. The state argues that the defendant in the instant case
also volunteered the statement at issue; the defendant made the statement before the police began
their interrogation. We respectfully disagree. The trial court found that the police arrested the
defendant and transported him to their sheriff’s department before apprising him of his rights.
Therefore, the defendant had been in custody for at least thirty minutes before he was read his rights.
Upon his arrival at the sheriff’s department, police officers escorted the defendant into a police
detective’s office where the detective, who was sitting across the table from the defendant, read the
defendant the affidavit in support if his arrest warrant. This affidavit contained detailed allegations
supporting the defendant’s arrest. Specifically, the affidavit stated that on or about a certain date,
the defendant rubbed the leg and vaginal area of the alleged victim, who was twelve-years-old at the
time of the incident. The affidavit also named the address and location where this alleged crime
occurred. After the police officer read the defendant the allegations in the affidavit, the defendant
allegedly responded that he had rubbed the victim’s leg, but not her vaginal area. The police then
read the defendant his rights, at which time the defendant requested an attorney and the police ceased
the interrogation.

          When determining whether police conduct is indeed interrogation or its functional equivalent,
the intent of the police officers who made the statement or performed the questionable conduct is
a relevant factor; however, the focus of our inquiry should be on the defendant’s perception of the
statement or conduct. See Innis, 446 U.S. at 301-02. Specifically, we must inquire whether the
police conduct was conduct reasonably likely to elicit an incriminating response from the defendant.
See id. at 301. We find that the specific nature of the allegations read to the defendant is such that
it is unlikely that an individual would remain mute and refrain from responding to these accusations.
Moreover, because the police had informed the defendant some thirty minutes earlier of the general
nature of these charges and that he would be questioned at a later time, we conclude that the
defendant could have reasonably assumed that since he had now arrived at the sheriff’s department,
had been seated in a detective’s office, and was being told of the specific allegations supporting his
arrest, the police had begun their interrogation of him and that some response was expected from
him.




                                                 -7-
        Indeed, apart from Miranda considerations, silence in the face of such a damning accusation
as that contained in the affidavit of complaint might under some circumstances be considered as a
tacit admission of the truth of the accusation thus constituting an exception to the hearsay rule. See
Cohen, Sheppeard, Paine, Tennessee Law of Evidence, § 8.06 [4] [d] ( 4th ed. 2000). Furthermore,
the defendant’s silence in the face of these accusations could, without Miranda warnings, might be
used to cross-examine him at trial should he elect to testify. See Fletcher v. Weir, 455 U.S. 603, 606
(1982).


                                             Conclusion

        In summary, we believe that under the totality of the circumstances of this case the reading
of the affidavit of complaint was an action reasonable likely to elicit a response from the defendant
and therefore amounts to an un-Mirandized interrogation. As a result the trial judge properly
suppressed the defendant’s alleged statement. Accordingly, the judgment of the trial court is
AFFIRMED.



                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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