State v. David Bornfriend ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
FEBRUARY 1998 SESSION
September 21, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708-CC-00297
)
Appe llant, )
) WEAKLEY COUNTY
)
V. )
) HON . WILL IAM B. AC REE , JR.,
) JUDGE
DAVID BORNFRIEND, )
) (CRIMINALLY NEGLIGENT
Appellee. ) HOMICIDE AND ARSON)
FOR THE APPELLEE: FOR THE APPELLANT:
STEVE CONLEY JOHN KNOX WALKUP
BRUCE S. CONLEY Attorney General & Reporter
Conley, Campbell, Moss & Smith
P.O. Box 427 ELIZABE TH T. RY AN
Union City, TN 38261 Assis tant At torney Gen eral
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
THOM AS A. THO MAS
District Attorney General
JAMES T. CANNON
Assistant District Attorney General
P.O. Box 218
Union City, TN 38261-0218
OPINION FILED:_____________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Appellant, the State of Tennessee (state), appeals from a judgment of the
trial court suppressing three statements m ade by D avid Born friend (de fendan t) to
law enforce ment o fficers. The state appeals pursuant to Rule 3(c) of the Tennessee
Rules of Appe llate Procedure on the basis that the trial court’s order granting the
motion to suppress had the substantive effect of dismissing the indictment against
the defendant. In this co urt, the s tate co ntend s “the tria l court e rrone ously
suppressed the three statements given by the defendant because none of the
stateme nts were involun tary.” After a th orough review of th e record , the briefs
submitted by the parties, and the law governing the issue prese nted fo r review , it is
the opinio n of this co urt that the ju dgme nt of the trial co urt shou ld be affirm ed.
On May 5, 1997 , the We akley Coun ty Grand Jury re turned a two count
indictment charging the defendant with criminally negligent homicide, a Class E
felony, and rec kless bu rning, a Class A misdemeanor. The indictment alleges these
two offenses were committed on January 11, 1997.
The facts in the record are rather sparse. The defendant was eighteen (18)
years of age and a student at the University of Ten ness ee at M artin. H e resid ed in
a dormitory located on the university’s campus. During the early morning hours of
January 11, 1997, the defendant and a female companion were in the de fenda nt’s
dormitory room. It appears the defendant lit a candle and went to sleep. He was
awakened by the female companion and told there was a fire in the room. He
noticed portions of the dormitory room were on fire. The defendant ordered the
fema le companion to exit the room. He attempted to extinguish the fire but was
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unsu cces sful. He then left his room. A pers on res iding in the dormitory was killed
as a result of the fire.
The defendant sustained burns to his hands, stomach, thigh, and legs. He
also inhaled a considerable amount of smoke. Someone carried him from the
dormitory and took him to the Columbia Volunteer General Hospital. The defendant
arrived in the emergency room at approximately 2:45 A.M. The burns sustained by
the defendant were extremely painful. The pain intensity scale contained in the
medical records has a range of zero to ten. The medical records state the defendant
was suffering the most severe pain, a level of ten. The defendant was given
Demorol for pain an d Phen ergan fo r nause a. Both of these medications have a
sedative effect. The defendant was released from the hos pital the next day, Janu ary
12, 199 7. A phys ician advis ed the d efenda nt to “take re st for one w eek.”
The defendant made three (3) statements to officers from the University of
Tennessee at Martin Police Department and the Tennessee Fire Marshall’s Office.
The first statement was given to Lieutenant Darrell Simmons, an investigator
employed by the University of Tennessee at Martin Police Department, who was
assig ned to investig ate the fire. Lieu tenan t Simm ons w ent to th e Colu mbia
Volunteer General Hospital to determine the status of the individuals injured by the
fire. When he visited the defendant, the defendant was unconscious. He later
returned to interview the defendant at 7:45 A.M. and discovered the defendant was
still unconscious.
Lieutenant Simmons and Johnny Hayes, who was employed by the State of
Tennessee Fire Marshall’s Office as an arson investigator, went to the hospital later
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on the morning of January 11, 1997. The officers attempted to interview the
defendant. Lieutenant Simmons testified the defendant “could talk okay, but he
wasn’t totally clear. He would fade in and fade out.” When asked if the defendant
was able to respond to the questions propounded, Lieutenant Simmo ns stated “to
a degree, he was.” According to Lieutenant Simmons, the defendant would answer
a question, rotate his head, and close his eyes. When asked another question, the
defendant would rotate his head towards Simmons and Hayes, answer the question,
rotate his head, and close his eyes. This statement was not recorded.
On the morn ing of January 13, 1997, a subpoena duces tecum for the
defen dant’s medical records and blood tests was obta ined. The subpoena was
issued without a docket number since no charges had been filed. La ter in the day
on January 13, 1997, Lieutenant Simmons asked the defendant to come to the
Department of Safety building on campus because he wanted to talk to him about
the details of the fire . The d efend ant ap peare d at 2:4 5 P.M . and w as inte rviewe d in
the conferen ce room . The de fendan t’s medic al record s were re leased prior to the
interview. The interview lasted for approximately one hour and fifteen minutes and
the defendant’s statement was tape recorded. During the interview, the defendant
told Simmons and H ayes tha t he had no reco llection of talkin g to them on J anuary
11, 1997.
The following colloquy also took place during the interview:
Defen dant: Am I required to answer these questions?
Hayes: You don’t have to answer them, David. What we are trying to do,
David, is we are--I am sure that by now you know that this is a
very serious matter. I am sure that you know that the guy across
the hall--he didn’t make it through the fire.
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Defen dant: Yeah--w hich I dee ply regret.
Hayes: I understand that, sir. All we are trying to do is that we are trying
to find out what the facts are, David. That’s all we’re doing.
What we are talking to you about in here is confidential. It’s not
going to be in the ne wspa per, on TV, n obod y is goin g to kn ow all
this stuff. My files are strictly confidential. The people who get
my files are my boss es in Nash ville and the District Attorney.
Okay, that’s all. If you were--just “yeah, we were” because at
some point down the road, we may have to ask you to be more
specific but today w e are not going to get into all that, okay?
Defen dant: Yeah.
At the conclusion of the interview, the officers reiterated to the de fenda nt “this
conversation, like we said, is c onfide ntial, between us.” Lieutenant Simmons
arranged for a third interview on January 22, 1997. The following colloquy took
place during Simmon’s direct examination:
Q. Where did this interview take place?
A. In the conferen ce room a t the Departm ent of Safety.
Q. How was it arranged?
A. It was arranged by me.
Q. Wh at did you do to get M r. Bornfrien d there?
A. I asked Mr. Bornfriend could he come back for a follow up interview.
Q. Did he agree to do so?
A. Yes, he did.
****
Q. At the conclusion of the interview, what happened to Mr. Bornfriend;
was he allowed to leave at tha t point?
A. Yes, he was.
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The record does not reflect what the defendant said during the January 22,
1997 inte rview.
The trial court suppressed all three statem ents given by the de fendan t. The
court found that due to the pain medication the defendant was receiving at the
hospital when the first statement was given on January 11, the statement was “not
a voluntary and willing statement.” In regards to the statement given on January 13
at the Public Safety Building, the trial court ruled that the prior issuance of the
subpoena duces tecum constituted the initiation of formal criminal charges and
resulted in the attac hmen t of the defe ndant’s S ixth Amendment right to counsel. The
court suppressed this statement since the defendant was interrogated without
counsel presen t. The trial court also supp resse d the s tatem ent on the ba sis tha t it
was not voluntary due to the officers’ promises of confiden tiality. The trial court
suppressed the statement made on January 22 on th e bas is that th e defe ndan t’s
Sixth Amendment right to counsel had attached and the offic ers’ promise of
confiden tiality had ne ver been revoked .
I. Standard of Review
When an accused is afforded an evidentiary hearing on the m erits of a motion
to suppress, the findings of fact made by the trial court are binding upon the
appellate court unless the evidence contained in the record preponderates against
these findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “Questions of
credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evide nce are matters entruste d to the trial jud ge as the trier of fact.”
Id. Provided that the gre ater we ight of th e evide nce s uppo rts the tria l court’s
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findings, then thos e findings shall be u pheld b y the app ellate cou rt and the party
prevailing in the trial court is entitled to the strongest legitimate view of the evidence
and all rea sonab le inferenc es which may be drawn fro m that e vidence . Id.
This court must now examine each statement given by the defendant and
determine whether the trial court erred in finding they were not voluntary. To
determine voluntarine ss, this cou rt must look at the totality of the circumstances.
Oregon v. Elstad, 470 U.S . 298, 318 , 105 S. C t. 1285, 12 98, 84 L .Ed.2d 22 2, 238
(1985); State v. Crump, 834 S.W .2d 265, 271 (Tenn.), cert. denied, 506 U.S. 905,
113 S. Ct. 298, 121 L. Ed. 2d 221 (1992). This court must also evaluate the last two
statem ents given by the defen dant to determ ine wh ether th e trial co urt erre d in
finding they were obtained in violation of the defen dant’s S ixth Ame ndme nt right to
coun sel.
II. January 11 Statement
A confession mus t be free ly, volun tarily an d kno wingly made or it should be
suppressed beca use it w as ob tained in violation of the d efend ant’s rights under the
Fifth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitu tion. State v. P ritchett, 621 S.W .2d 127, 133 (Tenn. 198 1);
State v. Gentry, 881 S.W.2d 1, 5 (Tenn. Crim. App. 1993). The Fifth Amendment
applies to the states through the Fourtee nth Am endm ent. Malloy v. Hogan, 378 U.S.
1, 84 S. C t. 1489, 12 L. Ed. 2d 653 (19 64); State v. Crump, 834 S.W .2d at 268 .
The test for the vo luntariness of confessions pursuant to Article I, § 9 of the
Tennessee Constitution is broader than the test for voluntariness under the Fifth
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Ame ndme nt. State v. Stephenson, 878 S.W .2d 530 , 544 (T enn. 19 94); State v.
Smith , 834 S.W.2d 915, 9 18-19 (Ten n. 199 2). As o ur sup reme court n oted in
Crump:
The significant difference between these two provisions is that the test of
voluntariness for confessions under Article I, § 9 is broa der and more
protective of individual rights than the test of volun tariness w as und er the Fifth
Ame ndme nt.
834 S.W .2d at 268 ; see State v. S mith, 834 S.W.2d at 915.
The defendant asserts that at the time he gave his first statement to the police
he was so impaired by the medication he was receiving in the hospital that his
statement was no t the product of a free mind and rational intellect. Before an
accused is entitle d to ha ve his statem ent suppressed on the grounds that he was
under the influence of alcohol and/or narcotic drugs, it must be established that the
accu sed’s faculties were so impaired that the statement could not be considered the
product of a “free mind and rational intellect.” Vand ergriff v. State, 409 S.W.2d 370,
373 (Tenn . 1966); State v. Robinson, 622 S.W.2d 62, 67 (Tenn. Crim. App. 1980),
cert. denied, 454 U .S. 1096 , 102 S. C t. 667, 70 L .Ed.2d 6 36 (198 1); see Bram v.
United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897). If it is established
that the accuse d was c apable of giving a n arrative of p ast even ts and/o r relating his
role in the commission of the offense, the statement is generally admissible
notwithstanding the fact that the accused was under the influence of alcohol and/or
narcotics when he made the sta temen t. State v. Green, 613 S.W.2d 229, 232-33
(Tenn. Crim. App. 1980); Duke s v. State, 578 S.W.2d 659, 663 (Tenn. Crim. App.
1978); William s v. State, 491 S.W .2d 862 , 866 (T enn. C rim. App . 1972).
8
In the case sub judice, the defendant was under the influence of the sedatives
Demorol and Phenergan for pain and nausea at the time the officers questioned him.
Lieutenant Simmons admitted that during questioning the defendant “would fade in
and out.” Between questions, the defendant would turn his head away from the
officers and c lose h is eyes. The defendant had no recollection of this conversation
with the officers afterwards.
As the record does not preponderate against the findings of the trial court, we
agree with the trial court’s determina tion to suppress this statemen t as an involuntary
confe ssion made by the defendant while he was under the influence of narcotics.
This issu e has n o merit.
III. January 13 Statement
The trial court suppressed the statement given at the Departmen t of Safety
Building on January 13 on two bases: (1) the statement was obtained in violation
of the de fenda nt’s Sixth Amendment right to counsel and (2) the statement was not
voluntary because it was procured by promises of confidentiality by the investigating
officers. The sta te argues that the statements should not be suppressed since the
defen dant’s Sixth Amendment right to counsel had not attached because adversarial
proceedings had not been initiated against the defen dant. The State of Tennessee
also asserts that the conduct of the officers did not “undermine the accused’s free
will and c ritically impair his capac ity for self-dete rminatio n” sufficien tly to bring about
an involun tary confe ssion.
A.
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A defendant’s Sixth Amendment righ t to cou nsel d oes n ot attac h until
adversarial proceedings have be en initiated . State v. Mitch ell, 593 S.W.2d 280, 286
(Tenn.), cert. denied, 449 U.S . 845, 101 S. Ct. 128, 66 L.Ed .2d 53 (1 980). In
Tennessee, the beginning of the adversarial judicial process is marked by a formal
charge such as an arrest w arran t, indictm ent, pre sentm ent or p relimin ary he aring in
cases where an arrest warrant w as not first ob tained. State v. Mitche ll, 593 S.W.2d
at 286; State v. Butler, 795 S.W .2d 680, 685 (Tenn. Crim . App. 1990 ).
In the present case, Lieutenant Simmons had obtained a subpoena duces
tecum on January 13 for the defendant’s medical records and blood tests. Later that
day the defendant gave his second statement to the police at the Department of
Safety building. The defendant’s medical records were released prior to the
interview.
The defend ant asse rts that the execution of the subpoena duces tecum
constituted the initiation of the adversarial process and the attachment of the
defendant’s Sixth Amendment right to counsel. The defendant states issuance of
the subpoena by the Genera l Sessions Court Clerk and the style of the subpoena
(State of Tennessee v. David Bornfriend) indicate that the adversarial process had
been initiated against the defendant. The trial court suppressed the statement given
on January 13 based upon the determination that the adversarial process against
the defe ndant h ad beg un.
There is no authority in Tennessee to support the proposition that the
issuance of a subpoena duces tecum constitutes the initiation of the a dversaria l
process. A subpoena duces tecum bears greater resemblance to a search warrant
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than an indictment, presentment, or arrest warrant. In fact, the adversarial process
was not initiated against the defendant until a warrant for his arrest was issued on
January 23. Therefore, the defendant’s Sixth Amendment right to counsel had not
attached at the tim e his statem ents were given. The trial court erred in suppressing
the statements given on Jan uary 13 o n the ba sis that the defend ant’s Sixth
Amendment right to counsel had been violated.
B.
The trial court also suppressed the defendant’s statement of January 13 on
the basis tha t the confe ssion wa s not volun tary due to promises of confidentiality by
the investigating officers which had the effect of o verco ming the de fenda nt’s will.
The State of Tennessee asserts that the defendant’s will was not overborne by
promises of confid entiality because those promises were limited to questions relating
to whether the defendant and Sarah Branscumb engaged in sexual activity. The
state also argues th at even if this court finds the s tatements m ade by the officers
were in reference to the entire interview, these statements were not blanket
promises of con fidentia lity but were me rely gu arante es tha t the info rmatio n wou ld
not be revealed to the press.
During the second interview of the defendant, in response to the defendant
asking whethe r he was required to answer these questions, Officer Hayes
responded as follows:
Hayes: You do n’t have to a nswer th em, D avid.
*****
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Hayes: I understand that, sir. All we are trying to do is that we are trying
to find out what the facts are, David. That’s all we’re doing.
What we are talking to you abo ut in he re is con fidentia l. It’s
not going to be in the news paper, on TV, nob ody is going to
know all this stuff. My files ar e strictly co nfiden tial. The
peop le who g et my files are my bosses in Nashville and the
District Attorney. Okay, that’s all. If you were-just “yeah, we
were” because at some point in time down the road, we may
have to ask you to b e mo re spe cific but today we are not going
to get into all that, okay? (em phasis add ed).
At the conclusion of the interview, the officers reiterated to the defendant that “[t]his
conversa tion, like we sa id, is confide ntial, between us.” (emphasis added). The
trial court rea soned that, “[t]he clea r mean ing of the w ord con fidential is tha t it is
confid ential, it will not be used in any public proceeding such as in this courtro om,”
when h e supp ressed the statem ent as invo luntary.
A confession must be “free and voluntary; that is, it must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises,
however slight, nor by the exertion of an y improper influen ce.” Bram v. United
States, 168 U.S. 532, 542-43, 18 S. C t. 183, 186 , 42 L.Ed . 568 (18 97); State v.
Kelly, 603 S.W.2d 726, 727 (Tenn. 1980). “The Fifth Amendment does not condemn
all promise-ind uced adm issions and co nfessions; it cond emns o nly those which are
compelled by promises of leniency.” Kelly, 603 S.W .2d at 729 (quoting Hunter v.
Swenson, 372 F. Supp. 287, 300-01 (D.C.Mo. 1974)). The test for voluntariness in
relation to police deception is whether based upon the totality of the circumstances,
“the cond uct of th e law e nforce men t officers was s uch to unde rmine the ac cuse d’s
free will and critically impair his capacity for self-determination so as to bring about
an involuntary confession.” Crump, 834 S.W.2d at 271 (citing Culomb e v.
Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037, 1057-58
(1961); State v. Kelly, 603 S.W .2d at 728).
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The promise of confidentiality occurred during the preliminary portion of
defen dant’s statem ent to the police . The trial court implicitly found that following the
promise of confidentiality, defendant made his statements in reliance upon the
officers’ promise. This is apparently a case of first impression on this precise issue,
and other jurisdictions have determined that a promise of confidentiality by a law
enforcement officer rend ers an o therwise voluntary s tateme nt involunta ry. State
v. McDe rmott, 131 N.H . 495, 554 A.2d 13 02 (198 9); State v. Nash, 228 Neb. 69, 421
N.W.2d 41 (1988); Unite d State s v. W olf, 601 F.Su pp. 435, 441 -53 (N.D.Ill. 1984).
After hearing the evidence, the trial court determined that defendant’s statement of
January 13 was involuntary bas ed upon th e officers’ promise of confidentiality.
Absent evidence preponderating against the findings of the trial court, the findings
of fact of the trial court on a motion to suppress are binding. From our review of the
record and the law, we co ncur tha t the officer’s p romise of confide ntiality in the case
sub judice operated to deprive Defendant of his free will and was not, therefore,
voluntary u nder the totality of the circ umsta nces. This issu e is withou t merit.
IV. January 22 Statement
The trial court also suppressed a statement given by the defendant on
January 22 on the basis that the confession was obtained in violation of the
defen dant’s Sixth Amendment right to cou nsel. The statement was also suppressed
as an involuntary confession induced by the earlier promises of confidentiality which
had not been revoked. The S tate of Te nness ee ass erts that the defend ant’s Sixth
Amendment right to counsel had not attached and the prior confession was not
illegally obtained.
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The defendant returned to the Safety Building located on the University of
Tennessee at Martin campus on January 22 after the investigators called the
defendant in for a follow-up interview. This interview was not rec orded and th ere is
no transcript of this mee ting in the record. The re cord indicates that the smoke
detector in the defendant’s room was discussed.
As to the first basis relied upon by the trial court in su ppress ing the sta temen t,
we have already ruled in this opinion that the defendant’s statement of January 13
did not violate th e defen dant’s S ixth Amen dment right to co unsel. W e have found
that the ad versa rial proc ess a gains t the de fenda nt was not initia ted until an arrest
warrant was issued o n Janu ary 23. Therefore, his Sixth Amendment right to counsel
had not attached when the January 22 statement was given.
In suppressing the January 22 statement on the basis that the earlier promises
of confidentiality had not been revoked and that the January 2 2 statement was
therefore involuntary, the trial court relied upon our su prem e cou rt’s decision in State
v. Smith , 834 S.W.2d 915, 919 (Tenn. 1992). In Smith , the supreme court held that
the provisions of Article I, Section 9 of the Tennessee Constitution necessitate that
the extraction of an illegal, unwarned confession from a defendant raises a
rebutta ble presumption that a subsequent confession is tainted by the initial illegality.
Howeve r, if the State can establish that the tain t “is so attenu ated as to justify
admission of the subsequent confession,” then the presumption may be overcome.
Id., quoting Oregon v. Elstad, 470 U.S. 298, 335, 105 S. Ct. 1285, 1306-07, 84
L. Ed. 2d 222 (19 85). As noted previously in this opinion, the record is rather sparse
concerning the Janu ary 22 sta temen t of defend ant. State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996), mandates that the findings of fact ma de by the trial court are
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binding upon the ap pellate court unles s the evidence contained in the record
preponderates against those findings. Unfortunately for the State, the facts
contained in the record do not preponderate against the findings of the tria l court in
this case. Therefore, the trial court’s judgment that the Janu ary 22 statem ent sh ould
be suppressed must be affirmed.
V. Conclusion
This court concludes that the de fenda nt’s Sixth Amendment right to counsel
did not attach until an arrest warrant was issued against him on January 23.
Therefore, the trial court erred by u sing as a basis to su ppress the statem ents that
defen dant’s Sixth Amendment rights had been violated. However, the trial court was
correct in suppressing the January 11 statement upon finding that the statement was
not a product of a free mind and rational intellect and was therefore involuntary.
Furthermore, the trial court was correct in its conclusion that the January 13 and
January 22 statements should be suppressed because they were involuntary as a
result of the State’s promises of confidentiality. Accordingly, the judgment of the trial
court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
(Not participating)*
JOE B. JONES, Presiding Judge
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___________________________________
JOHN H. PEAY, Judge
*Jud ge Jo e B. J one s died May 1 , 199 8, an d did n ot pa rticipa te in this o pinion . W e ack now ledge his faithful
service to this Court, both as a member of the Court and as its Presiding Judge.
16