State of Tennessee v. Lindsey Brooke Lowe

07/20/2018
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
September 6, 2017 Session Heard at Knoxville1
STATE OF TENNESSEE V. LINDSEY BROOKE LOWE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Sumner County
No. 2011CR834 Dee David Gay, Judge
No. M2014-00472-SC-R11-CD
A jury convicted the Defendant, Lindsey Brooke Lowe, of two counts of first degree
premeditated murder, two counts of first degree felony murder, and two counts of
aggravated child abuse, all arising from the Defendant’s smothering to death her newborn
infant twins. The trial court merged the alternative counts of first degree murder as to
each victim and sentenced the Defendant to two terms of life imprisonment for the
murders and two terms of twenty-five years for the aggravated child abuse convictions,
all to be served concurrently. On direct appeal, the Court of Criminal Appeals affirmed
the Defendant’s convictions and sentences. We granted the Defendant’s application for
permission to appeal in order to address the following issues raised by the Defendant: (1)
whether the Exclusionary Rule Reform Act, codified at Tennessee Code Annotated
section 40-6-108 (“the ERRA”), violates the Tennessee Constitution’s Separation of
Powers Clause; (2) whether the trial court erred by relying on the ERRA to deny the
Defendant’s motion to suppress the evidence gathered at her house pursuant to a search
warrant that did not conform with the technical requirements of Tennessee Rule of
Criminal Procedure 41; (3) whether the trial court erred by ruling inadmissible certain
expert testimony proffered by the defense during the hearing on the Defendant’s motion
to suppress her statement to Detective Malach; (4) whether the trial court erred by
denying the Defendant’s motion to suppress her statement; and (5) whether the trial court
erred by prohibiting the Defendant’s expert witness from testifying at trial about the
reliability of her responses to Detective Malach’s questions. We also directed the parties
to address the additional issue of whether the good-faith exception to the exclusionary
rule adopted by this Court in State v. Davidson, 509 S.W.3d 156, 185-86 (Tenn. 2016),
should be expanded to include clerical errors made by the issuing magistrate when the
search in question is otherwise constitutional. We hold that the ERRA represents an
impermissible encroachment by the legislature upon this Court’s authority and
1
We heard oral argument in this case at the University of Tennessee College of Law.
responsibility to adopt exceptions to the exclusionary rule and, therefore, violates the
Tennessee Constitution’s Separation of Powers Clause; that the exclusionary rule should
not be applied to suppress evidence gathered pursuant to a search warrant that is
technically defective under Rule 41 due to the magistrate’s simple and good-faith clerical
error of incorrectly indicating on one of three copies of the warrant that it was issued at
11:35 “PM” while correctly indicating on the other two copies that it was issued at 11:35
“AM”; that the trial court did not err in ruling inadmissible the defense expert’s testimony
at the hearing on the Defendant’s motion to suppress her statement, although the trial
court should have allowed defense counsel to proffer the testimony in a question and
answer format; that the trial court did not err in ruling that the Defendant was not in
custody at the time she made her statement to Detective Malach, rendering moot any
claimed defects in the administration of Miranda warnings prior to her statement being
made; and that the trial court did not commit reversible error in ruling inadmissible at
trial certain proffered expert testimony by a defense witness. In sum, we affirm the
Defendant’s convictions and sentences.
Tenn. R. App. P. 11 Appeal by Permission;
Judgment of the Court of Criminal Appeals Affirmed
JEFFREY S. BIVINS, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,
SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
David L. Raybin (on appeal), Nashville, Tennessee; John Pellegrin (at trial and on
appeal) and James Ramsey (at trial), Gallatin, Tennessee, for the appellant, Lindsey
Brooke Lowe.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Leslie E. Price, Senior Counsel; Lawrence Ray Whitley, District Attorney
General; and C. Ronald Blanton, Assistant District Attorney General, for the appellee, the
State of Tennessee.
Jonathan Harwell, Knoxville, Tennessee, and Richard L. Tennent, Nashville, Tennessee,
for amicus curiae, Tennessee Association of Criminal Defense Lawyers.
OPINION
Factual and Procedural Background
In September 2011, the Defendant was twenty-five years old, had graduated from
college, and was engaged to be married. She was employed in the office of a dental
practice and was living with her parents, Mark and Paula Lowe, and her younger sister,
Lacey, in the Lowes’ home. The Defendant’s bedroom was upstairs, as was Lacey’s, and
the two sisters shared a bathroom.
2
In late December 2010 or early January 2011, the Defendant became pregnant
with twins by a man not her fiancé. The Defendant concealed her pregnancy. During the
night of Monday, September 12, 2011, the Defendant gave birth to twin boys, unassisted,
in the bathroom she shared with her sister. The Defendant concealed the births from her
family members and cleaned up the bathroom before her sister used it on the morning of
the 13th. The Defendant texted her supervisor on the morning of the 13th and stated that
she would not be into the office that day due to illness. One day later, on Wednesday,
September 14, 2011, the Defendant reported to work as usual.
That same morning, after the Defendant left for work, the Defendant’s mother
discovered one of the infant boys in a laundry basket in the Defendant’s bedroom. Mr.
Lowe contacted the police. Several police officers and emergency medical personnel
arrived and determined that the boy was dead.
A “death investigation” ensued. Detective Steve Malach, after briefly viewing the
boy’s body, departed the Lowes’ house to go to the Defendant’s workplace. Although
Mr. Lowe reportedly consented to the police officers’ searching his house, the police
began the process of obtaining a search warrant for the Lowe residence. After obtaining
the warrant late in the morning on the 14th, the police obtained numerous items from the
Lowe residence.
In the meantime, Detective Malach drove to the dental practice where the
Defendant was employed and, after introducing himself, was taken to meet the
Defendant. Detective Malach spoke briefly to the Defendant at her workplace and then
requested that she come to the police department to be interviewed. The Defendant
agreed, and she accompanied Detective Malach in Detective Malach’s car to police
headquarters. During the ensuing interview, the Defendant explained that she had given
birth to not just one, but actually two infants. Upon learning this information, Detective
Malach immediately paused the interview so that he could alert the officers still at the
Lowe residence about the existence of another infant. Subsequently, officers found a
second deceased boy at the bottom of the same laundry basket.
In response to Detective Malach’s questions about how the boys died, the
Defendant explained that she had placed her hand over each one’s mouth in order to stifle
his cries. She acknowledged that, by doing so, she smothered each boy to death. She
later placed their bodies, as well as the single placenta, in her laundry basket. She then
proceeded to clean up the bathroom. She stayed home on Tuesday, September 13, 2011,
in order to recover from the deliveries. At no time during these events did the Defendant
inform any family member as to what had happened nor did she call for medical
assistance.
After Detective Malach completed interviewing the Defendant, he arranged for the
Defendant to be taken to the hospital to be checked for complications following her
3
deliveries. The Defendant later was arrested at the hospital and subsequently indicted for
two counts of first degree premeditated murder, two counts of first degree felony murder
in the perpetration of aggravated child abuse, and two counts of aggravated child abuse.2
Prior to trial, the Defendant moved to suppress (1) her statement to Detective
Malach and (2) the evidence obtained pursuant to the search warrant. After evidentiary
hearings, the trial court denied both motions, and the matter proceeded to a jury trial.
The jury convicted the Defendant as charged. The trial court merged the two first degree
murder convictions as to each child and sentenced the Defendant to life imprisonment for
each murder conviction. The trial court subsequently sentenced the Defendant to twenty-
five years’ imprisonment for each of the aggravated child abuse convictions, and ordered
all of the sentences to be served concurrently. On direct appeal, the Court of Criminal
Appeals affirmed the trial court’s judgments. State v. Lowe, No. M2014-00472-CCA-
R3-CD, 2016 WL 4909455, at *48 (Tenn. Crim. App. July 12, 2016), perm. appeal
granted (Tenn. Jan. 18, 2017).
We granted the Defendant’s application for permission to appeal in order to
address the following issues: (1) whether the Exclusionary Rule Reform Act, codified at
Tennessee Code Annotated section 40-6-108 (“the ERRA”), violates the Tennessee
Constitution’s Separation of Powers Clause; (2) whether the trial court erred by relying
on the ERRA to deny the Defendant’s motion to suppress the evidence gathered at her
house pursuant to a search warrant that did not conform with the technical requirements
of Tennessee Rule of Criminal Procedure 41; (3) whether the trial court erred by ruling
inadmissible certain expert testimony proffered by the defense during the hearing on the
Defendant’s motion to suppress her statement to Detective Malach; (4) whether the trial
court erred by denying the Defendant’s motion to suppress her statement; and (5) whether
the trial court erred by prohibiting the Defendant’s expert witness from testifying at trial
about the reliability of her responses to Detective Malach’s questions. We also directed
the parties to address whether the good-faith exception to the exclusionary rule that this
Court adopted in Davidson, 509 S.W.3d at 185-86, should be expanded to include clerical
errors made by the magistrate issuing a search warrant when the search in question is
otherwise constitutional.
2
Because we are not addressing the sufficiency of the evidence in this appeal, we have
kept our summation of the gruesome facts in this case very brief. The Court of Criminal
Appeals’ opinion in this matter contains a thorough review of the facts adduced at trial. See
State v. Lowe, No. M2014-00472-CCA-R3-CD, 2016 WL 4909455, at *1-12 (Tenn. Crim. App.
July 12, 2016), perm. appeal granted (Tenn. Jan. 18, 2017).
4
Analysis
Search of Defendant’s House
Prior to trial, the Defendant moved to suppress the evidence obtained from her
house pursuant to a search warrant. At the hearing on the motion to suppress, the proof
established that, at approximately 9:10 a.m. on September 14, 2011, Detective David
Harrell was instructed to obtain a search warrant for the Lowe residence. He prepared the
necessary paperwork, including three copies of the proposed search warrant, and
appeared before Judge C. J. Rogers at the Circuit Court in Sumner County. At 11:35 a.m.
on September 14, 2011, Judge Rogers signed and issued the search warrant in triplicate.
However, on the line providing the date and time at which the warrant was delivered to
Detective Harrell for execution, Judge Rogers indicated “11:35 o’clock AM, on this 14
day of Sept, 2011” on two of the copies and “11:35 o’clock PM, on this 14 day of Sept,
2011” on the third copy. Judge Rogers testified at the hearing and described the AM/PM
discrepancy as a “clerical error” on his part.3
After obtaining the warrant, Detective Harrell returned to the Lowe residence and
executed it, beginning at approximately 12:34 p.m. on September 14, 2011. Pursuant to
the warrant, he collected a laundry basket and its contents; bloody linens and clothing; a
thumb drive from the Defendant’s bedroom; and several computers and computer
components. The police also took photographs and conducted testing for the presence of
blood in the Defendant’s bedroom and bathroom. When the search was finished,
Detective Harrell left one of the copies of the warrant marked “AM” on the kitchen
counter. The copy of the warrant bearing the “PM” notation was returned and filed with
the trial court on September 21, 2011.
The Defendant contended that the evidence collected pursuant to the search
warrant must be suppressed because, contrary to the requirements of Tennessee Rule of
Criminal Procedure 41, the three copies of the search warrant were not exact replicas
because two of them indicated that the warrant was issued in the morning, and one of
them indicated that the warrant was issued in the evening.
The trial court denied the Defendant’s motion to suppress the evidence recovered
upon execution of the search warrant. The trial court acknowledged that the warrant did
3
At the hearing, Judge Rogers requested to see “all three originals” of the search warrant.
He explained that, while he was being shown “some copies,” he “need[ed] the originals” because
he could not “ever work off of a copy.” The trial court then stated on the record, “There’s the
three originals,” whereupon Judge Rogers testified, “The original that the officer has and my
original are A.M. I don’t know about this one that shows up P.M. If I wrote P.M., which I
obviously did, my mistake.” The State’s brief, which indicates that two of the iterations of the
warrant indicated “P.M.,” is incorrect.
5
not comply with Tennessee Rule of Criminal Procedure 41(d) because there was a
discrepancy between the three iterations of the warrant. See Tenn. R. Crim. P. 41(d)
(2011) (requiring the magistrate to “prepare an original and two exact copies of each
search warrant” (emphasis added)). The trial court also acknowledged that Rule 41
required suppression of the evidence gathered pursuant to the warrant because of the
discrepancy. See Tenn. R. Crim. P. 41(g)(5)(A) (requiring trial court to grant a motion to
suppress if “the magistrate did not . . . make an original and two copies of the search
warrant”). Nevertheless, the trial court ruled that the evidence obtained pursuant to the
warrant should not be suppressed on the basis of the ERRA, which provides as follows:
(a) Notwithstanding any law to the contrary, any evidence that is seized as a
result of executing a search warrant issued pursuant to . . . Tennessee Rules
of Criminal Procedure Rule 41 that is otherwise admissible in a criminal
proceeding and not in violation of the constitution of the United States or
Tennessee shall not be suppressed as a result of any violation of . . .
Tennessee Rules of Criminal Procedure Rule 41 if the court determines that
such violation was a result of a good faith mistake or technical violation
made by a law enforcement officer, court official, or the issuing magistrate
as defined in subsection (c).
....
(c) As used in this section, unless the context otherwise requires, “good
faith mistake or technical violation” means:
(1) An unintentional clerical error or clerical omission made by a law
enforcement officer, court official or issuing magistrate in the form,
preparation, issuance, filing and handling of copies, or return and inventory
of a search warrant[.]
Tenn. Code Ann. § 40-6-108 (Supp. 2011).
Relying on this statute, the trial court ruled as follows:
I find specifically that, although there is a violation of Rule 41(d),
that the magistrate did not prepare an original and two exact copies of the
warrant, that this violation was the result of a good faith mistake or
technical violation made by the issuing judge, that this error was an
unintentional clerical error made by the issuing judge that had absolutely no
effect on . . . the constitutionality of this warrant. Therefore, . . . I find that
[the ERRA] applies and there is good faith here, and I uphold the validity
based on this statute . . . . Therefore, the warrant will be upheld. The
6
evidence taken from the search warrant will be admitted into evidence and
the motion to suppress is respectfully denied.
Before this Court, the Defendant argues “that in enacting the Exclusionary Rule
Reform Act the Tennessee legislature invaded the province of the judicial branch, as
prohibited by the separation of powers doctrine of the Tennessee Constitution, that no
‘good faith’ exception exists to salvage the defective warrants, and thus the evidence
secured by the warrants should have been suppressed.” The State disagrees.
Standard of Review
Because issues of constitutional and statutory construction are questions of law,
we review them de novo with no presumption of correctness accorded to the legal
conclusions of the courts below. See Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009);
State v. Walls, 62 S.W.3d 119, 121 (Tenn. 2001).
Tennessee’s Exclusionary Rule
We begin our analysis of this issue with a brief historical review. This Court first
applied the exclusionary rule to evidence obtained pursuant to a defective search warrant
in 1923. See Hampton v. State, 252 S.W. 1007 (Tenn. 1923). Referring to both the
Tennessee Constitution’s prohibition against unreasonable searches4 and several statutes
detailing the procedures to be followed in obtaining a search warrant,5 this Court
recognized that
4
The Tennessee Constitution provides
[t]hat the people shall be secure in their persons, houses, papers and possessions,
from unreasonable searches and seizures; and that general warrants, whereby an
officer may be commanded to search suspected places, without evidence of the
fact committed, or to seize any person or persons not named, whose offences are
not particularly described and supported by evidence, are dangerous to liberty and
ought not to be granted.
Tenn. Const. art. 1, § 7.
5
As quoted in Hampton, these statutes provided as follows:
7297. No search warrant can be issued but upon probable cause, supported by
affidavit naming or describing the person, and particularly describing the property
and place to be searched.
7
[t]here is no writ more calculated to be abused in its use than the search
warrant, for with it any home may be entered and the inmates disturbed,
humiliated, and degraded. To prevent such a possibility from false
informants made to officers inspired by overzeal, or acting from
expediency, or obeying the command uttered by a mob impulse, the
provisions of the Constitution and statutes found force and command
observance.
....
It is uniformly held that the search warrant must conform to both the
constitutional and statutory requirements.
The requirements of the Constitution and the statutes we have
quoted are not difficult. It would be easy to comply with them, and
compliance would result in protecting the innocent from unlawful search,
and authorize the use of evidence obtained through lawful search against
the guilty.
Id. at 1008 (citations omitted).
Because this Court determined that the affidavit and warrant at issue contained
deficiencies that it attributed to the “carelessness” or “oversight” of the magistrate issuing
the warrant, id., it held that “evidence of the offense discovered by means of the illegal
search warrant was not admissible, and should have been excluded,” id. at 1009. This
Court reasoned that, “‘where the action of the governmental authorities is unlawful and
violative of the constitutional rights of the citizen, . . . the government cannot rely upon
7298. The magistrate shall, before issuing the warrant, examine on oath the
complainant and any witness he may produce, and take their affidavits in writing,
and cause them to be subscribed by the persons making them.
7299. The affidavit shall set forth the facts tending to establish the grounds of the
application, or probable cause for believing they exist.
7300. If the magistrate is satisfied of the existence of the grounds of the
application, or that there is probable cause to believe their existence, he shall issue
a search warrant, signed by him, to any lawful officer, commanding him forthwith
to search the person or place named for the property specified, and to bring it
before him.
Hampton, 252 S.W. at 1008 (quoting Shannon’s Code sections 7297-7300). These statutes make
no reference to the exclusion of evidence for failure to meet their requirements.
8
the evidence thus unlawfully obtained by its agents.’” Id. at 1009 (quoting Hughes v.
State, 238 S.W. 588, 591 (Tenn. 1922)).
This Court has more recently described our exclusionary rule as “a judicially
crafted remedy,” State v. Reynolds, 504 S.W.3d 283, 314 (Tenn. 2016), whose purpose is
“to deter police misconduct,” id. at 312. Because the exclusionary rule originated with
this Court, “this Court has both the authority and the responsibility to decide whether [a]
good-faith exception, or any other exception, should be adopted.” Id. at 314.
In 1959, the Tennessee General Assembly enacted a statute that both added
specific requirements as to the form of warrants and incorporated implicitly an aspect of
this Court’s exclusionary rule:
SECTION 1. Be it enacted by the General Assembly of the State of
Tennessee, That all magistrates, clerks of courts, judges and any other
person or persons whomsoever issuing search warrants shall prepare an
original and two exact copies of same, one of which shall be kept by him as
a part of his official records, and one of which shall be left with the person
or persons on whom said warrant is served. The original search warrants
shall be served and returned as provided by law. The person or persons as
aforesaid who issue said warrants shall endorse the warrants showing the
hour, date, and the name of the officer to whom the warrants were delivered
for execution, and the exact copy of such warrant and the endorsement
thereon, shall be admissible in evidence in the Courts.
SECTION 2. Be it further enacted, That failure to comply with
Section 1 hereof shall make any search conducted under said warrant an
illegal search and seizure.
1959 Tenn. Pub. Acts, ch. 241 (codified at Tenn. Code Ann. § 40-518) (“the 1959
Statute”).
In 1961, this Court considered the impact of the 1959 Statute on the admissibility
of evidence obtained pursuant to a search warrant described as
contain[ing] no endorsement made on it by the justice [of the peace]
“showing the hour, the date, and the name of the officer to whom the
warrant was delivered for execution.” Nor does it appear that the justice
otherwise complied with the provisions of the statute requiring him to make
two copies of the warrant, one to be kept as his official record and the other
to be left with the person on whom the warrant was served.
9
Talley v. State, 345 S.W.2d 867, 869 (Tenn. 1961). Holding that the search warrant was
“void” due to its failure to comply with the 1959 Statute, id., this Court reasoned:
This statute was within the constitutional power of the Legislature, and it
seems a reasonable and valid legislative declaration designed to supplement
the provisions of our Constitution and of our statutes protecting citizens
against unreasonable searches and seizures. Its intent no doubt was to
secure the citizen against carelessness and abuse in the issuance and
execution of search warrants.
....
It appears the legislative intent was to secure strict compliance with the
requirements of section 1 of the Act; for section 2 provided that failure of
such compliance “shall make any search conducted under said warrant an
illegal search and seizure.” Words could not be plainer, and they are
mandatory.
Id. (internal citations omitted). Thus, this Court construed the 1959 Statute as congruent
with its decades-earlier creation and application of the exclusionary rule.
In 1979, the Tennessee General Assembly repealed the 1959 Statute because it had
been replaced by a Rule of Criminal Procedure. See 1979 Tenn. Pub. Acts, ch. 399
(noting that “the Tennessee Supreme Court, after lengthy study by the court-appointed
Rules Commission, adopted certain rules, known as the Tennessee Rules of Criminal
Procedure, in order to modernize and clarify procedures in criminal cases and to provide
for the fair and efficient conduct of such proceedings”). The Rule of Criminal Procedure
that took the place of the 1959 Statute was Rule 41. See, e.g., State v. Coffee, 54 S.W.3d
231, 233 n.1 (Tenn. 2001) (noting that, “[w]hen Talley was decided, the requirements
now found in Rule 41(c) were codified at Tenn. Code Ann. § 40-518 (1959)”); State v.
Steele, 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994) (noting that the provisions of
Tennessee Rule of Criminal Procedure 41 derived from the 1959 Statute); State v.
Lindsey, 1985 WL 3715, at *1-2 (Tenn. Crim. App. Nov. 20, 1985) (after reciting the text
of Tennessee Rule of Criminal Procedure 41(c) with regard to a search warrant issued in
1984, noting that the tenets of the 1959 Statute were “essentially the same as Tenn. R.
Crim. P. 41(c)”), perm. appeal denied (Tenn. Mar. 3, 1986). The original Rule 41
provided, in relevant part, as follows:
(c) Issuance [of Search Warrant]; Contents; Copies; Failure to
Comply. . . . The magistrate shall prepare an original and two exact copies
of the search warrant, one of which shall be kept by him as a part of his
official records, and one of which shall be left with [the] person or persons
on whom the search warrant is served. The magistrate shall endorse upon
10
the search warrant the hour, date, and name of the officer to whom the
warrant was delivered for execution; and the exact copy of the search
warrant and the endorsement thereon shall be admissible evidence. Failure
of the magistrate to make said original and two copies of the search
warrant or failure to endorse thereon the date and time of issuance and the
name of the officer to whom issued, or the failure of the serving officer
where possible to leave a copy with the person or persons on whom the
search warrant is being served, shall make any search conducted under said
search warrant an illegal search and any seizure thereunder an illegal
seizure.
....
(f) Motion for Return or Suppression of Property. A person aggrieved
by an unlawful or invalid search or seizure may move the court pursuant to
Rule 12(b) to suppress any evidence obtained in such unlawful search or
seizure. If property was unlawfully seized, he may move for the return of
the property; and the motion shall be granted, except as to the return of
contraband, if the evidence in support of the motion shows that:
....
(2) a search warrant was relied upon, but the search warrant or
supporting affidavit is legally insufficient on its face and hence invalid[.]
Tenn. R. Crim. P. 41 (1978) (emphases added).6
Since the adoption of Rule 41, this Court has strictly construed the Rule’s
provisions consistently with its 1961 holding in Talley. For instance, in Coffee, the
defendant sought to suppress evidence on the basis that the judicial commissioner who
had issued the search warrant “‘failed to keep an exact copy of the original of said search
warrant as part of his official records as required by Rule 41(c).’” 54 S.W.3d at 232
(quoting defendant’s motion to suppress). Characterizing the provision at issue as one of
the “specific procedural safeguards” set forth in Rule 41, this Court held as follows:
These procedural safeguards are intended “to secure the citizen
against carelessness and abuse in the issuance and execution of search
warrants.” Talley v. State, 208 Tenn. 275, 345 S.W.2d 867, 869 (1961). . . .
6
Effective July 1, 2018, Rule 41 has been amended in order to provide trial courts the
discretion to determine whether to exclude evidence that was gathered pursuant to a search
warrant that meets constitutional requirements but is noncompliant with Rule 41’s technical
requirements. See 2018 Tenn. Ct. Order 0002, No. ADM2017-01892 (Tenn. 2018).
11
The provision at issue, that a magistrate prepare and retain a copy of the
search warrant, endeavors to prevent improper searches and facilitate
judicial review of whether a search was executed within the scope of the
warrant. The rule achieves its goals in that a written record of the specifics
of the search stifles the ever-present temptation for an officer to conduct a
search and justify it later. Additionally, the copy of the warrant enables
review of the original boundaries of a search; without an exact copy of the
warrant, review is compromised because the critical facts and details of the
warrant cannot be precisely determined. It is for these reasons that it is
important to retain an exact copy of the warrant identifying the property or
person to be searched, and it is for these same reasons that this requirement
has been strictly enforced by our courts for many years. See Talley, 345
S.W.2d at 868; State v. Brewer, 989 S.W.2d 349, 353-54 (Tenn. Crim. App.
1997); State v. Steele, 894 S.W.2d 318, 319 (Tenn. Crim. App. 1994).
As stated in Talley, “‘Words could not be plainer, and [the
procedural safeguards against abuse] are mandatory.’” 345 S.W.2d at 869
(citation omitted). Accordingly, the judicial commissioner’s failure to
make and retain a copy of the search warrant so that a record of the precise
limits of the search could be maintained requires suppression of the
evidence seized.
Coffee, 54 S.W.3d at 233-34 (footnotes omitted) (brackets in Coffee).
Similarly, in State v. Bobadilla, this Court considered the efficacy of a search
warrant that “did not contain an endorsement of the hour of its issuance, as required by
Rule 41(c).” 181 S.W.3d 641, 645 (Tenn. 2005). This Court held that, “[b]ecause the
hour was not endorsed by the magistrate on the search warrant in this case, the warrant
fails to explicitly show that it was issued first—then executed. Therefore, the search
warrant fails to meet the requirements as set forth in Tennessee Rule of Criminal
Procedure 41(c).” Id. Accordingly, this Court concluded that “the search warrant on its
face did not meet the requirements of Tennessee Rule of Criminal Procedure 41(c).
Therefore, the warrant was invalid, the search was illegal, and the evidence obtained
thereby inadmissible.” Id.
At the time the search warrant in this case was issued, Tennessee Rule of Criminal
Procedure 41(c) provided, in pertinent part, as follows:
(1) Issuance. — A warrant shall issue only on an affidavit or affidavits
that are sworn before the magistrate and establish the grounds for
issuing the warrant.
12
(2) Content. — If the magistrate is satisfied that there is probable cause
to believe that grounds for the application exist, the magistrate shall
issue a warrant as follows:
(A) The warrant shall, as the case may be, identify the property or place
to be searched, or name or describe the person to be searched; the
warrant also shall name or describe the property or person to be
seized.
(B) The search warrant shall command the law enforcement officer to
search promptly the person or place named and to seize the specified
property or person.
(C) The search warrant shall be directed to and served by:
(i) the sheriff or any deputy sheriff of the county where the warrant
is issued; or
(ii) any constable or any other law enforcement officer with
authority in the county.
(D) The magistrate shall endorse on the search warrant the hour, date,
and name of the officer to whom the warrant was delivered for
execution.
Tenn. R. Crim. P. 41(c) (2011) (emphasis added). Additionally, subsection (d) of Rule
41 provided that “[t]he magistrate shall prepare an original and two exact copies of each
search warrant. The magistrate shall keep one copy as a part of his or her official
records. The other copy shall be left with the person or persons on whom the search
warrant is served.” Tenn. R. Crim. P. 41(d) (emphasis added). Further, Rule 41 provided
that a motion to suppress evidence obtained pursuant to a search warrant “shall be
granted” if “the magistrate did not . . . make an original and two copies of the search
warrant.” Tenn. R. Crim. P. 41(g)(5)(A).
In State v. Hayes, 337 S.W.3d 235 (Tenn. Crim. App. 2010), our Court of
Criminal Appeals considered a search warrant that suffered from the same irregularity
that is present in the instant case. The detective who prepared the warrant made two
copies and presented all three documents to the trial judge. Id. at 251-52. The judge
signed and dated all three documents. Id. One of the copies indicated that it was issued
on September 12, 2005, at 10:35 a.m.; the original and remaining copy indicated that the
warrant was issued on September 12, 2005, at 10:35 p.m. Id. at 252. The warrant was
executed during the early afternoon of September 12, 2005. Id. Proof at the suppression
hearing established that the judge had actually issued the warrant in the morning and had
13
committed a clerical error when he indicated “p.m.” on two of the copies of the warrant.
Id.
Relying on this Court’s rulings in Coffee and Bobadilla, our intermediate appellate
court reasoned that, “[l]ogically, in order to ensure that the warrant is first issued, then
executed, not only must the time be endorsed, but the accurate time must be endorsed.”
Id. at 254. “Accordingly,” the Court of Criminal Appeals held, “the requirement that the
date and time of issuance shall be endorsed implicitly means that the correct date and
time shall be endorsed. Thus, the search warrant in this case failed to comply with the
requirements of Rule 41 and the motion to suppress must be granted.” Id. at 256.
Following these decisions, the General Assembly promulgated the ERRA in 2011.
There is no dispute that the ERRA was in effect at the time the subject search warrant
was issued. As set forth above, the ERRA dictates that certain evidence otherwise
subject to Tennessee’s exclusionary rule “shall not be suppressed.” Tenn. Code Ann. §
40-6-108(a). Because the ERRA specifically conflicts with this Court’s holdings
regarding our exclusionary rule, as well as with the express language of a procedural rule
promulgated by this Court, we turn now to an examination of whether this statute
unconstitutionally violates the Separation of Powers Clause of the Tennessee
Constitution.
Separation of Powers
Article II, section 1 of the Tennessee Constitution provides that “The powers of
the Government shall be divided into three distinct departments: the Legislative,
Executive, and Judicial.” Section 2 of the same Article provides: “Limitation of powers.
No person or persons belonging to one of these departments [set forth] shall exercise any
of the powers properly belonging to either of the others, except in the cases herein
directed or permitted.” With respect to the judicial department, the Tennessee
Constitution specifies that “the judicial power of this State shall be vested in one
Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature
shall from time to time, ordain and establish; in the Judges thereof, and in Justices of the
Peace.” Tenn. Const. art. VI, § 1. The Tennessee Supreme Court is a “direct creature of
the Constitution” and “constitutes the supreme judicial tribunal of the [S]tate.” Barger v.
Brock, 535 S.W.2d 337, 340 (Tenn. 1976). The Tennessee Supreme Court “and its
jurisdiction cannot be interfered with by the other branches of the government. Its
adjudications are final and conclusive upon all questions determined by it, save those
reserved to the federal courts, which may be reviewed by the Supreme Court of the
United States.” Clements v. Roberts, 231 S.W. 902, 902 (Tenn. 1921) (emphasis added)
(citing Miller v. Conlee, 37 Tenn. 432, 433 (1858); Dodds v. Duncan, 80 Tenn. 731, 734
(1884); State, to Use of Fletcher v. Gannaway, 84 Tenn. 124, 126 (1885)).
14
This Court has recognized that it, and it alone, “has the inherent power to
promulgate rules governing the practice and procedure of the courts of this state,” State v.
Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001), and that “this inherent power ‘exists by
virtue of the establishment of a Court and not by largess of the legislature,’” id. at 481
(quoting Haynes v. McKenzie Mem’l Hosp., 667 S.W.2d 497, 498 (Tenn. Ct. App.
1984)). Moreover,
because the power to control the practice and procedure of the courts is
inherent in the judiciary and necessary “to engage in the complete
performance of the judicial function,” this power cannot be constitutionally
exercised by any other branch of government. In this area, “[t]he court is
supreme in fact as well as in name.”
Id. (quoting Anderson Cnty. Q. Ct. v. JJ. of 28th Jud. Cir., 579 S.W.2d 875, 877 (Tenn.
Ct. App. 1978); Barger, 535 S.W.2d at 341) (citations omitted).
We continued in Mallard:
Notwithstanding the constitutional limits of legislative power in this
regard, the courts of this state have, from time to time, consented to the
application of procedural or evidentiary rules promulgated by the
legislature. Indeed, such occasional acquiescence can be expected in the
natural course of events, as this practice is sometimes necessary to foster a
workable model of government. When legislative enactments (1) are
reasonable and workable within the framework already adopted by the
judiciary, and (2) work to supplement the rules already promulgated by the
Supreme Court, then considerations of comity amongst the coequal
branches of government counsel that the courts not turn a blind eye. . . .
It must be emphasized, however, that the consent of the courts to
legislative regulation of inherent judicial authority is purely out of
considerations of inter-branch comity and is not required by any principle
of free government. To hold otherwise would be to irreparably damage the
division of governmental power so essential to the proper maintenance of
our constitutional republic. As the Court of Appeals has stated,
In deference to separation of powers, judges will lean
over backward to avoid encroaching on the legislative
branch’s (power) . . . .
....
15
However, the separation of powers doctrine, properly
understood, imposes on the judicial branch not merely a
Negative duty not to interfere with the executive or legislative
branches, but a Positive responsibility to perform its own job
efficiently. This Positive aspect of separation of powers
imposes on courts affirmative obligations to assert and fully
exercise their powers, to operate efficiently by modern
standards, to protect their independent status, and to fend off
legislative or executive attempts to encroach upon judicial
[prerogatives].
Id. at 481-82 (emphasis added) (quoting Anderson Cnty. Q. Ct., 579 S.W.2d at 878).
Thus, we recognized that “‘[i]t is an imperative duty of the judicial department of
government to protect its jurisdiction at the boundaries of power fixed by the
Constitution,’” id. at 482 (quoting State ex rel. Shepherd v. Nebraska Equal Opportunity
Comm’n, 557 N.W.2d 684, 693 (Neb. 1997)), and that “the legislature can have no
constitutional authority to enact rules, either of evidence or otherwise, that strike at the
very heart of a court’s exercise of judicial power,” id. at 483 (citation omitted).
The State argues in its brief to this Court that the ERRA “can be read to
supplement Rule 41(g) without frustrating or impairing its overriding function.” We
disagree. The ERRA is not an attempt by the General Assembly to “supplement” Rule
41; the ERRA is an attempt by the General Assembly to abrogate both the express terms
of Rule 41 and this Court’s prior holdings regarding Rule 41. Cf. State v. Pruitt, 510
S.W.3d 398, 417 (Tenn. 2016) (characterizing the ERRA as “a modification of a rule of
criminal procedure”). By passing the ERRA, the General Assembly was attempting to
create a good-faith exception to the exclusionary rule, a judicially created remedy. We
repeat: “this Court has both the authority and the responsibility to decide whether [a]
good-faith exception, or any other exception [to the exclusionary rule], should be
adopted.” Reynolds, 504 S.W.3d at 314 (citing Hodge v. Craig, 382 S.W.3d 325, 337
(Tenn. 2012)). We are compelled to conclude that, by passing the ERRA, the General
Assembly effectively usurped both that authority and that responsibility.
We hold that, by directly contradicting existing procedural rules and then-existing
Court precedent related to any good-faith exception through the enactment of the ERRA,
the General Assembly overstepped its constitutional boundaries. The ERRA represents a
violation of the Tennessee Constitution’s Separation of Powers Clause and, therefore,
cannot be upheld.
In light of our holding that the ERRA is unconstitutional, we must conclude that
the trial court erred when it denied the Defendant’s motion to suppress in reliance on the
ERRA. However, that conclusion does not necessarily entitle the Defendant to relief.
16
Good-Faith Exception to Rule 41’s Exclusionary Rule
This Court recently adopted a good-faith exception to the exclusionary rule in a
case in which the record demonstrated that a law enforcement officer executed a warrant
in good faith but the warrant later was determined to be invalid “solely because of a
good-faith failure to comply with the affidavit requirement of Tennessee Code Annotated
section 40-6-103 and -104 and Tennessee Rule of Criminal Procedure 41(c)(1).”
Davidson, 509 S.W.3d at 186.7 In doing so, we noted that the search warrant complied
with the United States and Tennessee Constitutions because it was issued by a neutral and
detached magistrate, specifically described the place to be searched and the things to be
seized, and it was based on probable cause supported by testimony under oath. Id. at 183.
We then considered the defect that rendered the warrant noncompliant with the
relevant statutes and Rule 41: the preparing officer inadvertently printed out the
supporting affidavit on letter-sized paper instead of legal-sized paper with the result being
that the signature line was left off of the affidavit. As a result, after appearing before the
magistrate and swearing to the truth of the affidavit, the officer did not sign the affidavit
as the affiant. Both the issuing magistrate and the officer did sign the warrant, however.
We summarized the status of the warrant as follows: “Because Investigator Childress
inadvertently failed to sign as the affiant on the affidavit, the search warrant was not
issued on the basis of a signed affidavit as required by Tennessee Code Annotated section
40-6-103 and 40-6-104 and Tennessee Rule of Criminal Procedure 41(c)(1). All other
constitutional and statutory requirements were met.” Id. at 184.
We adopted the good-faith exception referenced above based on the following
reasoning:
Investigator Childress intended to obtain a valid search warrant. He
reasonably believed that the warrant, based on probable cause and issued by
a neutral and detached magistrate, was valid. The search warrant was later
determined to be invalid based on noncompliance with statutory and
procedural provisions because Investigator Childress printed the affidavit
on the wrong size paper, did not notice that the signature line was cut off,
and failed to sign the affidavit. Instead, he placed his signature on a line on
the warrant. All other constitutional and statutory requirements were met.
. . . When an officer has complied with constitutional requirements to
obtain a warrant, but in good faith failed to comply with the state statutory
and rule affidavit requirements, societal interests are not advanced when the
7
We note that the search warrant at issue in Davidson was issued in January 2007, before
the ERRA became effective. See Davidson, 509 S.W.3d at 173.
17
exclusionary rule applies to exclude evidence obtained from execution of
the warrant.
Id. at 186.
A similar analysis is called for under the facts of this case. Here, the good-faith
mistake was made not by the officer seeking the warrant but by the judge when he filled
out the requisite information about the time of issuance. Judge Rogers completed the
search warrant paperwork in triplicate, as mandated by Rule 41, but erroneously indicated
the hour as “PM” on one of the three required iterations. Judge Rogers correctly
indicated “AM” on the other two. Because the search was conducted immediately after
the warrant was issued, i.e., long before “11:35 PM,” and because a signed copy of the
warrant was left at the Lowe residence, it was obvious to all concerned that the mistake
was a simple clerical error. Indeed, Judge Rogers himself testified that the “PM” was the
result of a clerical error on his part.
As this Court has emphasized repeatedly, the purpose of the magistrate indicating
the time at which a search warrant is issued is to ensure that the warrant is obtained
before the search is conducted, not afterwards. See, e.g., Bobadilla, 181 S.W.3d at 645;
Coffee, 54 S.W.3d at 233. Moreover, Rule 41’s requirement that all three copies of a
search warrant be “exact” is to ensure that “the critical facts and details of the warrant”
are subject to precise determination. Coffee, 54 S.W.3d at 233. To this end, we remind
officers and magistrates that their utmost attention to detail is required when seeking and
issuing search warrants. See Everett v. State, 184 S.W.2d 43, 45 (Tenn. 1944) (“The use
of printed forms has made the procurement of a search warrant the merest formality,
considering the fundamental constitutional right which the search invades. Certainly, this
Court can do no less than to require that the few blank spaces be filled in, and the other
details of the formality be carried out with care and precision.”). Nevertheless, we also
recognize that officers and magistrates are busy human beings and, as such, can be
expected to make the occasional harmless clerical error in good faith.
There is no contention in this case that the search of the Lowe residence took place
before the search warrant was duly issued. Nor is there any contention that the
“AM/PM” discrepancy resulted in any particular prejudice to the Defendant. Rather, the
Defendant contends that all of the evidence gathered pursuant to a search warrant that
satisfied constitutional requirements must be suppressed because Rule 41’s technical
requirement of three “exact” copies was not met. However, the facts of this case support
the trial court’s findings that the technical violation of Rule 41 “was the result of a good
faith mistake” and “was an unintentional clerical error” by the issuing magistrate. The
record further demonstrates that the variation between the three copies of the warrant
caused by the magistrate’s good-faith mistake was inconsequential. We hold that the
exclusionary rule should not be applied under these circumstances.
18
We hold that a good-faith clerical error that results in an inconsequential variation
between the three copies of a search warrant required pursuant to Rule 41, in and of itself,
does not entitle the moving party to suppression of the evidence collected pursuant to the
warrant. We adopt a good-faith exception to the exclusionary rule under such
circumstances. When a magistrate has issued a warrant in compliance with constitutional
requirements but, in good faith, fails to comply with Rule 41’s technical requirement of
three “exact” copies, “societal interests are not advanced when the exclusionary rule
applies to exclude evidence obtained from execution of the warrant.” Davidson, 509
S.W.3d at 186.
In order to provide guidance to trial courts considering motions to suppress arising
from technical violations of Rule 41, we take this opportunity to explain that, when a
defendant has demonstrated that a search warrant or its supporting affidavit is
noncompliant with the technical requirements of Rule 41 or other relevant statute(s), the
burden shifts to the State to establish by a preponderance of the evidence that (1) the
technical noncompliance was the result of a good-faith error and (2) the error did not
result in any prejudice to the defendant. See, e.g., United States v. Diehl, 276 F.3d 32,
41-42 (1st Cir. 2002) (recognizing that, where the state is defending a motion to suppress
on the basis of a good-faith exception to the exclusionary rule, it is the state’s burden to
demonstrate that the conduct at issue meets the standards of good faith). Although the
term “good faith” is not subject to precise definition, a good-faith mistake is one
characterized by simple, isolated oversight or inadvertence. A good-faith mistake does
not include conduct that is deliberate, reckless, or grossly negligent, nor does it include
multiple careless errors. Furthermore, where a finding of good faith depends on the
credibility of one or more witnesses, the trial court should set forth its assessment of that
factor to facilitate appellate review. If the State carries its burden of proving both prongs,
the trial court then may consider, in the trial court’s sound discretion, whether the
technical noncompliance was sufficiently inadvertent and inconsequential to qualify for
the narrow good-faith exception to Rule 41’s exclusionary rule that we have adopted.8
In sum, we affirm, although on different grounds, the trial court’s denial of the
Defendant’s motion to suppress the evidence gathered from the Lowe residence.
Defendant’s Statement to Detective Malach
In addition to moving to suppress the evidence gathered from her home, the
Defendant moved to suppress the statement she made to Detective Malach on the basis
that Detective Malach failed to advise her properly of her rights as required under
8
Because the trial court in this case did not have the benefit of the good-faith exception
analysis that we adopt herein, the trial court did not make a specific finding that the error at issue
was inconsequential and caused no prejudice to the Defendant. However, the record contains no
indication that the “A.M./P.M.” variance was anything other than inconsequential and harmless.
19
Miranda and that her alleged waiver of those rights was ineffective. The Defendant also
asserted that her statement was not voluntary due to Detective Malach’s interrogation
technique and her mental status at the time she made her statement.
At the November 2012 hearing on the Defendant’s motion, Detective Malach
testified that, when he arrived at the dental practice where the Defendant worked, he
spoke to a manager and asked to speak to the Defendant. Detective Malach was led to
the Defendant’s workstation where the Defendant was working. Detective Malach
introduced himself and requested a private space. Detective Malach and the Defendant
went to a meeting room and Detective Malach began their conversation by asking if the
Defendant knew why he was there. He testified, “She was in a good mood. She was
laughing. She said no.” Detective Malach told her that they “had found the laundry
basket” and, according to Detective Malach, “[a]t that point [the Defendant’s] mood
changed,” and “she became more serious about it.”
Detective Malach explained that he wanted the Defendant’s cooperation in
determining what had happened and that he wanted her to come to the police department
for an interview. He also told her that, once they got to the police department, he would
issue her Miranda warnings. He testified that he “went over” the Miranda warnings at the
dental office. He told the Defendant that she did not have to go to the police department
and that she did not have to speak with him. When he asked her if she would come to the
police department to be interviewed, the Defendant agreed to do so. She also agreed to
accompany Detective Malach in his vehicle, and she rode in the front passenger seat. She
was not handcuffed. During the drive, they did not discuss any matters involving the
dead infant boy. Detective Malach described their conversation during the drive as
“normal” and described the Defendant’s mood and demeanor as, “She was nice. She was
laughing, you know, talking, just a normal conversation. There wasn’t a whole range of
emotions.”
After they arrived at the police station, Detective Malach took the Defendant into
an interview room. The ensuing interview was videotaped. Detective Malach testified
that he read the Defendant her Miranda rights, and she orally waived them. When the
Defendant asked if she should have an attorney, Detective Malach “let her know it was
not mandatory.” The Defendant subsequently agreed to the interview.
On cross-examination, Detective Malach acknowledged that he did not obtain a
written waiver of her Miranda rights from the Defendant. He explained his position was
that, given the videotape of the interview, the written waiver was not necessary.
Detective Malach also testified that he had received some “first responder” first aid
training. Based on this training, he suspected that the Defendant had recently given birth
and “assumed” that she had lost a significant amount of blood. He agreed that “extreme
blood loss can impair somebody’s ability to think and reason.”
20
Detective Malach described the interview room as being “a little bit on the interior
of the building,” requiring passage through several doors and not open to the general
public. The room had no windows.
In response to questions by the trial court, Detective Malach testified that he did
not consider the Defendant to have been in custody “until we found out exactly what
happened during the interview.” He indicated that, once the interview had provided
probable cause to arrest the Defendant, she would not have been free to leave the police
station.
The videotape of the interview was admitted into evidence, and the trial judge
stated that he had reviewed it. This Court has reviewed it as well.
After Detective Malach finished testifying for the State, the defense called Dr.
Pamela Auble, a psychologist who had examined the Defendant after she was arrested.
The State objected on the basis of relevancy. Defense counsel explained that Dr. Auble
would testify “as to [the Defendant’s] mental state at the time that she was—or near the
time she was being interrogated.” Defense counsel told the trial court that Dr. Auble had
not reviewed the videotape of the Defendant’s statement but had administered several
psychological tests and, based on the results of those tests, would testify about the
Defendant’s “ability to perform in an interview at the time Detective Malach talked to
her.” Defense counsel asserted that Dr. Auble had concluded that the Defendant’s
thinking and reasoning had been impaired at the time Dr. Auble saw the Defendant,
which was several days after the police interview. Defense counsel further asserted that
Dr. Auble could opine as to the effect of those several days on the Defendant’s mental
state. Defense counsel stated,
Judge, I expect Dr. Auble to be able to say that [the Defendant] was
someone who could be—who would have a difficult time understanding the
adversarial nature of the interview; that she was someone with extremely
low self-esteem, as I mentioned the depression and anxiety; and she was
someone who in response to authority, such as a police officer, would
almost not have a will to say no.
The trial court understood the defense to be arguing that Dr. Auble’s testimony
would be relevant to demonstrating that the Defendant’s alleged waiver of her Miranda
rights was not effective and that her ensuing statement was not voluntary. The trial judge
allowed Dr. Auble to be sworn in so that he could “ask some basic questions” “just to
preserve the record.” When Dr. Auble told the trial court that she had not watched the
videotape of the Defendant’s interview with Detective Malach, the trial judge stated, “I’m
not going to allow her testimony.” After further argument by defense counsel, the trial
court clarified that it was ruling Dr. Auble’s testimony inadmissible for two reasons:
first, because of the time delay between the interview and Dr. Auble’s testing, which
21
delay encompassed the Defendant being arrested, placed in jail, and medicated; and
second, because Dr. Auble had not reviewed the videotape of the Defendant’s statement.
The trial court allowed the defense to place a copy of Dr. Auble’s report in the record,
under seal, as an offer of proof.
The defense next called Dr. William Kenner, a psychiatrist who had treated the
Defendant after she was arrested on the instant charges. Dr. Kenner testified that he first
saw the Defendant on October 21, 2011, and that he had seen her eight to ten times since
then. He diagnosed the Defendant as suffering from posttraumatic stress disorder;
dissociative disorder not otherwise specified; and adjustment disorder with anxiety and
depression. Dr. Kenner stated that he had watched the videotape of the Defendant’s
interview with Detective Malach.
When the trial court asked Dr. Kenner if, at the time of her interview with
Detective Malach, the Defendant had been “capable of understanding and waiving her
constitutional rights,” Dr. Kenner responded,
There are two aspects to that question. One is a cognitive
understanding, could she understand the words that were said to her, and
from a strictly cognitive standpoint, she can. There’s also an emotional
aspect of understanding, with which she would struggle. [The Defendant]
is an extremely passive individual. She was before she became pregnant,
and that was part of what happened that she became pregnant. She—
because of her difficulty in standing up for herself, she is extraordinarily
vulnerable to simply complying with an interrogator’s version of reality
rather than sticking up for her own.
Dr. Kenner added that, due to the unassisted deliveries during which the Defendant lost a
significant amount of blood, the Defendant was “a woman who was not in good shape
physically at the time of the interrogation.”
Asked by defense counsel about his opinion of the Defendant’s ability to waive
her Miranda rights after having viewed the videotape, Dr. Kenner opined, “As I said
earlier, I think from a cognitive standpoint, if you ask her to—or if you explained her
rights to her, she would be able to hear those, but her ability to stand up for herself and to
understand that she could put those rights into play, she’s going to be—have almost no
ability in that department.” Dr. Kenner added,
I think the interrogation was highly coercive. It involved considerable
bullying on the part of Detective Malach, and when you—he essentially
had his narrative of what had occurred, and, in essence, asked her to agree
with him. Her ability not to agree, even though she may have other—wish
22
not to or have other ideas about it, is not that great. She’s a highly
compliant young woman.
On cross-examination, Dr. Kenner clarified that he did not consider Detective
Malach’s demeanor during the interview to have been bullying, but rather “his words
were emotionally powerful and bullying.” He added, “this is a woman who was having a
great deal of trouble thinking, thinking clearly, and at the time of her interrogation what I
think she was pushed into agreeing to was an element of knowingly killing the babies.”
Dr. Kenner opined that, at the time of the births, the Defendant was not “capable of
knowing that the simple act of putting your hand over the mouth would suffocate a
baby.”
Neither the State nor the defense called any additional witnesses. After hearing
argument, the trial court denied the Defendant’s motion to suppress her statement. The
trial court found that the Defendant “was clearly physically and mentally able to engage
and carry out the questioning and conversation with Detective Malach,” that she “was
voluntarily engaged in conversation,” and “[t]here was no significant mental or physical
issue to make this statement involuntary.” The trial court concluded that the Defendant’s
statements were not the result of techniques and methods offensive to due
process. There was no interference with the defendant’s free will in giving
any incriminating statements in this interview. Further, her free will was
definitely not overborne in such a way as to render her statements a product
of force, coercion or intimidation.
The trial court also determined that, in light of the videotape and Dr. Kenner’s testimony,
the Defendant “might have some emotional issues but that did not make her incapable of
understanding her waiver and the constitutional rights admonition.” The trial court
added, “I conclude that this statement was not the result of unconstitutional force,
coercion, [or] manipulation tactics in violation of the due process clause of the United
States Constitution or the Tennessee Constitution.”
The trial court further determined that, prior to and at the beginning of the
interview, the Defendant was not in custody for purposes of Miranda; that, nevertheless,
the Defendant was properly advised of her rights pursuant to Miranda; and that the
Defendant made an ambiguous request for an attorney that Detective Malach dealt with
appropriately, followed by the Defendant’s agreement to continue the interview without
an attorney. Accordingly, the trial court ruled that the Defendant’s statement was not
made in contravention of either the federal or state constitutions.
Before this Court, the Defendant argues that the trial court erred in excluding Dr.
Auble’s testimony. She also contends that she (1) was in custody during her
23
interrogation by Detective Malach; (2) “was denied her Miranda rights prior to her
interrogation”; and (3) “did not effectively waive her Miranda rights.”
Exclusion of Dr. Auble’s Testimony
The Defendant contends that the trial court committed reversible error by refusing
to admit the testimony of Dr. Auble regarding the voluntariness of the Defendant’s
statement. The Defendant also asserts that the trial court erred by not permitting the
defense to make an offer of proof by question and answer, citing Tennessee Rule of
Evidence 103(b).
Addressing this second contention first, we agree with the Defendant that the trial
court erred by not allowing defense counsel to make its offer of proof through soliciting
testimony from Dr. Auble in question and answer form. Tennessee Rule of Evidence
103(b) provides that a trial court “shall permit the making of an offer [of proof] in
question and answer form.” This Court has recognized that the question and answer
format is “the better practice,” see Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801,
804 (Tenn. 1975), and our Court of Criminal Appeals has properly held that “the trial
court must allow [question and answer offers] when appropriately offered,” Alley v.
State, 882 S.W.2d 810, 817 (Tenn. Crim. App. 1994) (citing N. Cohen, D. Paine, S.
Sheppeard, Tennessee Law of Evidence § 103.4 at 16 (2d ed. 1990)).
The purpose of an offer of proof is to preserve excluded evidence in a manner
sufficient to allow appellate review of the trial court’s decision to exclude the evidence.
As this Court previously has recognized,
In order for an appellate court to review a record of excluded
evidence, it is fundamental that such evidence be placed in the record in
some manner. When it is a document or exhibit, this is done simply by
having the exhibit marked for identification only and not otherwise
introduced. When, however, it consists of oral testimony, it is essential that
a proper offer of proof be made in order that the appellate court can
determine whether or not exclusion was reversible.
State v. Goad, 707 S.W.2d 846, 852-53 (Tenn. 1986); see also Alley, 882 S.W.2d at 816
(“When a party contends that the trial court erred in excluding testimony, the need for a
description of that testimony is compelling. Absent such a showing, an appellate court
cannot determine whether the exclusion was error, and if error is found, whether the error
is harmless.”). Thus, if the record on appellate review is sufficient to allow the reviewing
court to determine whether the trial court erred in excluding the proffered evidence, the
trial court’s erroneous refusal to allow the evidence to be proffered via questions and
answers will not entitle the proffering party to relief. See Tenn. R. App. P. 36(b) (“A
final judgment from which relief is available and otherwise appropriate shall not be set
24
aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial
process.”).
In this case, defense counsel stated on the record that Dr. Auble had administered
three psychological tests to the Defendant on September 23, 2011, and that Dr. Auble
would testify about the Defendant’s “ability to perform in an interview at the time
Detective Malach talked to her.” Defense counsel added,
I expect Dr. Auble to be able to say that [the Defendant] was someone who
could be—who would have a difficult time understanding the adversarial
nature of the interview; that she was someone with extremely low self-
esteem, as I mentioned the depression and anxiety; and she was someone
who in response to authority, such as a police officer, would almost not
have a will to say no.
Additionally, while the trial court did not allow defense counsel to question Dr. Auble
about her evaluation of the Defendant, the trial court admitted, under seal, Dr. Auble’s
written report as an exhibit to the hearing. The record reflects that the trial court
reviewed the report prior to ruling that Dr. Auble’s testimony was inadmissible. Dr.
Auble’s report contains the following “conclusion”:
In summary, the personality testing revealed acute distress with
symptoms of both severe depression and anxiety. [The Defendant’s]
thinking and reasoning were impaired at the time that I saw her. She had
poor self-esteem and a tendency to respond to situations on the basis of
feelings rather than thinking. There were health concerns from the testing.
She is introverted and passive, with difficulty being assertive about her
needs.
We hold that, although the trial court should have permitted defense counsel to
proffer Dr. Auble’s testimony via questions and answers, the trial court’s error in this
regard was harmless. The record contains a sufficient summation of Dr. Auble’s
expected testimony to enable this Court to determine whether the trial court erred by
excluding it. Accordingly, the Defendant is not entitled to relief on the basis of the trial
court’s refusal to allow the defense to proffer Dr. Auble’s expected testimony via a
question and answer format.
We turn, then, to an assessment of whether the trial court erred by excluding Dr.
Auble’s testimony at the hearing on the Defendant’s motion to suppress her statement to
Detective Malach. As set forth above, the excluded testimony would have been offered
to prove that the Defendant’s statement to Detective Malach was not voluntary. It is
25
axiomatic that the State may not prove its case-in-chief against a criminal defendant by
using an involuntary statement. See, e.g., Oregon v. Elsted, 470 U.S. 298, 306-07 (1985).
The trial court ruled Dr. Auble’s testimony inadmissible for two reasons. First, the
trial court recognized that, by the time Dr. Auble evaluated the Defendant, the Defendant
had been arrested, jailed, and charged with two counts of first degree murder. Due to
these significant intervening negative events, the trial court reasoned, Dr. Auble’s
conclusions about the Defendant’s state of mind at the time of her earlier interview with
Detective Malach were not reliable. Second, the trial court reasoned that Dr. Auble’s
conclusions about the Defendant’s interactions with Detective Malach were not
sufficiently reliable because Dr. Auble had not watched the videotaped interview.
This Court reviews a trial court’s decision regarding the admissibility of expert
testimony for an abuse of discretion. See State v. Ballard, 855 S.W.2d 557, 562 (Tenn.
1993) (stating that, “[i]n Tennessee the qualifications, admissibility, relevancy and
competency of expert testimony are matters which largely rest within the sound
discretion of the trial court”). A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical conclusion, bases its decision on a clearly
erroneous assessment of the proof, or utilizes reasoning that causes an injustice to the
complaining party. Konvalinka v. Chattanooga-Hamilton Cnty Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008).
Tennessee Rule of Evidence 702 provides that, “[i]f scientific, technical, or other
specialized knowledge will substantially assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise.”
However, Tennessee Rule of Evidence 703 provides, in pertinent part, that “[t]he court
shall disallow testimony in the form of an opinion or inference if the underlying facts or
data indicate lack of trustworthiness.” Although the trial court did not specifically
reference Rule 703 in its ruling that Dr. Auble’s testimony was inadmissible, the trial
court’s stated reasons for disallowing that proof indicate clearly that the trial court
considered her opinion unreliable for two reasons: first, because the underlying data was
compromised by the passage of time and the significant events that had occurred during
that time, and second, because Dr. Auble had not watched the very interview about which
she was expected to opine. That is, the trial court considered the underlying data upon
which Dr. Auble was basing her opinion to be both (1) influenced by subsequent events
and (2) incomplete.
We hold that the trial court did not err in ruling Dr. Auble’s testimony
inadmissible. We agree with the trial court that Dr. Auble’s proffered opinion was based
on facts that indicated a lack of trustworthiness as to the issue for which her opinion was
being proffered and that, further, because she had not reviewed the interview between the
Defendant and Detective Malach, her proffered opinion was based on incomplete data.
26
Therefore, it would not have substantially assisted the trial court to determine whether the
Defendant’s statement to Detective Malach was voluntary. See State v. Brimmer, 876
S.W.2d 75, 79 (Tenn. 1994) (holding that trial court did not erroneously exclude expert’s
opinion regarding defendant’s susceptibility to coercion because expert reviewed only a
portion of interrogation, rendering expert’s opinion “not sufficiently trustworthy”). The
Defendant is entitled to no relief on this issue.
The Defendant’s Miranda Rights
We now consider the Defendant’s assertions that her statement to Detective
Malach should have been suppressed because of Miranda violations.
When this Court reviews a trial court’s denial of a defendant’s motion to suppress,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We are bound by the trial
court’s findings of fact unless the evidence in the record preponderates against them. Id.
Moreover, because the State prevailed in the trial court, it “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.” Id. We
review the trial court’s application of the law to the facts de novo, however, with no
presumption of correctness. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)).
In Miranda v. Arizona, the United States Supreme Court held as follows:
[W]hen an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is jeopardized . . . .
[Accordingly,] [h]e must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After such warnings have
been given, and such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer
questions or make a statement. But unless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence obtained as
a result of interrogation can be used against him.
384 U.S. 436, 478-79 (1966). We have recognized that, “[b]y its own terms, Miranda
applies to the questioning of an individual who has been ‘taken into custody or otherwise
27
deprived of his freedom by the authorities in any significant way.’” State v. Dailey, 273
S.W.3d 94, 102 (Tenn. 2009).9
Thus, our first inquiry is whether the Defendant was “in custody” during her
interview with Detective Malach. This Court concluded over twenty years ago that
in determining whether an individual is “in custody” and entitled to
Miranda warnings, the relevant inquiry is whether, under the totality of the
circumstances, a reasonable person in the suspect’s position would consider
himself or herself deprived of freedom of movement to a degree associated
with a formal arrest. The test is objective from the viewpoint of the
suspect, and the unarticulated, subjective view of law enforcement officials
that the individual being questioned is or is not a suspect does not bear
upon the question.
State v. Anderson, 937 S.W.2d 851, 852 (Tenn. 1996). Factors relevant to making the
objective assessment of whether a person was in custody at the time he or she was
questioned include
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.
Id. at 855. This list of factors is not exclusive, and the inquiry is “very fact specific.” Id.
9
Following Miranda, the Supreme Court clarified in California v. Beheler, 463 U.S. 1121
(1983), that,
[a]lthough the circumstances of each case must certainly influence a
determination of whether a suspect is “in custody” for purposes of receiving
Miranda protection, 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.
Id. at 1125 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
28
With regard to the issue of whether the Defendant was “in custody” while
Detective Malach was interviewing her at the police station, the trial court allowed the
defense to put on additional proof at a subsequent hearing. At this hearing, the Defendant
testified that she drove herself to her job on the morning of September 14, 2011, arriving
between 7:30 and 8:00 a.m. after about a thirty-minute drive. She first met Detective
Malach at her workplace at approximately 10:00 a.m. that morning. She spoke to him
there for approximately ten minutes, and he asked her if she would accompany him to the
police station. She agreed, and he allowed her to retrieve her purse before she got in his
car. When she asked about her car, “he told me just leave it there at the time and we
would be back shortly to get it.”
She got in the front passenger seat of Detective Malach’s car, and “he immediately
locked the doors.” At that point, she testified, she “felt like [she] had no choice in the
matter anymore.” When they arrived at the station, they entered through a side door.
Detective Malach asked her to sit on a bench in the hallway, which she did. The
Defendant remained on the bench, unrestrained and unaccompanied, for approximately
thirty minutes. During this time, she had her purse and her cellphone with her. Although
she received a phone call from her grandmother while she sat on the bench, she did not
answer her phone because she “didn’t know if [she] was allowed to use [her] cell phone
at the time.”
Eventually, Detective Malach escorted the Defendant into a small, windowless
room next to the bench. Detective Malach left briefly and then returned with a bottle of
water for the Defendant. He closed the single door. The Defendant sat in a chair with
her back to the door and facing Detective Malach. At some point during the interview,
Detective Malach left the room and she remained alone for approximately thirty minutes.
The Defendant testified that, once she was in the room, she did not feel like she could
leave. She added that she did not remember any doors other than the first one she had
used to enter the station and then the door into the interview room.
On cross-examination, the Defendant agreed that, the “whole time” that she was
with Detective Malach, he was “very pleasant” to her. She also acknowledged that,
during the time that she was seated on the bench, she could have gotten up and walked
out of the station. At no time during her interview with Detective Malach did he tell her
that she was under arrest.
The trial court asked the Defendant if, at any time, she had asked Detective
Malach if she could leave. She said that she had not, that it was “not [her] personality to
do that.” She denied that Detective Malach had ever made any display of force to her.
After considering this additional proof, the trial court again concluded that the
Defendant had not been in custody during her interview with Detective Malach at the
police station. The trial court meticulously considered the Anderson factors, noting that
29
the interview began at approximately 9:00 in the morning and that the interview took
place at the police department; the interview there took approximately ninety minutes; the
character of the questioning was based on cooperation and was not “unfair”; that
Detective Malach’s demeanor was “excellent,” noting particularly that he was “pleasant,”
“polite,” “never . . . rude” or “argumentative,” that he “never . . . raised his voice” or
“talked down to her”; that the Defendant was driven to the police station in Detective
Malach’s vehicle, in the front seat, with the car doors locked; that Detective Malach was
the only officer present during the interview; that there was no show of force or authority;
that, while the door to the interview room was closed most of the time, it was also open
some of the time; that the Defendant was “very responsive” to Detective Malach’s
questions and was not badgered or belittled; that the Defendant’s verbal and non-verbal
responses were normal and natural and not the result of force, coercion or pressure; that,
while the Defendant was confronted with the fact of the deceased infant having been
discovered in the laundry basket, she was not confronted with Detective Malach’s
suspicions of guilt; and that the Defendant had been told that she could refuse to answer
questions. With respect to the Defendant’s claim that she felt that she was not free to
leave once she got into Detective Malach’s car and he locked the doors, the trial court
noted that the Defendant had sat on a bench in the hallway of the police department for
approximately thirty minutes after she arrived and that she was not under any restraint
during this time period. The trial court found that a reasonable person in the Defendant’s
position would not have considered herself under arrest under these circumstances.
Based on these findings, the trial court concluded that the Defendant “was not in
custody” and “was not deprived of her freedom in any significant way” such that
“Miranda had no application to the interview at the police department.”
After our thorough review of the proof adduced at both suppression hearings as
well as our careful review of the videotape of the interview, we agree with the trial court.
Viewed objectively, a reasonable person in the Defendant’s position would not have
“consider[ed] himself or herself deprived of freedom of movement to a degree associated
with a formal arrest.” Anderson, 937 S.W.2d at 855.
Detective Malach asked the Defendant to accompany him to the police station
from her place of work, and she agreed. Although he locked the doors of his car after she
got in, the Defendant sat in the front of the car and was not handcuffed. She had her
purse and her cell phone with her. Before the interview at the police station began, the
Defendant spent a considerable period of time sitting unrestrained and unaccompanied on
a bench in a hallway, with her phone. At the beginning of the interview, even though he
was not required to, Detective Malach advised the Defendant that she did not have to
speak with him. During the interview, after learning that the Defendant had given birth
to a second infant, Detective Malach left the Defendant alone in the interview room for
several minutes with the door ajar. Detective Malach’s questioning was appropriate to
his stated goal of learning how a dead infant had come to be placed in a laundry basket in
30
the Defendant’s bedroom and was not focused on obtaining a confession to a crime. Cf.
Dailey, 273 S.W.3d at 103-04 (holding that the defendant was in custody prior to being
given Miranda warnings in part because two police officers interrogated the defendant
with “focused accusations and questions” about his involvement with the victim’s death
and that they told the defendant that they “already had sufficient evidence to convict him
of first degree murder”).
In sum, we hold that the Defendant was not in custody. Therefore, Detective
Malach was not required to provide the Defendant with the Miranda warnings prior to
commencing his interview of her. Accordingly, we need not address the Defendant’s
challenges to the efficacy of the Miranda warnings that Detective Malach provided or of
the validity of her rights waiver.10 The trial court did not err in denying the Defendant’s
motion to suppress her statement on these bases.
Exclusion of Dr. Kenner’s Testimony at Trial
The Defendant’s final issue arises from the trial court’s refusal to allow Dr.
Kenner to testify at trial about the reliability of her statements to Detective Malach. Prior
to ruling, the trial court allowed the defense to make an offer of proof through questions
and answers.
Initially, defense counsel asked Dr. Kenner what “particular qualifications” he had
that qualified him to opine “with regard to the reliability of statements or confessions.”
Dr. Kenner responded,
I have done a significant amount of research. I have given—on
interrogation techniques, false confessions, and the coercive elements in
interrogations, I have lectured on this at local, national, and international
meetings in areas of psychiatry and psychiatric law. I have been referenced
in publications—well, one is by Dr. Snyder Sherman in her book called The
Troops Returning from Iraq. And so I have significant knowledge in that
respect.
Based on his avowed expertise, Dr. Kenner opined that the Defendant’s “law
enforcement interrogation by Detective Malach took place proximal to delivery during a
time of increased vulnerability, both physical and emotional. Because of her dissociative
symptoms and her medical condition, she was particularly vulnerable to suggestion,
manipulation, and subversion of her reality.” Dr. Kenner also opined that the
Defendant’s statement was “so contaminated by Detective Malach’s narrative that we
don’t know if it is true or not.”
10
Moreover, we agree with the Court of Criminal Appeals’ substantive analyses and
conclusions regarding these issues. See Lowe, 2016 WL 4909455, at *19-22.
31
The following colloquy between the trial court and Dr. Kenner also took place:
THE COURT: [H]ave you ever been qualified to testify as an expert in
state court about the reliability of statements to police officers?
THE WITNESS: I’ve been allowed to review interview statements, yes.
THE COURT: And have you testified to the same subject matter, same
type of testimony, that you have today?
THE WITNESS: Very similar, in which I went over the narrative.
We note that the record does not contain a copy of Dr. Kenner’s curriculum vitae.
During his cross-examination, Dr. Kenner maintained that, although Detective
Malach began questioning the Defendant without knowing the facts that resulted in Mr.
Lowe finding a dead infant in the Defendant’s bedroom,
he pursued his narrative as if he knew exactly what had happened. He
stereotyped the case. There is a stereotype within law enforcement for
these kinds of cases. And, in my opinion, Detective Malach simply
followed that stereotype rather than remaining open to all of the
possibilities because he didn’t explore anything other than what was in his
stereotypical narrative.
The following colloquy between the prosecutor and Dr. Kenner ensued:
Q. I understand you’re critiquing his interview technique, but, Doctor—
A. No, I’m—I’m sorry. I’m critiquing his thinking.
Q. How do you know what his thinking is, Dr. Kenner?
A. Because of how he conducted himself in the interrogation.
Q. But to answer my question earlier, would you agree that Detective
Malach did not know what the facts were?
A. Absolutely.
Q. And would you agree that he was trying to determine what the facts
were?
32
A. No.
Q. You would not agree to that?
A. No. He had his stereotype of what the case involved, and that is all that
he would allow Lindsey Lowe to give voice to.
Q. How do you know he had a stereotype as to what the case involved, Dr.
Kenner?
A. Because there is a stereotype within law enforcement of what—if a
woman ends up delivering a baby that is dead, how it died. And that is
typically one in which she smothers the child to prevent discovery of her
pregnancy, the embarrassment that would follow, et cetera.
Q. How do you know, Dr. Kenner, that law enforcement has that
stereotype that they go around with?
A. Well, one is the way Detective Malach jumped to conclusions. He
always jumped in the same direction and he always jumped in the direction
of the stereotype so that that is a significant clue to me that he was
operating off of that stereotype.
Q. I’m wondering, Dr. Kenner, how you know that there’s a stereotype
among all law enforcement that women smother their babies.
A. That is what has been written about in law enforcement journals. It’s
what—the way interrogations are—the information that law enforcement
are supposed to get [in] an interrogation. If their course is on interrogation
about women who just delivered and their babies are dead, that’s what’s
taught.
Q. In every law enforcement jurisdiction?
A. You know, I don’t know about every law enforcement jurisdiction.
What I do know about is the way Detective Malach structured his
interrogation of her, and it was exactly by the book. There was nothing that
varied from that in the slightest. If he had, I would certainly be saying
something different.
33
In ruling that Dr. Kenner would not be allowed to testify in this regard, the trial
court stated,
In evaluating his credibility, his testimony appears to be personal
rather than professional. . . . It’s not reliable. I find that his testimony is
not credible as to this particular issue and it will not substantially assist the
jury. His credibility and bias is clear. Therefore, this testimony will not be
allowed.
....
He just is not qualified in this court to give that testimony.
As set forth above, this Court reviews a trial court’s decision regarding the
admissibility of expert testimony for an abuse of discretion. See Ballard, 855 S.W.2d at
562. A trial court abuses its discretion when it applies an incorrect legal standard,
reaches an illogical conclusion, bases its decision on a clearly erroneous assessment of
the proof, or utilizes reasoning that causes an injustice to the complaining party.
Konvalinka, 249 S.W.3d at 358.
Also as set forth above, Tennessee Rule of Evidence 702 provides that, “[i]f
scientific, technical, or other specialized knowledge will substantially assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise,” and Tennessee Rule of Evidence 703 provides, in pertinent
part, that “[t]he court shall disallow testimony in the form of an opinion or inference if
the underlying facts or data indicate lack of trustworthiness.”
The Defendant asserts in her brief to this Court that the trial court “had no right to
determine Dr. Kenner’s bias or credibility.” However, while the trial court certainly
referred to Dr. Kenner’s bias and credibility, the actual basis for the trial court’s ruling
was its conclusion that Dr. Kenner was not sufficiently qualified to testify as an expert
about the reliability of the Defendant’s statements in light of the manner in which
Detective Malach conducted his interview. We also glean from the trial court’s ruling a
concern that Dr. Kenner’s opinions and inferences were not based on sufficiently
trustworthy data.
Initially, we note that the Court of Criminal Appeals thoroughly analyzed this
issue and concluded that the trial court did not abuse its discretion in excluding Dr.
Kenner’s testimony about the reliability of the Defendant’s confession in light of
Detective Malach’s interview technique. See Lowe, 2016 WL 4909455, at *36-42. We
agree with the lower court’s analysis and conclusion on this issue.
34
Moreover, we emphasize that it is a trial court’s responsibility to act as a
gatekeeper regarding the admissibility of expert testimony. State v. Scott, 275 S.W.3d
395, 401 (Tenn. 2009). In this role, the trial court must ensure that the proffered expert
“‘whether basing testimony upon professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.’” Brown v. Crown Equip. Corp., 181 S.W.3d 268, 275
(Tenn. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Thus,
the trial court “must assure itself that the [expert’s] opinions are based on relevant
scientific methods, processes, and data, and not upon an expert’s mere speculation.”
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). This reliability
analysis includes “four general inter-related components: (1) qualifications assessment,
(2) analytical cohesion, (3) methodological reliability, and (4) foundational reliability.”
Scott, 275 S.W.3d at 402.
We note that the foundation of Dr. Kenner’s opinion that the Defendant’s
statement to Detective Malach was not reliable was based, in turn, on his opinion about
what Detective Malach was thinking during his interview of the Defendant. That is, Dr.
Kenner engaged in sheer bootstrapping to support his claim that Detective Malach had
engaged in an interviewing technique based on an alleged stereotype allegedly taught to
police officers. Dr. Kenner claimed that the stereotype of a woman smothering her
newborn infant “has been written about in law enforcement journals,” but did not identify
any of these journals. He stated that this stereotype was “what’s taught” to law
enforcement officers but admitted that he did not know whether this stereotype was
taught in every jurisdiction. There was no proof in the record that Detective Malach had
been exposed to, or schooled in, this particular stereotype other than Dr. Kenner’s claim
that Detective Malach “jumped to conclusions . . . in the direction of the stereotype” and
that Detective Malach “structured his interrogation of [the Defendant] . . . exactly by the
book.” In essence, Dr. Kenner testified that his opinion was valid and trustworthy
because he said it was. However, “[j]ust because an expert is speaking does not make
what he or she is saying sufficiently reliable to be admitted into evidence as expert
testimony.” Scott, 275 S.W.3d at 402.
We hold that the trial court did not abuse its discretion in ruling inadmissible Dr.
Kenner’s proffered testimony about the reliability of the Defendant’s statement in light of
Detective Malach’s interviewing technique. The Defendant is not entitled to relief on this
basis.
35
Conclusion
For the reasons stated herein, we affirm the Defendant’s judgments of conviction.
____________________________________
JEFFREY S. BIVINS, CHIEF JUSTICE
36