Alright, we are back after a little hiatus for the holidays! However, the Thanksgiving week brought with it some defense victories, so let me share them with you. First, another reversal in Davidson County, for the improper admission of hearsay, in a child sex abuse case. Check out State v. John Daniel Simmons:
There’s quite a bit of hearsay case law in here, so it might be a fun read for civil attorneys as well.
But, I’m going to focus on a win out of East Tennessee - a case of incest. I didn’t even know we were charging people with incest these days, but leave it to East TN to really enforce the law. If you overhear any fights within a blended family (“I don't want to take her to the skating rink, she’s even NOT my full sister!”), you can cite this case as some sort of weird proposition, that the proper answer is, “Oh yes she is!” (As an only child, I'm really speculating on the types of fights siblings have.)
Anyway, let's talk about the Blake Children case. The incident happened around Thanksgiving 2011, when the defendant was 22 years-old, and the victim was 16 years-old. They were half-siblings (same mamas). The victim reported the abuse to a counselor, who then reported it to police. The report was that the defendant molested the victim when she was seven, and then had the victim perform oral sex around the time that she was sixteen and they were once again living together.
The Defendant was in custody for unrelated charges and the detective investigating the incident went to go see him in jail. She said it was the policy of the Morristown Police Department to not record, via audio or video, the interviews they had with suspects. First of all – WORST.POLICY.EVER. Second, if he was in custody on other charges, the responsible thing (and dare I say, constitutional) would have been to contact the attorney of record in his first case. But no one asked me. The detective makes arrangements: goes in to see Childress, asks some basic personal history, advises him why she is there, and eventually gets around to reading him his rights. Defendant denies the accusations and then states that he is willing to speak with her, but he wants to run it by an attorney first. Not a bad answer. The detective concludes the interview, but then has one last question: would he be willing to take a lie detector test?
Alright, folks, we can see this from a mile away, right? The classic bait-and-hook. “But, sir, just one more little logistical question, if you will, sir.” And like that, Childress agrees to talk with her, telling her what happened, but refusing to write it down or sign anything. (Note for those less-versed: you don’t have to write anything down, you don’t have to sign anything, and the police don’t have to tell you the truth, for it to still be used against you.) At the suppression hearing, the Defendant denied that he made statements admitting to oral sex with the victim, and he said that he agreed to talk to the detective because he believed she was going to ask him questions about a topic that he’d already been asked about. He testified that she continued questioning him after he stated he wanted an attorney.
This case went to trial after the trial court denied the defense’s motion to suppress the Defendant’s statements to the detective. At trial, the detective’s testimony changed, in that she stated the Defendant was the one that “reinitiated” conversation after she ceased questioning. The detective then testified about the substance of the Defendant’s confession.
At trial, the Defendant testified that he had signed the waiver of rights before he knew why the detective was even there to question him. He wanted to speak to an attorney after she advised him what it was about. He called the detective a liar and denied that he made those statements. (I’m not going to give you the play-by-play of the trial testimony, because it’s not relevant to the suppression issue – if you want those details, you’ll have to read the case.)
In this case, the Court of Criminal Appeals found that everyone agreed that the Defendant initially made a knowing, voluntary, and intelligent waiver of his right to remain silent and spoke with police. The first question is whether the Defendant then invoked his right to remain silent. In seeking an answer, the CCA cited the following:
The CCA found that the statement, “I will talk to you, but I want an attorney first,” was a clear and unequivocal invocation of his Miranda rights. (Other good responses are: “get me a lawyer!,” “I want to call a judge and a federal public defender,” “I want to talk to an attorney first,” or “I’d be willing to cooperate, but I’d like an attorney first.”) So, the Defendant clearly requested an attorney.
The CCA then looked at what happened next:
Once a Defendant asks for an attorney, the party is over. Period. End-of-story. There are not to be any additional questions asked. See page 9 of the opinion for the specific case law. The CCA found that this was not a case where, after invoking his right to counsel, the Defendant then engaged the detective to continue discussing the case. The Court found that the detective, not the Defendant, continued the engagement. There was no doubt the Defendant was in custody – he was in the attorney room at the Courthouse. This Court succinctly summarized its finding (from page 12 of the Opinion):
Read the full opinion here: https://www.tba.org/sites/default/files/childressb_112515.pdf
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