State v. Smith

• Decision Date: 12 November 1996
• Citation: 933 S.W.2d 450
• Court: Tennessee Supreme Court
• Parties: STATE of Tennessee, Appellee, v. Nathan SMITH, Appellant.

Page 450

933 S.W.2d 450

STATE of Tennessee, Appellee, v. Nathan SMITH, Appellant.

Supreme Court of Tennessee at Nashville.

Nov. 12, 1996.

Charles W.B. Fels, Kenneth F. Irvine, Jr., Knoxville, on appeal, Edward L. Hiland, Nashville, Charles I. Poole, Sevierville, at trial, for Appellant.

Charles W. Burson, Attorney General and Reporter, Michael Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Victor S. Johnson, III, District Attorney General, Renee Erb, Asst. District Attorney General, Nashville, for Appellee.

OPINION

BIRCH, Chief Justice.

Nathan Smith, the defendant, appeals the judgment of the Court of Criminal Appeals affirming his two convictions for aggravated sexual battery. In this appeal, Smith contends that the trial court erroneously admitted incriminating statements he made to a mental health counselor. He insists that these statements should have been suppressed because: (1) they were elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) they constituted an involuntary confession; and (3) they were solicited under circumstances that violated his due process rights under the Fourteenth Amendment to the United States Constitution and Article I, § 8 of the Tennessee Constitution. Under the facts of this case, we find that the admission of these statements did not violate the defendant's state or federal constitutional rights; accordingly, we affirm the judgment.

I

The record reflects that one morning the defendant, clad only in his bathrobe, entered the bedroom of his stepdaughter, AJ. ¹ He sat on the edge of her bed and placed her hand on his penis. He removed her hand momentarily and then placed it there again.

A few days later, AJ's mother (the defendant's wife) learned of the incident. She immediately confronted Smith about AJ's allegations. Smith and his wife then voluntarily reported the allegations to the Tennessee Department of Human Services (DHS).

On the day the matter was reported, DHS social worker Tracy Walker interviewed the victim, her mother, and the defendant. Walker told the defendant that, from her experience with the district attorney general's office, if a perpetrator admitted the allegations and received treatment, he probably would not be indicted. She also told the defendant that she could not promise that he would not be prosecuted. Walker also told the defendant that he would be indicted if he did not seek counseling. Walker referred the defendant to Luton Mental Health Center. ²

A few days later, the defendant met with Walker and Jeff West, a detective attached to the Youth Services Division of the Metropolitan Nashville-Davidson County Police Department. West interviewed the defendant at the station; the interview was tape-recorded. The defendant presented himself for this interview voluntarily and was permitted to leave at its conclusion.

Six weeks later, the defendant sought counseling at Luton Mental Health Center. During a session with a counselor, he admitted that the unlawful sexual contact had occurred and that he had found it sexually stimulating.

Neither Walker, West, nor the counselor ever advised the defendant that he had the right to remain silent and that his statements could be used against him. Additionally, the counselor failed to advise him that his statements to her were not statutorily confidential. ³

At a pre-trial hearing, the trial court suppressed the statements the defendant made to Walker and West, presumably based on their respective failure to advise him of his rights pursuant to Miranda v. Arizona. ⁴ After a jury-out hearing at trial, the counselor was permitted to testify about the defendant's incriminating statements to her. The trial court admitted this testimony reluctantly, noting:

We've got a D.H.S. agent, or representative, going to this man and saying, "look, if you'll go get help, we might not prosecute you on this matter." The man goes and gets help, and then you bring that witness in to buttress your case. In other words, you mousetrapped him, didn't you?

At the conclusion of the proof, the jury found the defendant guilty of two counts of aggravated sexual battery. He was sentenced as a mitigated offender to concurrent 7.2 year sentences. ⁵

II

The Fifth Amendment to the United States Constitution ⁶ provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." Article I, § 9 of the Tennessee Constitution provides that "in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself."

As a general rule, a person must affirmatively invoke these protections. Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984); McCormick on Evidence § 125 (John William Strong ed., 4th ed.1992). There are three exceptions to this requirement; two are pertinent here: (1) an individual is not required to invoke the right to avoid self-incrimination during a custodial interrogation by a government agent ⁷ and (2) an individual is not required to invoke the right to avoid self-incrimination if the government has threatened a penalty if the privilege is asserted. ⁸

According to the defendant, the counselor was required to advise him of his Miranda rights prior to their discussion, and he was excused from asserting his right to avoid self-incrimination.

During a custodial interrogation, state agents must affirmatively advise an individual of his right to remain silent and of the consequences of his failure to assert that right. Miranda, 384 U.S. at 467-69, 86 S.Ct. at 1624-25. To constitute a "custodial interrogation," (1) the subject must be "in custody"; (2) there must be an interrogation; and (3) the interrogation must be conducted by a state agent. Id. at 444, 86 S.Ct. at 1612.

An accused is "in custody" if "deprived of his freedom of action in any significant way." Oregon v. Mathiason, 429 U.S. 492, 494-96, 97 S.Ct. 711, 713-15, 50 L.Ed.2d 714 (1977); State v. Smith, 868 S.W.2d 561, 570 (Tenn.1993). The determinative inquiry is whether "there is a 'formal arrest or restraint of freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)(quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714); Smith, 868 S.W.2d at 570. The circumstances of each case will influence a determination of whether a suspect is "in custody" and thus entitled to Miranda protection. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520; see generally State v. Cooper, 912 S.W.2d 756 (Tenn.Crim.App.1995). We think the circumstances in this case clearly indicate that this defendant was not in custody at the time the incriminating statements were made. Although Walker referred Smith to Luton Mental Health Center, she had no further participation in the defendant's decision to visit the center for counseling almost six weeks after the referral. Smith was free to leave at any time and, in fact, did so after each counseling session. There is no indication whatsoever that his freedom of movement was restrained. Accordingly, Smith was not "in custody," for Miranda purposes, at the time he made his incriminating statements to the counselor.

Because the defendant was not in custody, there is no need for us to determine whether the counselor was a state agent or whether her discussions with the defendant amounted to interrogation. Smith was not in custody; therefore, the absence of Miranda warnings did not violate his constitutional right to avoid self-incrimination.

III

The defendant contends that Walker, as an agent of the state, compelled him to make the incriminating statements to the counselor, thereby producing an involuntary confession. ⁹

Because we find that there was no compulsion, we need not consider the concomitant issue of whether Walker, as a DHS social worker, acted as a state agent when she referred the defendant to Luton Mental Health Center. Nevertheless, it is helpful to describe the mandated interaction of the various governmental entities that respond to reports of child sexual abuse. In these cases, DHS personnel, although not officially members of law enforcement, function to some degree in that capacity. When a report of child sexual abuse is received, the "child protective team" is convened for the county in which the child resides or where the abuse alleged occurred. Tenn.Code Ann. § 37-1-607. The teams are composed of representatives from DHS and the district attorney general's office, a juvenile court officer or investigator, and a law enforcement officer. Id. Tennessee Code Annotated § 37-1-607(a)(3) provides "that the child protective investigations be conducted by the team members in a manner which not only protects the child but which also preserves any evidence for future criminal prosecutions " (emphasis added). DHS must orally notify the child protective team, the district attorney general, and the appropriate law enforcement agency, immediately upon learning of any alleged child sexual abuse. DHS and the team are then required to make a full written report to the district attorney general within three days of the oral report. Tenn.Code Ann. § 37-1-607(b)(3). The team may recommend a particular disposition of the case to the district attorney general, but the final decision rests with the district attorney general. Tenn.Code Ann. § 37-1-607(b)(5). ¹⁰

We now determine whether Walker's "advice" to the defendant "compelled" his statement to the counselor. Smith contends that his statement was "compelled" for two reasons. First, he argues that Walker promised him leniency if he did not exercise his right to avoid self-incrimination. Second, he argues that Walker threatened him with prosecution if he did exercise his right to avoid self-incrimination.

In a jury-out hearing, prior to the counselor's testimony at trial, the trial court found that the statements to the...