State v. Willis

• Decision Date: 06 July 2016
• Docket Number: No. E2012-01313-SC-DDT-DD,E2012-01313-SC-DDT-DD
• Parties: State of Tennessee v. Howard Hawk Willis
• Court: Tennessee Supreme Court

496 S.W.3d 653

State of Tennessee

v.Howard Hawk Willis

No. E2012-01313-SC-DDT-DD

Supreme Court of Tennessee, AT KNOXVILLE.

October 1, 2015 Session Heard at Nashville

Filed July 6, 2016

Hershell D. Koger, Pulaski, Tennessee (on appeal); Kathleen Morris, Nashville, Tennessee (on appeal); and Howard Hawk Willis, pro se (at trial), for the appellant, Howard Hawk Willis.

Herbert H. Slatery III, Attorney General and Reporter; Andree Sophia Blumstein, Solicitor General; James E. Gaylord, Senior Counsel (on appeal); and Dennis Brooks, Assistant District Attorney General, (at trial), for the appellee, State of Tennessee.

HOLLY KIRBY, J., delivered the opinion of the Court, in which CORNELIA A. CLARK and JEFFREY S. BIVINS, J.J., joined. SHARON G. LEE, C.J, filed a concurring opinion.

OPINION

HOLLY KIRBY, J.

This appeal arises from the murder of two teenagers, accompanied by the dismemberment of one of them. A jury convicted the defendant, Howard Hawk Willis, of two counts of premeditated first-degree murder and one count of felony murder in the perpetration of a kidnapping. The jury sentenced the defendant to death on each conviction. The defendant appealed, and the Court of Criminal Appeals affirmed his convictions and sentences.¹ On appeal, the defendant contends, inter alia , that certain incriminating statements he made to his ex-wife should have been excluded because she was acting as an agent of the State at the time the statements were made. He asserts that the admission into evidence of the statements violated his right against self-incrimination under the Fifth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. For purposes of the right against self-incrimination, we hold that this is a case of “misplaced trust” in a confidant and there was no violation of the Fifth Amendment. The defendant also argues that the admission of the statements violated his right to counsel under the Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. The incriminating statements to the ex-wife were made during in-person meetings with her at the jail and during recorded telephone calls from jail.

As to statements made to the ex-wife prior to indictment, we hold that the defendant's Sixth Amendment right to counsel had not attached, so there was no violation regardless of whether the ex-wife was acting as an agent of the State. As to statements made in person to the ex-wife after indictment, the evidence shows only that the State willingly accepted information from a cooperating witness. We hold that, for a cooperating witness or informant to be deemed a “government agent” for purposes of the Sixth Amendment right to counsel, the defendant must show that the principal—the State, personified by law enforcement officers—manifested assent, either explicitly or implicitly, to have the cooperating witness act as a government agent, and that the State had some level of control over the witness's actions with respect to the defendant. Agency cannot be proven based solely on the actions of the alleged agent, so proof that the ex-wife repeatedly contacted law enforcement is not sufficient in and of itself to show that the State assented to have her act as its agent. Therefore, the admission into evidence of the statements made in person to the ex-wife after indictment did not violate the defendant's Sixth Amendment right to counsel. As to the incriminating statements made by telephone, we hold that, by placing the telephone calls to his ex-wife from jail with full knowledge that all calls were subject to monitoring and recording, the defendant implicitly consented to the monitoring and recording of his conversations and waived his Sixth Amendment rights. After full review, we affirm the judgments of the trial court and the Court of Criminal Appeals upholding the defendant's two convictions of first degree murder, and we affirm the sentences of death.

FACTS AND PROCEDURAL HISTORY

This case arises from the October 2002 deaths of two teenagers, seventeen-year-old Adam Chrismer (hereinafter “Adam”) and his sixteen-year-old wife, Samantha Chrismer (hereinafter “Samantha.”)² The defendant was indicted for the premeditated first-degree murder of Adam, the premeditated first-degree murder of Samantha, the felony murder of Samantha in the perpetration of a kidnapping, the felony murder of Adam in the perpetration of first-degree murder, two counts of abuse of the corpse of each victim, and one count of abuse of the corpse of Defendant's stepfather, Sam Thomas. The State dismissed the charge of felony murder of Adam. The trial court severed the murder counts from the abuse of a corpse counts. After multiple changes in counsel that resulted in long delays in the proceedings, the trial court ultimately found that the defendant had implicitly waived and forfeited his right to be represented by counsel, and ordered him to proceed pro se at trial; it appointed advisory counsel to assist him. On interlocutory appeal, the Court of Criminal Appeals affirmed the trial court's order that the defendant proceed pro se. See State v. Willis , 301 S.W.3d 644, 645 (Tenn.Crim.App.2009). On remand, the trial judge, Judge Lynn W. Brown, recused himself from the case, and Judge Jon Kerry Blackwood was designated as the trial judge.

A. Pretrial Motions

The defendant filed numerous pretrial motions. Given the complexity of the case, the evidence adduced at the hearings on those motions will be summarized as it becomes relevant to a discussion of the issues below.

B. Guilt Phase

1. State's Proof

The trial was held in June 2010, and the following evidence came before the jury. Victims Adam and Samantha married in August 2002. Sometime earlier that year, they struck up a friendship with the defendant's daughter, Kelly Willis, (hereinafter “Kelly”).³ Through Kelly, Adam and Samantha became acquainted with the defendant. Various witnesses testified that they saw the victims at the Johnson City home of the defendant's mother, Betty Willis (hereinafter “Betty”), on various occasions between April 2002 and September 2002. Photos taken in an August 2002 photo session at a Chattanooga, Tennessee Olan Mills Photography studio depicted the victims with each other and with the defendant.

Vickie Rhyne was a veterinarian with the East Ridge Animal Hospital in Chattanooga. She testified that, on September 25, 2002, a pet dog named “Doge” was checked in for boarding. Samantha Chrismer was listed as the owner of “Doge,” and the defendant was listed on the check-in form as an emergency contact. No one ever came to pick up the dog. Dr. Rhyne did not know whether anyone ever tried to contact the defendant as the emergency contact. At some point, she learned that the owner was deceased. Eventually, in January or February 2003, Dr. Rhyne took the dog home to live with her.

Johnson City attorney James Robert Miller testified that he and his secretary went to Betty's house at 104 Brentwood Drive, in Johnson City, during the lunch hour on September 27, 2002, to handle a routine business matter. When he drove up, he saw the defendant standing outside. When he went inside, the kitchen, bathroom and living room areas of the house were “covered in a lot of debris.” He saw two teenagers—a male and a female—inside the home playing video games on the television. Mr. Miller chatted with the teenage girl. She told him that she met the defendant at a Hardee's restaurant “a week or two before,” and came up from Georgia to clean the house. Later, while he was still at Betty's house, Mr. Miller observed the teenage girl in the back yard with the defendant. She spoke on a cell phone and then handed it to the defendant, who spoke on the same phone and then handed it back to her.

Wilma Clay was Betty Willis's next-door neighbor. Ms. Clay testified that, on various occasions between April and September 2002, she observed the defendant, his daughter, Kelly, a young girl and a young man at Betty's house. She did not see the teenagers after September 2002. In the early morning hours of Saturday, October 5, 2002, Ms. Clay went outside her home to smoke a cigarette and saw the defendant, also smoking a cigarette, standing outside next to Betty's red Jeep. The Jeep appeared to be filled with personal belongings. When the defendant finished smoking his cigarette, he threw it on the ground, picked up a black plastic bag from the back of the Jeep, and threw it on the ground. The neighbor finished her own cigarette and re-entered her house. Sometime later, she came back out to get the newspaper and noticed that Betty's garage door was down but there was a light on inside the garage. She did not think that the garage light was on the first time she went outside.

At the time of the events in question, Samantha's mother, Patty Leming, lived in Chattanooga, Tennessee. She had five children, including sons, Daniel Foster and Richard Foster, and the victim, Samantha. The defendant's daughter, Kelly, initially befriended Daniel and Richard, and later befriended Samantha. Ms. Leming testified that, at one point prior to their disappearance, the victims were living with Kelly in the defendant's Rossville, Georgia trailer.⁴ Ms. Leming assumed that the defendant was living there as well. During that period, she saw Samantha weekly because the defendant brought Samantha by her house to visit. Approximately one week before the victims disappeared, they moved into their own trailer, also in Rossville, Georgia.

Ms. Leming last saw the victims on October 4, 2002, at a Chattanooga Pizza Hut. She and Samantha were waiting for a pizza when Adam arrived and said to Samantha, “Howard said [ ] let's go.” The victims left in a red Jeep that Ms. Leming thought belonged to the defendant. Ms. Leming said it appeared to her that the defendant was driving the vehicle. After that, all of Ms. Leming's attempts to reach Samantha were fruitless.

Adam's mother, Teresa...