# FILED
October 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION Filed: October 12, 1998

STATE OF TENNESSEE, ) ) APPELLEE, ) SULLIVAN CRIMINAL ) v. ) Hon. R. Jerry Beck, Ju dge ) NATHAN ALLEN CALLAHAN, ) No. 03S01-9711-CC-00136 ) APPELLANT. )

FOR APPELLANT : FOR APPELLEE : STEPHEN M. WALLACE JOHN KNOX WALKUP Blountville Attorney General and Repor ter DARIAN B. TAYLOR Assistant Attorney Gener al Nashville



# O P I N I O N

AFFIRMED HOLDER, J.2 OPINION
We granted this appeal to decide whether a juvenile can constitutionally waive the right to remain silent when the juvenile has not been informed of the possibility of being p rosecuted as an adult. We hold that: (1) nei ther the Tennessee Constitution nor the United States Constitu tion requires police officers to inform the defendant that he may be prosecuted as an adult; and (2) juvenile waive rs shall be analyz ed under a totality-of-the-circumstances test, which requires c

onsideration of factors consiste nt with those enumerated in Fare v. Michael C. , 442 U.S. 707, 724-25 (1979). The decision of the Court of Criminal Appeals affirming the defendant's conviction is affirmed.

BACKGROUND

On March 30, 1994, the defendant, Nathan Allen Callahan, murdered both his mother and his thirteen-year-old sister in the garage of the Callahan family home. Both victims died as the result of multiple shotgun wounds. The mother sustained close range shot gun blasts to the buttocks, to the back, to the shoulder, and to the head. The defen dant shot his sister at close range, once in the buttocks and once in the head. The shotgun blasts to the vi ctims' heads displaced most of the victi ms' brain matter from their cr anial cavities. The defendant was fifteen years old at the time of the murders.

Prior to the murders, the defendant resided with his par ents and his sister in their upper-middle-cl ass family home. The defendant indicated that he was never abused and described member s of his family as people "w ho try to do the right thing." The defendant's r elationship with his family began to deteriorate when the defendant began abusing drugs. The defendant's father, Glen3 Callahan, learned of the defendant's dr ug abuse around January 1, 1994, and attempted to restrict the defendant's activities. The Call ahans disciplined the defendant by: selling his 1994 Pontiac Trans Am, restri cting his contact with drug-abusing friends, c easing his allowanc

e, and informing him that he could not obtain a learner's permit until he passed a drug screen and improved his grades.

The defendant continued to test positive on drug screens despite his parents' disciplinary

measures. In February o f 1994, the defendant's mother traded her car for a 1994 black Camaro. She informed the defendant that he could have the Camaro if he passed two drugs screens. The situation, however, remained relatively

unchanged. Approximately two days before the murder s, the defendant

asked hi s siste r in the

presenc e of a frie nd, "What wo uld you do if I killed my Mom and Dad?" His sister replied: "Nathan, shut up. That's not nice to say. You shouldn't d o that, I would hate you for ever if you did." The defendant, however, devised a plan to kill his parents and his grandparents in response to his activi

ties being restricte

d.
On the day of the murders, the defendant ha d several lengthy

telephone conversations with James Saylor and Jonathan M ann. The defendant discussed his plan with both Say

lor and Mann. Saylor offered s uggestions as to how the defendant might murder his mother and other members of the Callahan family

. Unbeknownst to the defendant, these telephone conversations w ere recorded.

The first recorded convers ation admitted into evidence occurred between the defendant and James Saylor. The defendant i nformed Saylor that he was "getting ready to g o upstairs and get the gun. " The defendant discussed the possibility of remaining at the "house for a couple of weeks " after he murdered his parents. He stated that he would kill his father when his father returned4 home from a business trip and that he would also kill hi s grandparents. The defendant, however, expressed concern that others would became susp icious if bills were not paid and

his parents failed to appear for w ork. During the second and third conversations with Saylor, the defendant stated that he could not find the pistol and was going to have to use the shotgun. The defendant also expressed concern that he w ould not be able to sneak up behind the victims with a shotgun.

The defendant went into detail about hi s devised plan to kill his mother and sister during the thi rd recorded conversati on with Saylor. H e informed Saylor that his mother and sister "went out to eat." He told Saylor, "W hy don't you come over, I'm gonna shoot them as they walk in the door. Come up behind them, and shoot them in the garag e so I don't get blood all over the house." The defendant elaborated that he was "g oing to wait around the corner, you know at the garage, when they

walk in, I'm going

to come up behind them, pow, pow

. (Laughs)." Saylor r

esponded, "Why don't you just push them in the garage, and turn the car on."
The defendant had a subsequent taped phone conv ersation with Jonathan Mann. He told Mann that "I've got the goddamn gun outside th e car, and I'm looking out the blin d. As soon as I see that fuckin' car, I'm gonna run out there and wait for them. I'm gonna shoot them in the garage, 'fore they can get in the house." He further told M ann that "I'll go to jail " "if I get caught." The defendant asked Mann, "How many years do you think I' d get? Life?" Mann responded affirmatively. The de fendant then called Saylor on a three-way line and again ex

plained his

plan. The defen dant reiter ated that "[w

]e gotta ki ll my grandparents tomorrow." Saylor recommended poisoning the defe ndant's mother's food. The defendant responded, "No, I' m shooting her ass, bitch. "5 The defendant's mother and sister retu rned home while the defendant was on the phone. He placed the receiver down, l eaving it off the hook so that Saylor could hear the ev ents. He walked outside , retrieved the shotgu n, and waited on his mother and si ster to open the garage door. The garage door opened, and they entered the gar age. The defendant first shot his si ster once. He then shot his mother in the sh oulder. His sister kn elt down on the gara ge floor. The defendant walked within a few feet of his sister and shot her in the head. The defendant again pointed the shotg un in the direction of his mother and pulled the trigger . The gun was empty. H e reloaded the shotgun and shot his mother in the buttocks. H e then shot her in the back and i n the head. The defendant left the garage and re-ent ered the house. He picked up the telephone receiver and told Saylor that he had killed his mother and his sister.
The defendant was apprehended by the police ap proximately four hours after he murdered the victims . He was transported t o the sheriff's department. The defendant's father had returned from his bus iness trip and granted the police permission to question the defendant. Th e defendant was advised of his Miranda rights on several

occasions. At the sheriff's dep artment, he was informed:
You have the right to remain silent, anything you say can be used against you in court.You have the right to talk to a lawyer for advice before we ask y ou any questions, and hav e him with you during questioning.If you cannot afford to hire a law yer, one will be appointed before any questioni ng if you wish one. I f you decide to stop answering ques

tions now without a l awyer present, y ou can stop answering any

time you wish.

The defendant read the waiver of r ights form and then signed the form. The defendant stated that he understo od his rights.6 The officers testified that the def endant's demeanor was "very calm." He was not crying, shaking, or visi bly upset. The defendant did not appear to be under the influence of any substances . A drug screen later confirmed that the defendant was not under the influence o f any substances at the time he w aived his right to remain si lent. The defendant stated that he wi shed to speak. The officers then read the second part of the Miranda form to the defendant which stated:
I have read this statement of my rights, and I know w

hat my rights are. I want to make a statement and answer questions. I do not want a lawyer at

this time. I understand, and k now what I am doing. No promises or threats have been made to me, and no pressure or force of any ki nd has been used against me.
The defendant then reread and signed the for m. He stated that he understood what he was signing.
The defendant, after reading, signi ng, and indicating that he understood both forms, began to speak about the mur ders. The defendant's lengthy statement was transcribed by an officer. A bathroom break was taken during the statement. The defendant was gi ven a pack of cookies or cr ackers and a soft drink. The defendant neither req uested additional breaks nor complained about the facility's qual ity. He neither req uested an attorney nor indi cated that he wished to cease speaking. He never requested to see his father or any family members. Officers testified that the de fendant's demeanor was "calm" and "polite" during the statement. The transcribed statement was read to the defendant. The defendant acknowledged that the statement was accurate and signed every pag e of the statement.7 The defendant filed a motion to suppress his statement. He asserted that while he "may have under stood the literal languag e" of the Mirandawarnings, the officers failed to inform him of the "ramific ations" of his waiver.He claimed that the officers should have pr ovided him with an "ex planation of the judicial system" and that the police officer s should have informed him of the poss ibility of being prosecuted as an adult.

The trial court denied the defendant's mo tion to suppress. The trial court held that under the totality of the circumstances the defendant know ingly and voluntarily w

aived his right to remain silent. The court stat ed that the waiver forms were "simple [and] straightforward, and perhaps designed to add ress all levels of education." The court noted that the atmosphere of the interr ogation room was calm; that no undue pr essure was placed upon the defendant; and that the defendant was calm, clear, and cognizant during the waiver process.
The trial court rejected the defendant's argument that a police officer is under an obligation to inform j uveniles of the possibili ty they may be prosec

uted as adults. The court stated that a "police officer could not predi ct the future." The court found

that such a r

equirement could be dang erous becaus e "anytime the police officer steps over that boundary" and attempts to pr edict the future, the officer runs the risk of misl eading the juvenile.
The defendant raised the suppression/w aiver issue at the appell ate level. The Court of Criminal Appeals noted that the def endant did not contend that his confession was coerced. The defendant m erely argued that his age and the fact that he was not informed that he mi ght later be prosecuted as an adult precluded him from making a knowing and intelligent wai

ver. The court rejected the defendant's argument and held that under a totality-of-the-cir

cumstances review1 The defendant argues t hat whil e the majorit y of jurisdict ions have decl ined to adopt a per se exc lusion ary rule , thos e juris dictio ns "h old th at the abse nce of a w arnin g abo ut ad ult prosecution is at l east one factor to be consider

ed in ascertaining t he voluntariness of a purp orted waiver . . ." Thi s is an inaccu rate assessment of th e status of t he law. Most j urisdictions uti lizi ng the totality

-of-the-circumstances test have: (1) held that police officers are not required to inform juvenil es of the possi bili ty of bei ng prosecuted as adults; and (2)incorporat ed the Fare factors when analyz ing the t otali ty of t he circumstances. The Fare factors, listed infra , do not i nclude an inquir y int o whether pol ice offi cials have informed a juveni le of the possibil ity

of being pro secuted as an a dult. 8 the defendant's waiver was the result of a free and deliberate choice . The Court of Criminal Appeals affirmed the tri al court's denial of the motion t o suppress and affirmed the defe ndant's conv ictions. U pon review , we affirm.

ANAL YSIS
The defendant argues that both the Fifth Amendment to the United States Constitution and Article I, § 9 of the Tennessee Constitution mandat e that a juvenile suspect be informed of the possibility of being prosecute d as an adult before the juvenile can make a k nowing, intellig ent, and voluntary w aiver of the right against self-i ncrimination. According ly, the defendant asks this C ourt to adopt a per se exclusionary rul e barring the use of a juv enile's confession when the juvenile has not been w arned of the possibility of bei ng prosecuted as an adult. In the alternativ

e, the defendant argues that if this Court declines to adopt
a per se exclusionary rul e, this Court should add to the list of factors considered under the totality-of-the-circumstances test the inq uiry of whether a juv enile was informed of the possibility of bei ng prosecuted as an adult. 1 The defendant maintains that his confession was unconstitutional even when analyzed under a totality-of-the-circ

umstances test. We disagree and decline to adopt a per se exclusionary rul e.9 PER SE EXCLUSIONARY RULE

The Fifth Am endment to th e United States Constitution as applied through the Due Process Clause of Fourteenth Amendme nt provides that no person shall be compelled in any crimi nal case to be a witness against himself. The Tennessee Constitution also pr ovides that a defendant cannot be compel led to give evidence ag ainst himself. Tenn. Const. art. I, § 9.
An accused may waiv

e the right against sel

f-incrimination. Miranda v. Arizona , 384 U.S. 436, 444 (1966). In Miranda , the United States Supre me Court held that a suspect
must be warned prior to an y questioning that he has the right to remain silent, that anythi ng he says can be used ag ainst him in a court of law, that h e has the right to th e presen ce of an a ttorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id . at 479. The Court held tha t a suspec t may knowin gly and inte lligently wa ive the right against self-incrimination only after being apprised of his or her Miranda rights. Id . Accor

dingly , a constitution al waiver of t he right again st selfincrimination requires the accused to make an intelligent, knowing, and voluntary waiver of th e rights af forded by Miranda

. Id . at 444.

Under federal constitutional law, courts must look to the totality of the circumstances when determinin g whether an adult h as made a knowing, intelligent, and voluntary waiver under Miranda

. North Carolina v. Butler , 441 U.S. 369, 373 (1979). The totality-of-the-circumstances test enunciated in Butler was la ter adop ted to an alyze

cases i nvolving a ju

venile 's waiver of Miranda rights. In Fare v. Michael C. , 442 U.S. 707 (1979), the Cour t held that a2 The d efenda nt's brief fails to reflect that State v. Ben oit , 490 A.2d 295 ( 1985), is no longer pr ecede nt in New Ham pshire. See State v. Dandurant , 567 A.2d 592 ( N.H. 1989) (hol ding the standard Miranda warnings and not the Ben oit juven ile war nings applic able t o juve nile interrogations). 10 juvenile's request

for his probation officer during questioning was not

"a per se invocation of that juvenile's Fifth Amendment rights under Miranda ." Id . at 727-28. The Court concluded that the "totality-of-th e-circumstances approach [was] adequate to determine whether there has been a waiver even where interrogation of juveni les is involved." Id . at 724-25. The factors enumerated in Fare for evaluation were: "the juvenile's age, ex perience, education, background, and intellig ence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendm ent rights, and the consequences of waiv ing those rights." Id . at 725.

Tennessee courts have adhered to the federal totality-of-thecircum stances

test when exam ining w aivers of Miranda

rights. See State v. Benton , 759 S.W .2d 427, 431 (Ten n. Crim. A pp. 1988 ) (adherin g to the to talityof-the-circumstances test as stated in North Carolina v. Butler ); see also State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994); State v. Van Tran , 864 S.W.2d 465, 472 (Tenn. 1993). The defendant, howev er, urges this Court to replace the totality-of-the-circ

umstances approach with the per se exclusionary rul e adopted by the New Hampshire Supreme Court in State v. Benoit , 490 A.2d 295 (N.H. 1985). In Benoit , the court required that a juvenile be informed of the poss ibility of a waiver of jurisdi ction into an adult court as a constitutional prerequ isite to the admission of a police statement. 2 Accordingly, the defendant would have this Court append a new and mandatory warning to the lit

any of established Miranda rights and warnings.11 The under

pinnings of Mirandaare to dissipate the compulsion inherent in custodial interrogati ons, to prevent coerced se lf-incrimination, and to pre vent relevant defendant ignorance. Moran v. Burbine , 475 U.S. 412, 425 (1986); Colorado v. Connelly , 479 U.S. 157, 167 (1986); State v. Stephenson , 878 S.W.2d 530, 547 (Tenn. 1994). Neither the United S tates Constitution nor the Tennessee Constitution mandates that a criminal suspect be apprised of every possible consequence of a Miranda waiver. See generally Colorado v. Spring , 479 U.S. 564, 574 (1987). Mor eover, neither the federal c onstitution nor the state constitution requires that a police officer admon ish a suspect concerning all possible methods of prosecution, modes of punishment, and maximum penalties. Whether a juvenile shall be prosecuted as an adult is a method of prosecution. Methods of prosecution are simply not w ithin the purview o

f law enforcement officials. Decisions concerning methods of prosecuti on and modes of punishment are legal decisi ons within the authority of the district attorneys and the courts. An officer's repr esentation as to either the mode of puni shment or the meth od of pro secution is prophe tic and po tentiall y misleadi ng. Accord ingly, neither the Tennessee Constituti on nor the United States Const itution requires police officers to inform juven iles of the possibility that they may be prosecut ed as adults.

TOTALITY O F THE CIRCUMSTA NCES
The defendant argues in the alternati ve that whether a juv

enile is informed of the possibility of being prosecuted as an adult should no w be a factor in the totality-of-the-circ

umstances test. His arg ument is premised on the asserti on "that a juvenile suspect cannot truly be aware of the consequences of waving his constitutional rights

without knowledge

of [sic] that adult punishment may be imposed." We disagree.3 W hile a w aiver ma y ultim ately le ad to a con viction , a wa iver n eithe r dicta tes th e m etho d of prose cution no r the m ode of p unishm ent. 12 Prosecution as an adult is not a conseq uence of a

waive r of Miranda rights. A consequence of a Mirandawaiver is "that any thing he says can be used against him in a court of law." Miranda , 384 U.S. at 444. Whethe r a juvenile may be prosecuted as an adult, however, is contingent upon the g ravity of the offense and the juvenile's backg round. See Tenn. Code Ann. § 37-1-134 (noting that juvenil es less than sixteen y ears of age may be prosecuted a s an adult for first degree murder and second degree murder). I n the case now before us, the defendant was prosecut ed as an adult as a consequence of committing a double homicide th at included a premeditated and deli berate killing and not as a consequence of waiving his Miranda rights. 3
We have held that warning a juv enile of the possibility

of being prosecuted as an adult is not requir ed for an effective Miranda waiver. Enumeratin g a warning that is not r

equired as a factor under the t otality-of-the-circumstances test is illogical and would in effect mandate the non-req uired warning. Accordi ngly, we hold

that juv enile w aivers shall be analy

zed unde r a total ity-o

fthe-circumstances test that requires considerati on of the following factors:
(1) consideration of all c ircumstances surrounding the interrogation including the juveni le's age, experience, education, and intelligence; (2) the juvenile's capacity to understand the Miranda warnings and the consequences of the waiver; (3) the juvenile's familiarity with Miranda warnings or the abi lity to read and write in the language used to give the warnings; (4) any intoxication;13 (5) any mental disease, disorder, or retardatio n; and (6) the presence of a parent, g uardian, or interested adult

.
These factors are sufficiently c apacious to encompass coerciv e tactics such as threatening a juvenil e with adult prosecutio n or promising leniency. While courts shall exercise special care in scrutinizing purported waivers by juvenile suspects, no single factor such as mental condition or education shou ld by itself render a confession unconstitutional absent coercive police acti

vity. Colorado v. Connelly , 479 U.S. 157, 167 (1986).

In the case now before us, the defendant does not allege that his w aiver was the result of coercion. The defendant was read his Mirandarights on several occasions. The de fendant reread his rights and verbally acknow

ledged that he understood his rig hts. He signed the Mirandaforms. Both the atmosphere of the interrogation and the defendant's demeanor were cal m. The defendant

was per mitted t o take a b reak and

was pr ovided a snack and a soft drink. He possessed abov e-average intelligence and was able to read and w rite in the language used to convey his Miranda rights. The defendant was not under the influence of any intoxic ants at the time of the waiv er and did not appear to be suffering from any mental disorde rs. His demeanor during his statement was calm, po lite, a nd coope rativ e. Accor dingly , we affi rm the tr

ial cou rt's fi nding o

f a voluntary, knowing, and intelligent waiver.
The judgment of the Court of Criminal Appeals af firming the trial court's judgment is affirmed. Costs of thi s appeal shall be taxed ag ainst the defendant, Nathan A llen Calla han, fo r which execu tion may is sue if ne cessary.14 JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Drowota, Birch, and Barker, J.J.