IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 18, 2015 Session

STATE OF TENNESSEE v. BLAKE EDWARD CHILDRESS

Appeal from the Criminal Court for Hamblen County

No. 12CR257 John F. Dugger, Jr., Judge

No. E2014-02142-CCA-R3-CD – Filed November 25, 2015

_____________________________

Defendant, Blake Edward Childress, was convicted by a Hamblen County Jury of incest.

He was sentenced to six years in incarceration. On appeal, he argues that (1) the trial 

court improperly denied a motion to suppress; (2) the trial court improperly allowed 

introduction of evidence of prior bad acts; and (3) the evidence was insufficient to 

support the conviction. After a review, we determine Defendant properly invoked his 

right to counsel and, thereafter, was improperly subjected to continued discussion by a 

detective that produced an incriminating response. Consequently, the subsequent 

confession by Defendant was obtained in violation of his Fifth Amendment right to 

counsel, and the trial court should have granted the motion to suppress. We determine 

the subsequent introduction of the confession at trial was not harmless error, and the 

judgment of the trial court is reversed and remanded for new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD 

WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

W. Joe Bell, Knoxville, Tennessee, for the appellant, Blake Edward Childress.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Senior Counsel; and 

Dan Armstrong, District Attorney General, for the respondent, State of Tennessee.

OPINION

This is Defendant‟s direct appeal from his conviction in Hamblen County for the 

crime of incest.
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Factual and Procedural History

A police report was filed on January 31, 2011, in Morristown, Tennessee. The 

report alleged that Defendant committed incest against his half-sister1, M.B.2, during an 

incident that occurred around Thanksgiving of 2011 when the victim was sixteen and 

Defendant was twenty-two. Defendant was indicted by the Hamblen County Grand Jury 

for incest. 

Motion to Suppress

Prior to trial, Defendant filed a motion to suppress. At the hearing, Detective 

Christian Newman of the Morristown Police Department testified that she was 

responsible for investigating a complaint made by Defendant‟s half-sister to a counselor 

and reported to the police by the counselor. The report indicated that the victim was first 

“molested” by Defendant at the age of seven. Defendant moved into her home 

temporarily when she was sixteen, and Defendant started abusing her again at that time 

by forcing her “to perform oral sex on him.” 

Detective Newman met with the victim prior to meeting with Defendant. She 

explained it was the policy of the Morristown Police Department that no audio or video 

recording was taken during interviews of suspects. At the time she met with Defendant,

he was incarcerated on unrelated charges. Detective Newman spoke with Defendant in 

the attorney room, taking “basic personal history” and eventually “read[ing] him his 

Miranda rights and explain[ing] that to him and ask[ing] him if he would agree to talk to 

me, and he did agree to talk to me and signed that waiver at that time.” After telling 

Defendant why she was there, his “face turned red.” Defendant initially denied the 

allegations until, at one point, he stated he would “talk . . ., but [he] want[ed] to run it by 

an attorney first.” At that point, Detective Newman‟s questioning was “done” but she 

proceeded to ask Defendant a “logistical question”

3

about whether he would be willing to 

submit to a lie detector test. Defendant said “No.” Detective Newman commented, “[I]f 

what [the victim] is saying is true, you shouldn‟t take the test. . . .” At that point, 

Defendant told Detective Newman, “I‟ll tell you now what happened, but I won‟t write 

anything down, and I won‟t sign anything.”

 

1 Defendant and M.B. have the same mother and different fathers.

2

It is the policy of this Court to refer to victims of sexual offenses by their initials.

3 Detective Newman explained that it was a “logistical question” in the sense that Defendant was 

incarcerated in Hamblen County at the time and she would “have had to make arrangement with the 

Morristown Police Department . . . [to] transport [Defendant] for the test.”
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Defendant proceeded to tell Detective Newman his version of the events that took 

place around Thanksgiving. According to Defendant, the victim was intoxicated and 

performed oral sex on him. Defendant claimed that it was her idea. Immediately after 

Defendant finished talking, Detective Newman took handwritten notes. In part, they 

stated:

What [the victim] said happened is what happened. I said, [“]Oral sex?[”]

And he said, [“]She came downstairs and came to me.[”] I told him that 

[the victim] said it happened two times in the fall of 2011[,] and he said that 

was right. I asked if [he] performed oral sex on [the victim,] and he said, 

[“]I never touched her. She did it to me.[”] I asked if [the victim] put her 

mouth on his penis and he said, [“]Yes.[”] He said it happened in the 

basement and he had felt real bad since he did that. He went on to say that 

he had been suicidal in the past and felt like he needed to go to Lakeshore. 

I told him that he needed to see the jail nurse.

. . . .

When he was telling me what happened[,] he said that [the victim] was 

intoxicated and came onto him.

Defendant testified at the hearing on the motion to suppress. He claimed that the 

detective did not read him the waiver of rights “word for word.” At the time, he thought 

that he was being questioned about “something that [he] had already been questioned 

about with [his] daughter.” He was “surprised” when Detective Newman informed him it 

was about his step-sister. Defendant insisted that he told Detective Newman that he 

“wanted to speak with a lawyer” but that the questioning did not stop. Defendant 

emphatically testified that the contents of Detective Newman‟s statement were “not what 

I said.” 

The trial court determined that Defendant “clearly knew his rights” and “invoked 

his right to counsel . . . , when [Defendant] said [he] want[ed] to talk to his attorney first.” 

However, Defendant “initiated the response, initiated his statement and agreed, at that 

time, to basically waive his Miranda rights and give a statement, and that he did so 

voluntarily.” The trial court denied the motion to suppress, deeming the case a “matter of 

credibility for the jury to determine who they believe.”

Trial

At trial, Detective Newman testified that she had worked for the Morristown 

Police Department for twenty-six years. The police report that initiated the investigation 

was filed by Dr. Reno, a clinical psychologist from Knoxville, Tennessee. As a result of 
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the report, Detective Newman contacted the victim, and Defendant was identified as the

suspect. 

As explained at the hearing on the motion to suppress, Detective Newman spoke 

with Defendant, who was already incarcerated on unrelated charges. Detective Newman 

first read Defendant his Miranda rights. Defendant signed a waiver of rights. Detective 

Newman informed Defendant of the allegations. Defendant‟s “face turned red, he kind of 

acted scared like - - well like a deer in headlights. . . .” Defendant initially denied the 

allegations, then asked to “run it by” his attorney. 

At that point, Detective Newman ceased questioning. Defendant “reinitiated the 

conversation,” telling Detective Newman that the victim performed oral sex on him but 

that it was consensual and initiated by the victim. Defendant confirmed that he placed his 

penis into the victim‟s mouth in the basement of the home that belonged to their mother.

The victim and Defendant‟s mother, S.S.,4testified. She confirmed that 

Defendant, his infant child, and the mother of the child moved in to her basement for a 

while prior to the incident. S.S. was going through a divorce at the time and described 

the relationship with her husband at the time as “not good.”

M.B. testified that she was born in 1995. At the time of the trial she was eighteen 

years of age. At the time of the incident, she was sixteen. The victim testified that 

around Thanksgiving, she was downstairs hanging out with Defendant “because that‟s 

where his room was at that time.” They were playing Nintendo. Defendant “turned the 

TV off and he told [her] to give him a blow job.” The victim said “no” and tried to leave. 

Defendant would not let her leave. He “pulled his pants down” and “his penis was erect.” 

Defendant “forced [her] head down on his penis.” She described it as “kind of a 

struggle” but she “just gave in to get it over with.” Defendant ejaculated in her mouth at 

about the same time she heard her parents return home. She went upstairs. She did not 

tell anyone about the incident until mid-January because she did not want to cause a 

“disturbance” in the household. The victim told Dr. Reno after Defendant moved out,

and Dr. Reno reported the abuse to the police.

The victim‟s father testified on behalf of the defense at trial. He recalled 

Defendant living with them off and on in the fall of 2011 “depending on if he was there, 

staying there or not, or if he was incarcerated at the time.” He testified that Defendant 

did not have a job and often stayed out at night and slept during the day. He did not think 

Defendant was living at the house at the time the victim reported the incident. At the 

time of trial, the victim‟s father and S.S. were divorced.

 

4 We have chosen to refer to the mother of the victim and Defendant by her initials in order to 

protect the identity of the victim.
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Defendant testified at trial. He explained that he lived at home with his mother in 

the fall of 2011. He normally stayed “up all night” and slept most of the day. He was not 

working the majority of the time he was staying at the house. In his free time he liked to 

“produce music and record music with a couple of friends.”

Defendant testified that on November 24, 2011, the date of the alleged incident, 

his mother was home all day. She asked Defendant and his friend to pick up the victim 

from her friend‟s house. After Defendant and his friend picked up the victim, they 

returned to the house where everyone ate together. Defendant left after eating “take-out 

from a place in Jefferson City” and spent the night with his friend. The next day he could 

not recall specifically what he was doing but thought that he was sleeping at his friend‟s 

home.

Defendant recalled talking to Detective Newman at the jail while “he was 

incarcerated” for a violation of misdemeanor probation. Defendant also admitted that he 

had prior charges for reckless endangerment and aggravated assault with a firearm. 

Defendant “pled guilty” to those felonies because he “did them.”

Defendant admitted that he signed the waiver before he knew what Detective 

Newman came to talk to him about at the jail. Once she explained the allegations, 

Defendant was “hurting” and wanted to talk to an attorney. Defendant called Detective 

Newman a “liar” and denied making any of the statements to the Detective after he 

invoked his right to counsel. He claimed the “allegations are a lie. There had never been 

nothing [sic] going on before.” 

At that point, counsel for the State argued that Defendant “opened the door for the 

state to put on evidence of other acts. . . .” The trial court determined Defendant “opened 

the door the way he answered the question.”

The State called the victim in rebuttal. The victim testified that there were other 

incidents that occurred when Defendant moved back in to the house in September. The 

victim explained that “this [abuse] happened when I was a child, and [Defendant] brought 

that up that night [when he moved back in to the house] and asked how I felt about that 

and if I would like those things could happen again. . . .” The victim described another 

incident wherein Defendant was in her bedroom and asked for a “blow job.” The 

victim‟s younger brother knocked on the door interrupting Defendant, and Defendant left 

the room. Defendant denied these additional allegations.

The jury found Defendant guilty of incest. After a sentencing hearing, the trial 

court sentenced Defendant to six years in incarceration as a Range I, standard offender. 

Defendant appeals, arguing that the trial court improperly denied the motion to suppress; 
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that the evidence was insufficient; and that the trial court improperly allowed evidence of 

Defendant‟s prior bad acts when he claimed that nothing had ever happened between him 

and the victim.

Analysis

Motion to Suppress

On appeal, Defendant argues that the motion to suppress should have been granted

because he properly invoked his right to counsel and Detective Newman continued the 

interrogation in a manner intended to elicit incriminating statements. The State insists 

that Defendant waived Miranda rights after invoking his right to counsel because he 

responded to Detective Newman‟s “non-interrogatory question about whether he would 

submit to a polygraph examination.” According to the State, the question was not 

designed to elicit an incriminating response, and any confession by Defendant was 

voluntary and spontaneous.

In reviewing a trial court‟s ruling on a motion to suppress, this Court will uphold 

the trial court‟s findings of fact “unless the evidence preponderates otherwise.” State v. 

Bell, 429 S.W.3d 524, 528 (Tenn. 2014) (citing State v. Climer, 400 S.W.3d 537, 556 

(Tenn. 2013)). Witness credibility, the weight and value of the proof, and the resolution 

of conflicts in the proof “are matters entrusted to the trial court as the trier of fact.” Id. at 

529. “The party prevailing in the trial court 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 that evidence.” State v. Binette, 33 S.W.3d 215, 217 

(Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The trial court‟s 

resolution of questions of law and application of the law to the facts are reviewed de novo 

with no presumption of correctness. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008). 

When reviewing a trial court‟s ruling on a motion to suppress, this Court “may consider 

the entire record, including not only the proof offered at the hearing, but also the 

evidence adduced at trial.” State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012) 

(citing State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998)). 

The United States and Tennessee Constitutions protect a suspect from “being 

compelled to give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn. 

2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9); see also State v. Turner, 

305 S.W.3d 508, 515 (Tenn. 2010). When a defendant is in custody5and subject to 

 

5 Merely being in custody on another charge does not automatically trigger the “in custody” 

portion of the Miranda requirement. State v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim. App. 1998).

[A]n inmate is not in custody for Miranda purposes unless there is an added imposition 

on the inmate‟s freedom of movement. Relevant to this determination is (1) the language 
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interrogation, the police must first inform him of his Fifth Amendment rights in order for 

his confession to be admissible as substantive evidence in the trial of the matter. See 

Miranda v. Arizona, 384 U.S. 436 (1966). Encompassed within the federal and state 

constitutional provisions is the right to counsel. See id. at 444. “[A]fter a knowing and 

voluntary waiver of the Miranda rights, law enforcement officers may continue 

questioning until and unless the suspect clearly requests an attorney.” Davis v. United 

States, 512 U.S. 452, 455 (1994). In Davis, the United States Supreme Court adopted a 

significantly narrower standard for invoking a right to counsel under the Fifth 

Amendment when it held that “[i]nvocation of the Miranda right to counsel „requires, at a 

minimum, some statement that can reasonably be construed to be an expression of a 

desire for the assistance of an attorney.‟” 512 U.S. at 459 (quoting McNeil v. Wisconsin, 

501 U.S. 171, 178 (1991)).

“When a suspect invokes the right to counsel, police must cease questioning until 

counsel is present” or the suspect initiates further conversation with the police. State v. 

Saylor, 117 S.W.3d 239, 246 (Tenn. 2003) (citing Miranda, 384 U.S. at 444-45; Edwards 

v. Arizona, 451 U.S. 477 (1981); State v. Stephenson, 878 S.W.2d 530, 548 (Tenn. 

1994)). A suspect can invoke the right to counsel “in any manner and at any stage of the 

process[.]” Miranda, 384 U.S. at 444-45. As soon as the right to counsel is invoked, any 

later statement made by a defendant as a consequence of interrogation by police must be 

suppressed. Edwards, 451 U.S. at 487. In Davis, the United States Supreme Court stated 

that although it is a good policy for law enforcement to clarify whether a suspect has 

actually asked for an attorney when the suspect‟s request is ambiguous, it “decline[d] to 

adopt a rule requiring officers to ask clarifying questions.” Davis, 512 U.S. at 461. The 

Court explained, “If the suspect‟s statement is not an unambiguous or unequivocal 

request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-

62.

When a defendant in custody initially waives his right to counsel and insists that 

he later revoked that waiver, the defendant bears the burden of proving he revoked the 

waiver and clearly asserted his right to counsel. Turner, 305 S.W.3d at 519. Of course, 

the waiver must be made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. 

at 467. The test for voluntariness under the Tennessee Constitution is broader and more 

 

used to summon the inmate, (2) the physical surroundings of the interrogation, (3) the 

extent to which he is confronted with evidence of his guilt, and (4) the additional pressure 

exerted to detain the inmate. We agree that this standard is best suited to determine 

whether Miranda warnings must precede questioning in a prison setting, given the fact 

that a prisoner would always believe that he was not free to leave the prison.

Id. There is no question whether Defendant herein was in custody. In fact, Detective Newman made 

certain that Defendant understood this much by informing him of his rights. 
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protective of individual rights than under the Fifth Amendment. State v. Smith, 933 

S.W.2d 450, 455 (Tenn. 1996).

In this case, no one disputes that Defendant initially made a voluntary, knowing, 

and intelligent wavier of his rights to counsel and against self-incrimination prior to the 

interview with Detective Newman. Instead, Defendant argues that once he learned of the 

allegations against him he “unequivocally invoked his right to counsel under Miranda

and Edwards.” The trial court and the State agree but insist that even after invoking the 

right to counsel, Defendant spontaneously initiated further conversation with police 

wherein he confessed to the crime. 

Thus, the first question we must address in the case herein is whether Defendant 

unequivocally invoked his right to counsel after his initial Miranda waiver. The issue of 

whether a suspect‟s request for an attorney was unequivocal is a mixed question of law 

and fact that is subject to de novo review. Climer, 400 S.W.3d at 556 (citing Turner, 305 

S.W.3d at 514-15).6 In order to be unequivocal, a suspect is required to “articulate his 

desire to have counsel present sufficiently clearly that a reasonable officer in the 

circumstances would understand the statement to be a request for an attorney.” Davis, 

512 U.S. at 459; Turner, 305 S.W.3d at 516; Saylor, 117 S.W.3d at 246.

Bearing these tenants in mind, we turn to the case herein. After being confronted 

with allegations that he forced his half-sister to perform oral sex on him, Defendant told 

Detective Newman, “I will talk to you, but I want to run it by an attorney first.” We 

deem Defendant‟s statement a clearly communicated desire to consult with counsel and is

analogous to other statements deemed to be unequivocal invocations of the right to 

counsel. See, e.g., Edwards, 451 U.S. at 479 (“I want an attorney before making a 

deal.”); Turner, 305 S.W.3d at 522 (“Get me a lawyer.”); State v. Koffman, 207 S.W.3d 

309, 319 (Tenn. Crim. App. 2006) (“I want to call [a judge] and [a federal public 

defender].”); State v. Tidwell, 775 S.W.2d 379, 387 (Tenn. Crim. App. 1989) (“I‟d like to 

 

6

Seemingly contradictory, in State v. Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996), 

this Court stated that “[w]hether the suspect made an equivocal or unequivocal request for counsel is a 

question of fact.” In Turner, we recognized the common practice among this Court and noted:

In practice, however, our intermediate appellate court has more properly considered the 

issue as a mixed question of law and fact and has not afforded deference to the rulings of 

trial courts. This is consistent with the approach taken in other jurisdictions. In fact, we 

were unable to find any reported decisions from appellate courts outside of this state that 

have reviewed the nature of a request for counsel as purely a question of fact. See, e.g.,

People v. Porter, 9 N.Y.3d 966, 848 N.Y.S.2d 583, 878 N.E.2d 998, 999 (2007); State v. 

Dumas, 750 A.2d 420, 425 (R.I. 2000); Commonwealth v. Redmond, 264 Va. 321, 568 

S.E.2d 695, 697-98 (2002).

305 S.W.3d at 514.
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call a lawyer before I discuss that.”); State v. Michael Lee McCormick, No. E2003-

02689-CCA-R9-DD, 2004 WL 2583903, at *11 (Tenn. Crim. App. Nov. 15, 2004) (“I‟d 

be willing to [cooperate.] I‟d like to have a lawyer at this point.”), perm. app. denied

(Tenn. Mar. 21, 2005). Thus, the trial court correctly determined that Defendant 

unequivocally invoked his right to counsel. At that point, Detective Newman was 

constitutionally obligated to cease all questioning immediately.

Our inquiry, however, does not end as Detective Newman continued to address 

Defendant after he invoked the right to counsel. As mentioned above, Detective 

Newman asked what she described as a “logistical” question about Defendant‟s 

amenability to taking a lie detector test. Defendant replied, “No.” Detective Newman 

commented, “If what [the victim] is saying is true, you shouldn‟t take the test.” At that 

point, Defendant said he would “tell [the detective] now what happened, but [he] w[ould

not] write anything down and [he would not] sign anything.” According to Detective 

Newman, Defendant “began to talk . . . and he told his version of what had happened” at 

that point.

Once a suspect invokes his right to counsel under the Fifth Amendment, he or she 

“is not subject to further interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further communication, exchanges, 

or conversations with the police.” Edwards, 451 U.S. at 484-85. In Edwards, the United 

States Supreme Court essentially established a “second layer of prophylaxis for the 

Miranda right to counsel: Once a suspect asserts the right, not only must the current 

interrogation cease, but he may not be approached for further interrogation „until counsel 

has been made available to him . . . .‟” McNeil v. Wisconsin, 501 US 171, 176-77 (1991) 

(quoting Edwards, 451 U.S., at 484-85). This has been interpreted to mean that counsel 

must be present. Minnick v. Mississippi, 498 U.S. 146 (1990). If the police do 

subsequently initiate an encounter in the absence of counsel (assuming there has been no 

break in custody), the suspect‟s statements are presumed involuntary and therefore 

inadmissible as substantive evidence at trial, even where the suspect executes a waiver 

and his statements would be considered voluntary under traditional standards. This is 

“designed to prevent police from badgering a defendant into waiving his previously 

asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350 (1990). The Edwards

rule, moreover, is not offense specific. Said differently, at the point a suspect invokes the 

Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 

U.S. 675 (1988).

The voluntariness of a confession “remains distinct from Miranda.” State v. 

Climer, 400 S.W.3d 537, 567 (Tenn. 2013) (citing Dickerson, 530 U.S. at 434-35)). 

Because “coerced confessions are inherently unreliable,” only voluntary confessions may 

be admitted as evidence. Id. (citing Dickerson, 530 U.S. at 433). It has long been held 
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that for a statement to be voluntary, it “must not be extracted by any sort of threats or 

violence, nor obtained by any direct or implied promises, however slight, nor by the 

exertion of any improper influence.” State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980) 

(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)). “A defendant‟s subjective 

perception alone is not sufficient to justify a conclusion of involuntariness in the 

constitutional sense.” Smith, 933 S.W.2d at 455. Rather, “coercive police activity is a 

necessary predicate to finding that a confession is not voluntary.” Id. (quoting State v. 

Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)); see also State v. Downey, 259 S.W.3d 723, 

733 (Tenn. 2008) (noting that “for a confession to be involuntary, it must be the product 

of coercive state action”).

This is not a case where, after invocation of the right to counsel, questioning came 

from or statements were initiated by the defendant. See, e.g., Oregon v. Bradshaw, 462 

U.S. 1039, 1045-46 (1983) (concluding that the defendant‟s question, “Well, what is 

going to happen to me now?” evinced “a willingness and desire for a generalized 

discussion about the case” and “was not merely a necessary inquiry arising out of the 

incidents of the custodial relationship”); State v. March, 395 S.W.3d 738 (Tenn. Crim. 

App. 2011) (determining defendant did not invoke the right to counsel, was not being 

interrogated, and initiated conversation with detective over a two-hour period such that 

statements were not subject to suppression); State v. Ezra Shawn Ervin, No. E1999-

00287-CCA-R3-CD, 2001 WL 15832 (Tenn. Crim. App. Jan. 9, 2001) (holding that 

statement volunteered by defendant during his arrest that he “didn‟t rob that Krystal, that 

manager just don‟t like me” was admissible because it was not the result of interrogation 

and was initiated by the defendant), perm. app. denied (Tenn. June 4, 2001); State v. 

Ensley, 956 S.W.2d 502, 510-11 (Tenn. Crim. App. 1996) (determining that, when 

defendant was not in custody and “just started talking,” statements were admissible at 

trial). In these cases, the defendants effectively re-waived their rights by making new 

efforts to speak with the authorities without the functional equivalent of interrogation. 

In this case, the statements occurring after Defendant invoked his right to counsel 

came directly from the Detective, not Defendant. The United States Supreme Court in 

Rhode Island v. Innis provided the following guidance for lower courts:

[T]he term “interrogation” under Miranda refers not only to express 

questioning, but also to any words or actions on the part of the police (other 

than those normally attendant to arrest and custody) that the police should 

know are reasonably likely to elicit an incriminating response from the 

suspect. The latter portion of this definition focuses primarily upon the 

perceptions of the suspect, rather than the intent of the police. This focus 

reflects the fact that the Miranda safeguards were designed to vest a suspect 

in custody with an added measure of protection against coercive police 

practices, without regard to objective proof of the underlying intent of the 
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police. A practice that the police should know is reasonably likely to evoke 

an incriminating response from a suspect thus amounts to interrogation. 

But, since the police surely cannot be held accountable for the 

unforeseeable results of their words or actions, the definition of 

interrogation can extend only to words or actions on the part of police 

officers that they should have known were reasonably likely to elicit an 

incriminating response.

Innis, 446 U.S. at 301-02 (emphasis added). In Innis, the defendant was arrested as a 

suspect in the armed robbery of a cab driver; however, the defendant did not have a 

weapon in his possession at the time of his arrest. Id. at 294. On three separate occasions 

after his arrest, the police provided the defendant with Miranda warnings. Id. The third 

time the defendant met with an officer, he told the officer he understood his rights, and 

asked to speak with an attorney. Id. A police captain instructed three patrol officers to 

transport the defendant to the police station and that they were not to question, intimidate, 

or coerce the defendant. In the police car on the way to the station, two of the officers 

conversed about the missing gun, one expressing concern about the possibility that one of 

the children from a nearby school for handicapped children might find the missing 

weapon and hurt themselves. Id. When an officer remarked that “it would be too bad” if 

a little girl “pick[ed] up the gun and maybe kill[ed] herself,” the defendant interrupted the 

officers‟ conversation and revealed the location of the gun. Id. at 294-95. The United 

States Supreme Court rejected the defendant‟s argument that the officers‟ conversation 

amounted to interrogation because the “record in no way suggest[ed] that the officers‟

remarks were designed to elicit a response.” Id. at 302. Furthermore, no evidence 

suggested “that the officers were aware that the [suspect] was peculiarly susceptible to an 

appeal to his conscience concerning the safety of handicapped children.” Id. at 302. In 

other words, the suspect was not subjected to the “functional equivalent” of express 

questioning for purposes of Miranda. Id. at 303. Thus, Innis recognizes that express 

questioning is not necessary to trigger Miranda warnings, and that a conversation among 

officers within earshot of a suspect may constitute interrogation for purposes of Miranda 

when the suspect is in custody and the police are aware that their words or actions are 

reasonably likely to evoke an incriminating response. Id. In such cases, although an 

officer‟s intent may be relevant in determining “whether the officer should have known 

his or her words or actions were reasonably likely to invoke an incriminating response,” 

the primary focus rests “upon the accused‟s perception rather than on the police officer‟s 

intent.” State v. Sawyer, 156 S.W.3d 531, 534 (Tenn. 2005) (citing Innis, 446 U.S. at 

301). But see State v. Land, 34 S.W.3d 516, 524 (Tenn. Crim. App. 2000) (observing 

that “[i]t is well established that questioning initiated by the defendant is not interrogation 
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in the Innis sense” (citing Edwards, 451 U.S. at 484)).

7

 Thus, in order to determine if 

actions by the police constitute interrogation, 

we must remember the purpose behind [the] decision[ ] in Miranda . . . : 

preventing government officials from using the coercive nature of 

confinement to extract confessions that would not be given in an 

unrestrained environment.

Arizona v. Mauro, 481 U.S. 520, 529-30 (1987). But see State v. Andrew Mann, No. 

E2010-00601-CCA-R3-CD, 2012 WL 184157, at *7-8 (Tenn. Crim. App. Jan. 23, 2012) 

(determining officer‟s statement “[y]ou know exactly what you‟ve done,” after Defendant 

asked “what have I done” occurring prior to Miranda warning and notice of the charges 

against him did not amount to custodial interrogation reasonably likely to elicit an 

incriminating response such that defendant‟s action of “putting his head down and 

nodding yes” should be suppressed), perm. app. denied (Tenn. June 20, 2012).

Turning to the case herein, Detective Newman acknowledged at the hearing on the 

motion to suppress that her “questioning was done” at the point Defendant asked to “run 

it by an attorney.” Despite that acknowledgment, the detective continued the 

conversation by asking Defendant if he would be “willing to take a lie detector test,” in 

her estimation a “logistical question.” Defendant replied, “No.” Detective Newman 

continued, commenting, “[Y]ou know, . . . if what she‟s saying is true, you shouldn‟t take 

the test.” Only at this point did Defendant offer his version of the events. Looking at the 

circumstances surrounding the confession, we note that Defendant was already 

incarcerated on other charges and was being held in the attorney room at the courthouse. 

We have already determined there is no question that Defendant was in custody or that he 

had invoked his right to counsel. It is not necessary for us to determine whether merely 

asking whether Defendant would be willing to take a lie detector test qualifies as a 

question that a police officer should have known was reasonably likely to elicit an 

incriminating response in the Innis sense. However, when Detective Newman continued 

to comment that Defendant should not take the test if he committed the acts as alleged by 

the victim, the words of the officer were, in our opinion, likely to elicit an incriminating 

response. Therefore, this statement, made by Detective Newman after Defendant 

invoked his right to counsel, constituted custodial interrogation, especially in light of the 

fact that there was no distinct separation in time from the request for counsel and the 

 

7

Interestingly, the “questioning” need not even come directly from the government in order to 

constitute interrogation. See, e.g., Estelle v. Smith, 451 U.S. 454, 467 (1981) (questioning by courtappointed competency psychiatrist found to implicate the defendant‟s Miranda rights); Wilson v. 

O’Leary, 895 F.2d 378, 380-81 (7th Cir. 1990) (holding Miranda applicable where sheriff detained 

defendant against his will in a vacant lot so husband of victim could interrogate defendant). Cf. Arizona 

v. Mauro, 481 U.S. 520 (1987) (recorded meeting with wife after defendant invoked right to counsel was 

not the type of psychological ploy designed to constitute interrogation).
- 13 -

statements by the officer. In fact, Detective Newman testified that a mere three to four 

minutes elapsed from the invocation of counsel to the confession. Defendant‟s confession 

to Detective Newman was initiated by the detective‟s question and comment about the lie 

detector test. When Defendant responded to those statements, he specifically commented 

that he did not want to write anything down or sign anything, indicating his perception 

that he was under continued interrogation by the officer. We conclude that the statements 

made by Detective Newman violated Defendant‟s Fifth Amendment right to counsel, 

rendering Defendant‟s subsequent confession inadmissible. Consequently, we adopt the 

factual findings of the trial court as to what happened, but we reject the trial court‟s 

conclusion of law that those facts did not amount to a violation of the Fifth Amendment. 

Harmless Error

Having determined that statements made by Defendant during custodial 

interrogation should have been suppressed as a result of the Miranda violation, we must 

next determine whether the erroneous admission of these statements requires reversal of 

Defendant‟s conviction. Climer, 400 S.W.3d at 569. In conducting harmless error 

analysis, this Court has identified three categories of error: (1) structural constitutional 

error; (2) non-structural constitutional error; and (3) non-constitutional error. State v. 

Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). The erroneous admission of evidence 

obtained in violation of a defendant‟s Miranda rights is a non-structural constitutional 

error, and as such, is subject to the harmless error analysis. Arizona v. Fulminante, 499 

U.S. 279, 295-96 (1991) (holding that the admission of a coerced confession is subject to 

harmless error analysis and recognizing that federal circuit courts of appeal have held that 

the introduction of statements elicited in violation of Miranda is subject to harmless error 

analysis); Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir. 2008); State v. Bates, 804 

S.W.2d 868, 876 (Tenn. 1991); Koffman, 207 S.W.3d at 320. Non-structural 

constitutional errors do not require automatic reversal. Rodriguez, 254 S.W.3d at 371.

“However, the burden on the State to demonstrate that a non-structural constitutional 

error is harmless remains quite stringent. The existence of a non-structural constitutional 

error requires reversal unless the State demonstrates beyond a reasonable doubt that the 

error is harmless.” Id. The test is “whether it appears beyond a reasonable doubt that the 

error complained of did not contribute to the verdict obtained.” Id. (internal quotation 

marks omitted); see also Neder v. United States, 527 U.S. 1, 15 (1999); Chapman v. 

California, 386 U.S. 18, 24 (1967). 

The State‟s brief on appeal does not address whether the admission of Defendant‟s 

statements was harmless error presumably because the State concludes that Defendant 

voluntarily waived his rights and continued the conversation with the detective. 

Defendant, on the other hand, posits that the State‟s case rested squarely on Defendant‟s 

confession and that the confession was merely corroborated by the victim‟s testimony. 

While Defendant took the stand and denied the allegations, we note that there was no 
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other tangible or direct evidence as to guilt or innocence. While we recognize that a 

guilty verdict may rest entirely on circumstantial evidence, State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011), our determination of this issue does not turn on whether the 

remaining admissible evidence was sufficient to support the conviction for incest. 

Instead, we must determine “whether it appears beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” Climer, 400 S.W.3d at 570 

(quoting Rodriguez, 254 S.W.3d at 371 (internal quotation marks omitted)). 

A confession by a defendant has been described as “probably the most probative 

and damaging evidence that can be admitted against him.” Fulminante, 499 U.S. at 296 

(quoting Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J., dissenting)); see 

also Colorado v. Connelly, 479 U.S. 157, 182 (1986) (Brennan, J., dissenting) (observing 

that “[t]riers of fact accord confessions such heavy weight in their determinations that the 

introduction of a confession makes the other aspects of a trial in court superfluous”

(internal quotation omitted)); Miranda, 384 U.S. at 466 (Harlan, J., dissenting) 

(explaining that a confession is “the most compelling possible evidence of guilt” (citing 

Mapp v Ohio, 367 U.S. 643, 685 (1961)); Hopt v Utah, 110 U.S. 574, 584-85 (1884) 

(recognizing that a “voluntary confession of guilt is among the most effectual proofs in 

the law”); Deathridge v. State, 33 Tenn. 75, 78-79 (1853) (noting that “[g]reat weight and 

credit are justly due to a confession” that is “free and voluntary” because “we are to 

presume, in the absence of influence and motive, a person who is innocent of crime will 

not confess himself guilty”). 

Excluding the confession, the remaining evidence of Defendant‟s guilt could 

hardly be said to be overwhelming. Save the victim‟s testimony as to the events that took 

place at the house, nothing else points to Defendant‟s guilt. We conclude, after 

reviewing the record, the State failed to establish beyond a reasonable doubt that the 

erroneous admission of Defendant‟s statement did not contribute to the verdict. As noted 

in Climer, the State is not precluded from retrying Defendant for incest. At any future 

trial, Defendant‟s statements to Detective Newman would be inadmissible in the case-inchief, but could be admissible for impeachment purposes should Defendant take the stand 

at trial. 400 S.W.3d at 571 (citing Harris v. New York, 401 U.S. 222, 224-26 (1971) 

(stating that voluntary statements elicited in violation of Miranda are inadmissible in the 

prosecution‟s case-in-chief but may be used to impeach a defendant‟s credibility)). 

Accordingly, we reverse the judgment of the trial court and remand for a new trial.

Sufficiency of the Evidence

Defendant complains that the evidence was insufficient to support the conviction 

because there were no documents confirming the familial relationship, no physical 

evidence of the penetration, and no direct testimony to corroborate the allegations of the 

victim. Despite our determination that the confession was improperly admitted, we are 
- 15 -

obliged to review this issue with the evidence as presented at trial in the event of further 

appeal. 

The standard of review for sufficiency of the evidence is whether “after 

considering the evidence in a light most favorable to the State, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.” State 

v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000) (quoting State v. Buggs, 995 S.W.2d 102, 105 

(Tenn. 1999)). Questions concerning the “credibility of the witnesses, the weight to be 

given their testimony, and the reconciliation of conflicts in the proof are matters entrusted 

to the jury as the trier of fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) 

(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the 

jury, approved by the trial court, accredits the testimony of the witnesses for the State and 

resolves all conflicts in favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277 

(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

In this case, the evidence was sufficient to sustain a verdict for incest—sexual 

penetration, including fellatio, with a person‟s sister “of the whole or half-blood.” T.C.A. 

§§ 39-15-302(a), 39-13-501(7). The victim‟s mother testified that she was also the 

defendant‟s mother, establishing the relationship between the victim and Defendant. The 

victim testified the incident occurred around Thanksgiving and that at first she tried to 

struggle with Defendant and that she gave in to “get it over with.” The victim explained 

that during the incident, Defendant stuck his penis in her mouth and ejaculated in her 

mouth. A victim‟s testimony alone is sufficient to support a conviction. See, e.g., State 

v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). Defendant denied the 

allegations. The jury‟s role was to view the witnesses and assess their credibility. After 

doing so, they found sufficient evidence of guilt, accrediting the State‟s witnesses. The 

evidence was sufficient to support the conviction. 

Prior Bad Acts

Next, Defendant complains that his testimony that nothing ever happened between 

him and the victim did not open the door to rebuttal testimony by the victim. 

Specifically, Defendant argues that the victim was allowed to testify about uncharged 

instances of criminal sexual conduct by Defendant in violation of Tennessee Rule of 

Evidence 404(b). The State insists that Defendant opened the door to the testimony. We

are obliged to address the issue in the event of further appellate review in this matter.

Prior to trial, Defendant filed a motion in limine seeking to exclude evidence of 

“uncharged sexual conduct.” Attached to the motion was a copy of the victim‟s 

statement in which she alleged Defendant first touched her at the age of seven, by 

grabbing her breasts as well as touching and licking her vagina. The appellate record 

does not contain an order disposing of the motion or a transcript of the hearing on the 
- 16 -

motion. Defendant objected to the rebuttal testimony of the victim but did not request a 

404(b) hearing. 

Evidence of a defendant‟s prior crimes, wrongs, or acts may be admissible where 

it is probative of material issues other than conduct conforming with a character trait.

Tenn. R. Evid. 404(b). Thus, evidence of a criminal defendant‟s previous misconduct

may become admissible when it logically tends to prove material issues such as: (1) the 

use of “motive and common scheme or plan” to establish identity, (2) to establish the 

defendant‟s intent in committing the offense on trial, and (3) to “rebut a claim of mistake 

or accident if asserted as a defense.” McCary, 922 S.W.2d at 514. In order for such 

evidence to be admitted, the rule specifies:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or 

acts is not admissible to prove the character of a person in order to show 

action in conformity with the character trait. It may, however, be 

admissible for other purposes. The conditions which must be satisfied 

before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury‟s presence;

(2) The court must determine that a material issue exists other than conduct 

conforming with a character trait and must upon request state on the record 

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear 

and convincing; and

(4) The court must exclude the evidence if its probative value is outweighed 

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). 

In reviewing a trial court‟s decision to admit or exclude 404(b) evidence, an 

appellate court may disturb the lower court's ruling only if there has been an abuse of 

discretion. DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134 (Tenn.

Crim. App. 1990). Where the trial court has been called to pass upon the admissibility of 

evidence of other crimes, wrongs, or acts under Rule 404(b), its determination is entitled 

to deference when it has substantially complied with the procedural requisites of Rule 

404(b). See DuBose, 953 S.W.2d at 652.

In this case, Defendant objected to the rebuttal testimony but did not request a 

404(b) hearing. Defendant‟s brief references a pretrial hearing, but this hearing is not 
- 17 -

included in the record. It is the burden of the Appellant to prepare a full and complete 

record for appellate review. See Tenn. R. App. P. 24(b). Absent an adequate record, we 

are unable to review this issue unless there is plain error. In order to obtain plain error 

review, the defendant must show that:

(a) the record clearly establishes what occurred in the trial court; (b) a clear 

and unequivocal rule of law was breached; (c) a substantial right of the 

accused was adversely affected; (d) the accused did not waive the issue for 

tactical reasons; and (e) consideration of the error is “necessary to do 

substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)). “[T]he presence of all five factors must be 

established by the record before this Court will recognize the existence of plain error, and 

complete consideration of all the factors is not necessary when it is clear from the record 

that at least one of the factors cannot be established.” Id. at 283. Because trial counsel 

did not request a 404(b) hearing, it is not apparent that the trial court breached a “clear 

and unequivocal rule of law” by failing to follow the procedures of 404(b). The rule 

states that the trial court must hold a jury-out hearing upon request. Tenn. R. Evid. 

404(b)(1). While a trial court may sua sponte conduct a hearing, the language of the rule 

indicates that “the trial court was not obligated to conduct such a hearing absent a 

request.” State v. Hall, 958 S.W.2d 679, 707 (Tenn. 1997) (app‟x); see also State v. 

Jones, 151 S.W.3d 494, 498 n.3 (Tenn. 2004) (declining to consider whether evidence 

should have been excluded pursuant to 404(b) when the defendant failed to request a 

404(b) hearing). Because the defendant did not request a 404(b) hearing, the trial court 

was not obligated to conduct one. Because the defendant has failed to show all five plain 

error factors are satisfied, we need not consider the remaining factors. Defendant is not 

entitled to any relief on this issue.

Conclusion

For the foregoing reasons, the judgment of the trial court is reversed and remanded 

for new trial.

_________________________________

TIMOTHY L. EASTER, JUDGE