Session October 2, 2013.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed. Appeal by Permission from the Court of Criminal Appeals Criminal Court for Davidson County. No. 2008-D-3408. Cheryl Blackburn, Judge.
Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal); Melissa Harrison (at trial and on appeal); and Jessamine Grice (at trial), Assistant Public Defenders, for the appellant, Henry Floyd Sanders.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; Victor S. Johnson, III, District Attorney General; Sharon Reddick and Kristen Menke, Assistant District Attorneys General, for the appellee, State of Tennessee.
WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.
WILLIAM C. KOCH, JR., JUSTICE.
This appeal concerns the admissibility of incriminating statements made by a defendant to the mother of a sexually abused child while the mother was secretly cooperating with the police in their investigation of the abuse. After a grand jury indicted him on six counts of aggravated sexual battery and four counts of rape of a child, the defendant moved to suppress his recorded statements. The trial court denied the motion to suppress, and a jury convicted the defendant of five counts of aggravated sexual battery and four counts of rape of a child. The trial court imposed an effective forty-year sentence. The Court of Criminal Appeals affirmed the convictions and sentence. State v. Sanders,
No. M2011-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim. App. Oct. 9, 2012). We granted the defendant's Tenn. R. App. P. 11 application to address the legal standard courts should use to determine the admissibility of incriminating statements obtained by the parent of a victim of sexual abuse who is secretly cooperating with law enforcement officials investigating the child abuse charges. We find no violation of the defendant's constitutional right against compelled self-incrimination because the defendant merely misplaced his trust in a confidante to whom he voluntarily confessed. Therefore,
we find that the recording of these statements was admissible.
In 2003, Henry Floyd Sanders met and began a relationship with L.S. when they were both living in southern Mississippi. At some point, Mr. Sanders and L.S. began living together, along with L.S.'s five-year-old daughter, A.S. In 2005, L.S. gave birth to Mr. Sanders's son. Following the devastation of the Gulf Coast by Hurricane Katrina in 2005, Mr. Sanders, L.S., and the two children moved to Nashville.
Both Mr. Sanders and L.S. were employed at the same big box retail store in Nashville. L.S. worked a night shift and was home with the children during the day. Mr. Sanders worked a day shift and took care of the children at night while L.S. was working. During the evenings when L.S. was absent, Mr. Sanders began touching A.S. inappropriately. These acts escalated over time to the point where Mr. Sanders regularly engaged in sexual conduct with A.S.
Mr. Sanders and L.S. ended their relationship in January 2007. Mr. Sanders moved into an apartment, and L.S. and the children moved into a duplex. The children occasionally spent the night with Mr. Sanders at his apartment. At this point, A.S., who was in the third grade, began seeing the school guidance counselor. A.S. later testified that she had developed a " real bad anger problem," and wanted advice regarding conflicts with her mother. During her second visit with the counselor, A.S. revealed that she was " getting sexually abused" by Mr. Sanders. Based on A.S.'s statements, the Metropolitan Police Department and the Department of Children's Services (" DCS" ) started an investigation.
When Mr. Sanders's conduct first came to light, L.S. was " in denial" and " didn't want to . . . believe that the father of my son had done these things to my daughter." After A.S. revealed additional details about Mr. Sanders's conduct, L.S. decided that she wanted to talk with Mr. Sanders face-to-face " for closure purposes" and to find out whether Mr. Sanders would admit to engaging in the conduct described by A.S. Accordingly, she agreed with Detective Josh Mayo's suggestion that she wear a concealed microphone during her conversation with Mr. Sanders.
On April 24, 2008, L.S. and Mr. Sanders talked for one hour and forty-four minutes in the front yard of her home. Mr. Sanders drove there in his car, and he stood near his car the entire time. L.S. was wearing a concealed microphone, and Detective Mayo and another officer were listening to and recording the conversation in an unmarked police car parked nearby. The children were in the house and did not participate in the conversation. Detective Mayo called L.S. three to five times during the conversation to encourage her to stay calm and to remind her to ask Mr. Sanders about some of the important details that A.S. had provided in her interview with DCS.
L.S.'s tone during her discussion with Mr. Sanders was, at times, stern, but it was never heated or argumentative. She told him that " there are a lot of allegations right now about this" and that " I already know what happened; I need to hear it from you." Even though both DCS and the police had already started their investigations,
L.S. led Mr. Sanders to believe that she could prevent the matter from going any further by not taking A.S. to an upcoming interview with DCS. She told Mr. Sanders that she had " the power to stop this thing" but that she needed Mr. Sanders to " be honest . . . about what happened." L.S. also told Mr. Sanders that " [t]his is in my hand . . . I need closure to this, that's all I want."
Mr. Sanders initially told L.S. that " [i]t did not happen." He denied sexually abusing A.S. and insisted that he could not have raped A.S. because he was impotent as a result of diabetes and colon cancer. He attributed A.S.'s sexual knowledge to the facts that the children had seen him naked when he was getting out of the shower and that A.S. had entered the bathroom one time while he was masturbating. L.S., clearly frustrated with these answers, responded that " [y]ou might as well just flat out be honest with me." She also warned Mr. Sanders that if he did not tell the truth, he would see his face on the television news.
Eventually, Mr. Sanders conceded that he first started touching A.S. inappropriately as she was getting out of the bathtub. Mr. Sanders also admitted that when he was drinking, he and A.S. would " wrestle" when she was wearing only her underwear or sometimes when she was naked. He also admitted that he had " laid on" A.S. in an inappropriate way when they were wrestling and that he had touched A.S.'s " private area" on occasions when she was sitting on his lap and when they were wrestling.
Later in the conversation, Mr. Sanders told L.S. he touched A.S. inappropriately when she crawled on top of him and that occasionally A.S. would kiss him on the mouth. He sad that A.S. was " very curious" and that she initiated sexual activities with him, but that he never went so far as to honor the nine-year-old's requests to have sexual intercourse.
As the conversation wound down, Mr. Sanders asked L.S. for mercy and thanked her for talking with him. The conversation ended with L.S. telling Mr. Sanders that she would " think about" what she would do next. Mr. Sanders replied, " thank you for talking anyway."
One month later, L.S. placed a telephone call to Mr. Sanders while the police recorded their conversation. Mr. Sanders admitted nothing during their conversation. Thereafter, the police requested Mr. Sanders to talk with them. During the meeting on May 20, 2008, at the Nashville Criminal Justice Center, Mr. Sanders admitted nothing and declined to provide a DNA sample.
On October 21, 2008, a Davidson County grand jury indicted Mr. Sanders on six counts of aggravated sexual battery in violation of Tenn. Code Ann. § 39-13-504 (2010) and four counts of rape of a child in violation of Tenn. Code Ann. § 39-13-522 (2010 & Supp. 2013). Mr. Sanders entered a not guilty plea and later moved to suppress his recorded conversation with L.S. He argued that the admission of the recording violated due process and his constitutional privilege against self-incrimination. He insisted that L.S. was acting as an agent of the State when she talked with him on April 24, 2008 outside her home and that L.S. had overcome his will during that conversation and coerced him into making a false confession.
The Criminal Court for Davidson County held a suppression hearing on September 29, 2010. Both L.S. and Detective Mayo testified. Following the hearing, the trial court declined to suppress Mr. Sanders's statements. The trial court decided that even though L.S. was cooperating with the police, " she had an independent
motivation to participate in the body wire," and thus did not qualify as a government agent. The court found it " completely reasonable that a parent would be independently motivated to confront their child's alleged molester to try to find out what happened to their child." Even if the mother qualified as a state agent, the court said, the mother's statements to Mr. Sanders during their conversation did not coerce Mr. Sanders into confessing against his will.
Mr. Sanders's trial commenced on January 31, 2011. The State's first witness, A.S., testified in detail about how Mr. Sanders had sexually molested her. During Detective Mayo's testimony, the State introduced the conversation between L.S. and Mr. Sanders that was recorded on April 24, 2008. Because of technical problems, the jury heard only the first half of the actual recording. Detective Mayo read the remainder of the recording to the jury using a transcript of the conversation.
Prior to closing arguments, the trial court granted Mr. Sanders's motion for a judgment of acquittal on one of the aggravated sexual battery counts. The jury later found Mr. Sanders guilty of all the remaining counts -- five counts of aggravated sexual battery and four counts of rape of a child. On March 23, 2011, the trial court denied Mr. Sanders's motion for a new trial and imposed an effective forty-year sentence.
Mr. Sanders appealed, and the Court of Criminal Appeals upheld his convictions and sentence. State v. Sanders, No. M2011-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim. App. Oct. 9, 2012). On February 15, 2013, this Court granted Mr. Sanders's application for permission to appeal and docketed his case together with State v. Fred Chad Clark II,
No. M2010-00570-CCA-R3-CD, 2012 WL 3861242 (Tenn. Crim. App. Sept. 6, 2012), another case ...