The first of the bodies was found in the woods off Cahaba Lane, in east Knox County, Tennessee, in October 1992, and on the night of October 21 a Knox County detective named Michael Upchurch drove to a mobile home in Sevier County with a Sevier County patrolman and four other officers. They were there for Thomas Dee Huskey, and the paper they carried was a capias from Knoxville City Court for failing to appear on a charge of solicitation of prostitution. His mother let them in. Upchurch testified that from the bedroom doorway his flashlight picked out a pair of women’s earrings and a necklace, and that the day before, the boyfriend of one of the dead women had told him she kept earrings in her purse. Within the week the remains of three more women had been found near the first. The State charged Huskey with the murders of Patricia Rose Anderson, Patricia Ann Johnson, Darlene Smith and Susan East Stone. In the Knox County jail that November he talked to Lieutenant Larry Johnson and Tennessee Bureau of Investigation Agent David Davenport, and the man who described the killings called himself “Kyle.” A statement taken on November 11 was signed “Phillip Daxx.”
The five opinions here follow what happened to that case, and none of them ends with a verdict. In 1998 the Tennessee Supreme Court held that once Huskey gave notice of an insanity defense the trial court could order him examined by the State’s experts, so long as what he said was used only to rebut his own evidence of a mental condition. The murder trial was moved to a jury chosen in Davidson County. It began deliberating on February 9, 1999, and three days later the foreman sent a note saying the jurors agreed he had a mental disease or defect and could not agree on what followed from it. The jury was discharged after its fifth day. In 2001 the Court of Criminal Appeals held that nothing in the way the jury was released barred a second trial, and in 2002 it reversed the trial court’s order removing Huskey’s lead lawyer, Herbert S. Moncier, over what the judge had called “an abuse of the legitimate functioning of the legal system.”
The last opinion is the one that decided the case, and in it the State is the party appealing. The trial court had thrown out Huskey’s statements and everything taken from his room, and on June 1, 2005, the Court of Criminal Appeals affirmed. The officers, it held, had not respected his refusal to talk on the night of his arrest, and after he asked for a lawyer on October 30 they had gone back to him on November 4, 5 and 9. The capias was void because it had not been issued in the name of the State of Tennessee, the Sevier County search warrant was invalid because it named no officer, and the father’s consent could not rescue a search that began with an unlawful arrest. The Tennessee Supreme Court declined to hear the case on October 31, 2005, and the district attorney, Randall E. Nichols, moved to dismiss the four murder counts. The Knoxville News Sentinel reported on November 1 that the case was over; another report gives March 11, 2006, as the day the charges were formally dropped. Huskey was never convicted of any of the four murders. Juries convicted him in the separate rape cases, and press accounts give his sentence as sixty-six years, though some say sixty-four.
Five rulings of the Tennessee Supreme Court and the Court of Criminal Appeals, printed in full, and not one of them decides whether Huskey killed anybody. Every appeal here was taken before a verdict, so what the judges weighed were questions of procedure: a court-ordered psychiatric examination, a hung jury, a lawyer’s removal, and finally whether the police had obtained their evidence lawfully. Most of what a reader learns about the arrest and the jail interviews comes from the 2005 opinion, and there it is the testimony of Lieutenant Johnson and Detective Upchurch at suppression hearings, set out by a court that went on to exclude the statements they described. The confessions attributed to “Kyle” were never heard by a jury that reached a verdict and cannot be treated as proof of anything. The rape cases, decided in a 2002 opinion the court cites as 2002 WL 1400059, are not in this file, and the opinions refer to those victims only as the victim.
These are published opinions from the official Tennessee reports, and as government works they are free to read, quote and reproduce. We have reduced four private people to initials. L.B. is the foreman who signed the jury’s note of February 12, 1999, and Ms. B. the juror the judge questioned when the jury said it could go no further. A.P. is the German woman whom “Kyle” claimed to have raped, a claim the 2001 opinion calls false; she was never a party to anything here. J.H. is Huskey’s mother, who testified about the night officers came to the door. The four women whose murders were charged keep their names, as do the judges, the lawyers, the doctors, the detectives, the Sevier County patrolman who shares Huskey’s surname and the Sevier County official, Bruce Baker, who signed the search warrant.
The text comes from the Harvard Law School Library’s digitization of the reports and was never scanned, so it needed no spelling repair and got none. We closed up twenty-four words the typesetter had broken across lines, some of them more than once, Moncier and Upchurch among them, where the opinions print the same word whole elsewhere. The reporter’s own slips stand: the 1998 opinion calls this a “death penalty ease,” the 2005 opinion has a detective saying Huskey “faded to appear,” “disassoeiative” appears four times, and in one place the 2002 opinion prints Moncier’s name welded to the next word as “Mon-ciermn December 21, 2001.” The second 1998 item is a 118-word order denying further rehearing, not an opinion.
STATE of Tennessee, Appellee, v. Thomas Dee HUSKEY, Appellant.
Supreme Court of Tennessee, at Knoxville.
March 9, 1998.
Rehearing Denied May 18, 1998.
Herbert S. Moncier, Gregory P. Isaacs, Knoxville, for Appellant.
John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, John H. Baker, III, Assistant Attorney General, Nashville, Randall Eugene Nichols, District Attorney General (at Trial), Professor Neil Cohen, Special Assistant Attorney General, Knoxville (at Trial), for Appellee.
[OPINION BY ANDERSON, Chief Justice. type=majority]
OPINION
ANDERSON, Chief Justice.
We granted interlocutory review in this death penalty ease to determine whether the trial court’s orders compelling the defendant to undergo a mental examination in accordance with Tenn. R.Crim. P. 12.2(c), and requiring disclosure to the prosecution of material related to the examination, violated the right to counsel or the right against self-incrimination under the United States or Tennessee Constitutions.
We recently held that where a defendant asserts an insanity defense or seeks to introduce testimony with regard to a mental condition, a court-ordered mental evaluation, and disclosure of materials from the evaluation, does not violate the right against self-incrimination provided that any statements made by the defendant during the evaluation, and any “fruits” derived from such statements, are admissible at trial against the defendant only for impeachment or rebuttal of an issue respecting mental condition on which the defendant has introduced testimony. We also held that a defendant does not have the right to the physical presence of counsel during a court-ordered examination. State v. Martin, 950 S.W.2d 20 (Tenn.1997); see Tenn. R.Crim. P. 12.2.
After reviewing the record, we conclude that our ruling in Martin controls much of the outcome of this case, and that the trial court’s orders did not violate the defendant’s rights under the United States or Tennessee Constitutions. The trial court’s judgment is affirmed and the case is remanded for trial.
BACKGROUND
The defendant, Thomas Dee Huskey, was indicted in case number 51908 for four counts of first-degree murder committed against four victims: Patricia Rose Anderson, Patricia Ann Johnson, Darlene Smith, and Susan East Stone. The prosecution filed notice of its intent to seek the death penalty for each offense. This appeal pertains solely to the four capital charges in case number 51903; however, we will review the salient portions of the entire record to place the issues in procedural context.
In March and April of 1994, Huskey filed notice of his intent to use expert testimony with regard to a mental condition and to rely on an insanity defense with respect to all the cases. When the State filed a motion to compel Huskey to undergo a mental examination under Rule 12, Huskey moved for a protective order requiring, among other things, that counsel and a defense expert be permitted to attend the examination and that the examination be recorded. Huskey argued that these measures were necessary to preserve his right to counsel and his right against self-incrimination.
The trial judge, Judge Ray Lee Jenkins, denied the motion for a protective order and entered three written orders in all cases compelling Huskey to undergo a mental examination at the Helen Ross McNabb Mental Health Center in Knoxville. Although orders were entered on May 17, 1994, May 8, 1995, and May 11, 1995, no examinations were conducted because the defense refused. Judge Jenkins later ruled that because of the refusal to be examined, the defense could not rely on an insanity defense or introduce expert testimony as to a mental condition in one of the non-capital cases, case number 49828, which was finally tried in October of 1995. Huskey was convicted of rape and related offenses.
With regard to the remaining cases, including the capital cases we are concerned with here, more hearings were held on the mental examination issues in February, April, and May of 1996. On May 2, 1996, Judge Baumgartner ordered that Huskey was to be examined by Dr. Clifton Tennison at the McNabb Mental Health Center. After a two-hour interview with Huskey, Tennison reported to the trial court that he needed more sessions with Huskey, additional background information, and also “someone with substantive experience and demonstrated expertise,” specifically in the field of disassoeiative identity disorder.
The trial court instructed Tennison to inquire into the availability of additional experts in the field after finding that someone with further expertise and experience was necessary to effectively complete the examination:
[Dr. Tennison] advised us that due to the nature of the illness that Mr. Huskey may suffer from, that he felt that he was not personally capable of providing the Court with the best evaluation that could be accomplished. And that he felt the appropriate thing for him to do within the discipline that he’s an expert in is to employ the services of an individual who was more qualified, had more experience, [and] had studied in this specific area of disassoeiative identity disorder.
At a later hearing, Tennison related the qualifications and experience of several experts in the field of disassoeiative identity disorder, including Dr. Phillip Coons, a psychiatrist in Indiana who had been brought to Tennison’s attention by the prosecution.
On May 9, 1996, the trial court ordered in all the cases that Huskey be examined by Tennison and Coons. The order required the examination to be recorded but stated that no one could be present during the examination unless approved by Tennison and Coons. The order required counsel for the State and the defense to make available Huskey’s medical records, employment records, school records, psychological/psychiatric records, and witnesses with knowledge of Huskey’s conduct. The order stated that upon completion of the examination, the defense would have “a reasonable period” in which to decide whether it intended to proceed with an insanity defense or evidence respecting a mental condition; if it did, the State would be provided with the “evaluation and test results from the examination.”
Huskey objected to the participation of Coons, and argued that the order violated his right to counsel, right against self-incrimination, and right to due process. With regard to the four capital cases, the trial court granted Huskey’s request for an interlocutory appeal of the May 9, 1996 order pursuant to Term. R.App. P. 9. After the Court of Criminal Appeals denied the appeal, we granted Huskey’s application for permission to appeal to this Court, finding that review of the May 9th order prior to conducting the examination would provide guidance to the trial court on these issues and avoid the possibility of serious errors that potentially would require retrials of four complex capital cases.
Because neither the defense nor the State sought a stay of the proceedings while the appeal was being sought, however, further events and hearings continued to unfold in the trial court. Although no examination was conducted pursuant to the May 9th order, the defense later moved that Huskey be examined by the Middle Tennessee Mental Health Institute (MTMHI) because MTMHI had conducted examinations with regard to disassoeiative identity disorder in prior cases. Hearings on this case culminated in the trial court entering an order on August 12, 1996, that expressly superseded its May 9th order.
The superseding August order directed that Huskey was to be examined at Middle Tennessee Mental Health Institute (MTMHI) to determine his “mental responsibility” at the time of the offenses. It provided that all “clinical interviews” with Huskey were to be videotaped, but that defense counsel or defense experts could not attend the examination process. The order stated that MTMHI was to direct any requests for additional assistance to Dr. Tennison, who was to report the request to the trial court. Unlike the May 9th order, the superseding order did not require disclosure of records and witnesses but “encouraged [prosecution and defense counsel] to cooperate with requests for information from [MTMHI], subject to the attorney-client or other applicable privileges.” Finally, the order provided that all information and opinions formed in the examination would be held confidential until the defense was given a copy of the report and also a reasonable period in which to determine whether to proceed with an insanity defense or expert testimony regarding a mental condition. The State was then to be given the “evaluation and test results” from the examination.
After beginning its examination, MTMHI notified Tennison that it required additional assistance with regard to disassociative identity disorder. At a later hearing, Tennison and Dr. Samuel Craddock, a psychiatrist with MTMHI, testified that further expert assistance was needed to complete the examination. The trial court once again instructed Tennison to inquire as to the availability of additional experts. When Tennison later informed the court of Dr. Richard Kluft, a psychiatrist from Philadelphia, Pennsylvania, the court considered Kluft’s qualifications and availability, and made the following findings:
[I]t is clear to the Court at this point in time, based on the record, that someone who has more experience, someone who is more versed in this area is needed to complete the evaluation process. What we have at this stage is an incomplete process which is not going to be of benefit to the Court or, ultimately, to the trier of fact in this case....
It appears to me, based on again Dr. Tennison’s testimony here today, that Dr. Kluft ... a medical doctor from the Philadelphia area ... [and] director of Disassociate Identity Disorder Center ... sounds to me to be the most appropriate individual; and also ... the most available at this stage of the proceedings, and I am going to ask Dr. Tennison to employ the services of Dr. Kluft for the purposes of completing this evaluation.
Over defense objections, the trial court conducted a teleconference with Kluft and then ordered that Huskey be examined by Kluft.
Huskey was examined by Dr. Kluft, subject to defense objections. On October 26, 1996, after Kluft’s examination, the trial court provided a copy of Kluft’s report to the defense. The report indicated that Huskey suffered from disassociative identity disorder and met the standard for insanity. On October 28, 1996, the trial court ruled that the defense had 48 hours in which to elect to proceed with a mental responsibility defense, after which the materials stemming from the examination would be disclosed to the State. The defense objected to the disclosure of the material and on October 29, 1996, sought a stay of the order from this Court.
In seeking the stay of the trial court’s order, Huskey for the first time advised this Court of the events that had transpired since the May 9th order; specifically, that the trial court had entered the August 12th superseding order, and that an examination had occurred. Despite the changed circumstances, we concluded that the reasons for granting interlocutory review remained valid:
After due consideration, this Court concludes that the reasons for reviewing the interlocutory appeal granted on October 7, 1996, remain valid, notwithstanding the fact that the defendant has now undergone an evaluation.... An interlocutory appeal will serve the interest of deciding complex issues before the trial proceeds, thus reducing the potential for a serious error that would necessitate a retrial. Moreover, this Court further concludes that the trial court ruling of October 28, 1996, granting the State access to records from the evaluation, is directly related to the right to counsel and self-incrimination issues this Court has already elected to review.
We therefore stayed the trial court’s order and the trial so as to complete our review of the issues presented in this interlocutory appeal.
MENTAL EXAMINATIONS
A defendant who seeks to rely on an insanity defense or introduce expert testimony with respect to a mental disease, defect or condition, must file notice prior to trial in accordance with Tenn. R.Crim. P. 12.2(a) and (b). When notice is filed, the prosecution may request that the defendant be compelled to undergo a mental examination “by a psychiatrist or the other expert designated for this purpose” by the court. Tenn. R.Crim. P. 12.2(c). The rules limit the use at trial of statements made by the defendant in the course of the court-ordered examination:
No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except for impeachment purposes or on an issue respecting mental condition on which the defendant has introduced testimony.
Tenn. R.Crim. P. 12.2(c). If a defendant fails to comply with a court-ordered examination, the trial court may preclude the defendant from relying on the insanity defense or introducing expert testimony as to a mental condition. Tenn. R.Crim. P. 12.2(d).
We observed in Martin, supra, that “there are obvious concerns generated when a defendant is compelled to undergo a mental examination at which he or she will, in all likelihood, discuss not only details of his or her life but also information about the charged offense.” Like the defendant in Martin, Huskey challenges the court-ordered mental examination as violative of his right against self-incrimination and his right to counsel under the United States and Tennessee Constitutions. Huskey also raises several issues with regard to the number and nature of examinations ordered by the trial court, as well as the trial court’s order granting discovery of materials and results stemming from the court-ordered examination to the prosecution.
SELF-INCRIMINATION
The Fifth Amendment to the United States Constitution provides in part that “no person ... shall be compelled in any criminal case to be a witness against himself.” Article I, § 9 of the Tennessee Constitution states that “in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself.” Although we may extend greater protection under our State Constitution, we have traditionally interpreted article I, § 9 to be no broader than the Fifth Amendment. See Martin, 950 S.W.2d at 22; State v. Frasier, 914 S.W.2d 467, 473 (Tenn.1996).
We observed in Martin that virtually every federal and state jurisdiction has held that where a defendant raises an insanity defense, a court-ordered psychiatric examination and the prosecution’s use of evidence from the examination to rebut evidence of a mental condition introduced by a defendant does not violate the Fifth Amendment privilege against self-incrimination. 950 S.W.2d at 24 n. 3 (collecting cases). We likewise found that a court-ordered mental examination does not violate article I, § 9 of the Tennessee Constitution, provided that any statements made by the defendant during an examination, and any “fruits” from such statements, are admissible at trial only for impeachment and to rebut any evidence respecting a mental condition introduced by the defendant. Id. at 24-25; see Tenn. R.Crim. P. 12.2(c).
Our reasoning was two-fold. First, as stated by the United States Supreme Court, “when a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that [the defendant] has interjected into the case.” Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981). As one commentator has summarized:
Once either or both notices are filed [by a defendant], the court, upon motion of the prosecution, can order the defendant to submit to a psychiatric examination by a psychiatrist designated by the court. This provision is the key to the notice requirement because the prosecution would be placed at a serious disadvantage if it could not introduce its own expert testimony, based upon the examination of the defendant, in response to the alleged lack of responsibility due to mental condition.
Wayne R. LaFave, Criminal Practice and Procedure, § 19.4 at 517.
Second, the admissibility of the defendant’s statements made during an examination at trial is expressly limited to impeachment or rebuttal of the mental condition evidence introduced by the defendant. “In other words, such material may not be used by the prosecution to prove the guilt of the defendant and may not be used if the defense does not introduce testimony at trial on mental condition.” Martin, 950 S.W.2d at 24-25; LaFave, supra, § 19.4 at 517-18.
In this ease, Huskey initiated Rule 12 proceedings by properly filing notice of his intent to rely on expert testimony as to a mental condition and the defense of insanity. The prosecution moved the trial court to order Huskey to undergo a mental examination. After numerous hearings, Judge Baumgartner required Huskey to submit to a mental examination.
Under Martin, supra, and the overwhelming weight of state and federal authority, such a procedure did not in and of itself violate the defendant’s right against self-incrimination. It is now incumbent upon the trial court and the parties to adhere to the protections built into Tenn. R.Crim. P. 12.2(c): any statements made by Huskey during the examination, any expert testimony based on such statements, and any “fruits” derived from the statements are admissible at trial against the defendant only for impeachment or rebuttal of evidence of mental condition or insanity introduced by the defendant. These limitations ensure full protection of the defendant’s right against self-incrimination.
RIGHT TO COUNSEL
The Sixth Amendment to the United States Constitution and article I, § 9 of the Tennessee Constitution guarantee the right to the assistance of counsel at critical stages “where counsel’s absence might derogate from the defendant’s right to a fair trial.” The right to counsel “preserves the defendant's basic right to a fair trial as affected by [the] right meaningfully to cross examine the witnesses ... and to have effective assistance of counsel at the trial itself.” Martin, 950 S.W.2d at 25 (quoting, United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967)).
In Martin, we joined the majority of jurisdictions in holding that a defendant does not have the right to the physical presence of counsel during a court-ordered mental examination:
[W]e agree with the courts which have distinguished the ‘critical stage’ prior to a psychiatric examination from the examination itself. We are convinced that the examination differs in purpose and procedure from other stages of the adversarial system, and that counsel’s physical presence in a strictly passive, observational capacity, is not necessary to protect the defendant’s related rights to a fair trial and to confront witnesses. In particular, the defendant has access to the information and results generated by the mental examination, as well as the right to interview, subpoena, and cross-examine the experts with regard to their methodology, opinions, and results.
950 S.W.2d at 26-27. In contrast, a defendant does have the constitutional right to counsel in making the decision whether to assert a mental condition defense and thereby submit to a psychiatric examination. Id. at 25 (citing, Estelle v. Smith, 451 U.S. at 470-71, 101 S.Ct. at 1877; Satterwhite v. Texas, 486 U.S. 249, 254, 108 S.Ct. 1792, 1796, 100 L.Ed.2d 284 (1988); Powell v. Texas, 492 U.S. 680, 685, 109 S.Ct. 3146, 3150, 106 L.Ed.2d 551 (1989)).
In this capital case, the trial court’s May 9th order deferred the question of the presence of counsel or a defense expert to the mental evaluators, and the August 12th order precluded counsel or a defense expert from being present at the examination. Although not constitutionally required, the trial court’s orders required recording of all the examinations of Huskey, a measure we endorsed and encouraged in Martin to “preserve evidence and to enhance the accuracy and reliability of the truth-seeking function of the trial.” 950 S.W.2d at 27. This issue is controlled by Martin. The trial court’s orders did not violate Huskey’s right to counsel under the United States or Tennessee Constitutions.
MULTIPLE EXAMINATIONS
In addition to the Martin issues, the defendant challenges the number and nature of the trial court’s orders compelling the mental examination. He contends that Rule 12.2(c) limits the prosecution to a single examination, regardless of whether the examination yields a particular conclusion or result.
The record shows that the trial court initially ordered a mental examination to be conducted by Dr. Tennison of the McNabb Mental Health Center. After conducting a two-hour interview with Huskey, Dr. Tennison told the trial court that he could not complete an examination without more information and additional expert assistance. After additional hearings, the trial court, on May 9,1996, ordered Huskey to be examined by Tennison and Dr. Phillip Coons. When this examination never took place, because of the refusal by the defense, additional hearings culminated in the August 12th superseding order that required Huskey to be examined by Dr. Tennison and experts at MTMHI.
The superseding order contained numerous safeguards: officials were ordered to determine only Huskey’s mental responsibility at the time of the offense; all clinical interviews with Huskey were to be recorded; requests by MTMHI for information were subject to the attorney-client or other applicable privileges; and the defense was to receive a copy of the examination results and a period of time in which to determine whether it would proceed with its mental condition defense prior to disclosure of any material to the prosecution. While Huskey consented to the examination pursuant to this order, the examination once again could not be completed. Tennison and Dr. Craddock of MTMHI informed the trial court that additional expert assistance was needed to complete the examination. The trial court then ordered that Huskey was to be examined by Dr. Kluft. This examination took place as ordered, and Kluft rendered his findings and opinions.
We do not interpret Tenn. R.Crim. P. 12.2(c) so narrowly as to allow only a single interview. See Martin, 950 S.W.2d at 21; see also State v. Lovelace, 191 Conn. 545, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984)(discretionary with trial court). The record reflects that Dr. Tennison was unable to complete the examination and candidly informed the trial court that he needed additional assistance. Dr. Craddock of MTMHI also was unable to complete an examination and requested assistance. Dr. Kluft, an expert in disassociative identity disorder, was located and was able to complete the examination. Accordingly, the trial court monitored the proceedings, carefully considered the expert testimony, and, based on the evidence, ensured that the defendant was subjected to a complete examination. We conclude there was no abuse of the trial court’s discretion.
DISCOVERY
Much of Huskey’s argument is aimed at the trial court’s orders allowing disclosure of material relating to the court-ordered examination under Rule 12.2(c) to the prosecution. His primary contention is that discovery of materials related to expert testimony is governed by Tenn. R.Crim. P. 16, and that the State is not entitled to materials relating to the examinations conducted by Dr. Tennison, MTMHI experts, or Dr. Kluft, unless the defense presents these experts as witnesses. The trial court ruled that Rule 12.2(c) was not limited by Rule 16. We agree.
In Martin, we said that restricting disclosure of the results of a court-ordered examination under Rule 12.2(c) “begs the question of how the prosecution would recognize appropriate impeachment or rebuttal without access to the material.” 950 S.W.2d at 25. Our conclusion was based on the context and purpose of a court-ordered evaluation Rule 12.2(c):
It would be most anomalous to say that a defendant may advance the defense of insanity, have himself examined by his own experts and then invoke the constitutional guarantees against self-incrimination for the purpose of preventing examination by the state. [Citation omitted]. It would be a strange doctrine, indeed, to permit a person charged with a crime to put in issue his want of mental capacity to commit it, and in order to make his plea invulnerable, prevent all inquiry into his mental state or condition.
Id. at 24 (quoting, State v. Whitlow, 45 N.J. 3, 210 A.2d 763, 767 (1965)).
The defendant’s reliance on discovery under Tenn. R.Crim. P. 16 is misplaced. In general, the state’s duty to disclose reports of examinations and tests is set forth in Tenn. R.Crim. P. 16(a)(1)(D):
Reports of Examinations and Tests. Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at the trial.
The defendant’s duty to disclose is governed by Tenn. R.Crim. P. 16(b)(1)(B):
Reports of Examinations and Tests. If a defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to the witness’ testimony.
Accordingly, disclosure of reports of physical and mental examinations and tests by a defendant under Rule 16, assuming all other requirements are met, depends on whether the defendant intends to introduce evidence or call a particular witness at trial.
There is, however, no similar provision limiting disclosure in Rule 12.2. The rule enables the prosecution to move for a court-ordered evaluation after a defendant notices intent to rely on evidence as to insanity or mental condition. The purpose of the rule is to provide the prosecution with a means to obtain necessary information to rebut evidence of mental condition presented by the defendant, while at the same time safeguarding a defendant’s right against self-incrimination. This function simply could not be achieved were a defendant permitted to prevent disclosure of the results by declining to use the evidence generated by the examination or electing not to call the witness who conducted the examination as a witness at trial. See, e.g., State v. Vilvarajah, 735 S.W.2d 837, 839 (Tenn.Crim.App.l987)(noting distinction between evaluations under Rule 12.2 and discovery under Rule 16(b)(1)(B)).
The defendant also contends, however, that disclosure should not include information that is subject to the attorney/client privilege or protected by the work product doctrine. In this regard, we note that the superseding order of August 12th made disclosure by the defendant to mental health officials “subject to” any applicable privileges. The protection in Rule 12.2(c) limiting the admissibility of statements made by a defendant in the course of an examination is a protection of the right against self-incrimination. See LaFave, supra, at 174. Thus, in Martin, supra, we said that a defendant “is free to object in limine to any material on the basis of privilege, relevance, or any other ground.” 950 S.W.2d at 25. The defendant may, therefore, on remand, object to disclosure of specific material and attempt to establish the applicability of a privilege or other basis for non-disclosure.
In summary, we hold that the court-ordered examination and the disclosure of the examination material does not violate the defendant’s right against self-incrimination, provided the admissibility of any statements made by the defendant during the examination, and any “fruits” derived therefrom, is only for impeachment or rebuttal of evidence of mental condition introduced at trial by the defendant. Moreover, disclosure of the information from the examination is not limited by Rule 16 and does not depend on whether the defendant intends to use the information or witness involved in the Rule 12.2(c) examination.
CONCLUSION
For all of the foregoing reasons, we hold that the trial court’s order compelling Huskey to undergo a mental examination pursuant to Tenn. R.Crim. P. 12.2 did not violate the right to counsel or the right against self-incrimination under either the United States or Tennessee Constitutions. We also hold that disclosure of the material and results related to the examination to the State is proper under the rules, provided any statements made during the examination by the defendant, and any “fruits” derived from the statements, are admissible at trial only for impeachment or rebuttal of evidence respecting a mental condition introduced by the defendant.
Accordingly, the judgment of the trial court is affirmed and this case is remanded to the trial court for further proceedings. Costs of this appeal are taxed to the defendant, Thomas Dee Huskey, for which execution shall issue if necessary.
DROWOTA, REID, BIRCH and HOLDER, JJ., concur.
The defendant was also indicted in case numbers 49828, 49829, 49830, 49831, 50090, and 50091 for multiple rapes, robberies, and kidnappings committed against several victims. Although the defendant has raised several issues with respect to these cases, they are not before us in this appeal.
When Judge Jenkins subsequently recused himself, all of the cases, including the capital cases in number 51903, were assigned to Judge Richard Baumgartner.
With regard to the remaining non-capital cases, 49829, 49830, 49831, 50090, and 50091, which were tried in May of 1996, the trial court ruled that Huskey’s failure to submit to the examination precluded him from relying on an insanity defense or introducing expert testimony respecting a mental condition.
By filing several motions with this Court and by restating the issues in his briefs on appeal, defense counsel has repeatedly sought to expand the number of issues for review, as well as to include issues pertaining to the non-capital cases in 49828, 49829, 49830, 49851, 50090, and 50091. Our review, however, is limited to case number 51903; specifically, whether the court’s orders compelling Huskey to undergo the mental examination and requiring disclosure of the examination material to the prosecution violated the defendant’s right to counsel and the right against self-incrimination. Accordingly, we express no view on any of the other arguments made by Huskey.
Although Huskey includes the orders entered by Judge Jenkins in his argument, we reiterate that our review is solely over the rulings of Judge Baumgartner in case number 51903. Huskey also argues that the prosecution "manipulated” its filing of motions under Rule 12.2(c), resulting in the examinations being ordered just prior to the non-capital trials and leaving insufficient time for adequate preparation. While we note that the trial court expressly rejected this contention, the issue is not among those on which we granted this interlocutory appeal.
STATE of Tennessee, Appellee, v. Thomas Dee HUSKEY, Appellant.
Supreme Court of Tennessee, at Knoxville.
June 22, 1998.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
The appellant, Thomas Dee Huskey, has filed two separate petitions requesting this Court to grant a rehearing in this matter pursuant to Tenn.R.App.P 39(f). In the alternative, the appellant requests that the petitions be considered as applications for extraordinary appeals pursuant to Tenn. R.App.P. 10.
We filed an opinion in this interlocutory appeal on March 9, 1998, and denied the appellant’s first petition for rehearing on May 18, 1998. After due consideration, it is ORDERED that the additional petitions for rehearing, or in the alternative, the applications for extraordinary appeals are denied.
STATE of Tennessee v. Thomas Dee HUSKEY.
Court of Criminal Appeals of Tennessee, at Knoxville.
Aug. 13, 2001.
Application for Permission to Appeal Denied by Supreme Court Dec. 10, 2001.
Herbert S. Moncier and Gregory P. Isaacs, Knoxville, TN, for appellant, Thomas Dee Huskey.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Erik W. Daab, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Jennifer Welch, Assistant District Attorney General, for appellee, State of Tennessee.
[OPINION BY JOSEPH M. TIPTON, J., type=majority]
OPINION
JOSEPH M. TIPTON, J.,
delivered the opinion of the court, in which
DAVID H. WELLES and DAVID G. HAYES, JJ., joined.
The defendant, Thomas Dee Huskey, brings this interlocutory appeal, contending that the double jeopardy protections of the United States and Tennessee Constitutions bar a retrial following the jury’s deadlock on four counts of first degree murder. He argues that the trial court failed to declare a mistrial and manifest necessity did not compel one, that prosecutorial misconduct and judicial overreaching precipitated the jury’s inability to reach a verdict, and that the trial court erroneously failed to accept the jury’s special verdicts. We conclude that double jeopardy does not bar a retrial.
The defendant was charged with four counts of first degree murder, following the discovery of the victims’ bodies in a wooded area near Cahaba Lane in Knox County. The defendant pleaded not guilty and not guilty by reason of insanity, to all four counts. On the fifth day of deliberations, the jury sent the trial court a note stating that it was unable to arrive at a unanimous decision. The trial court recalled the jury, asked if further deliberations would be beneficial, and then discharged the jury upon receiving a negative response. This court’s order granting the defendant permission to appeal limited the issues for review to whether the Double Jeopardy Clause bars a retrial of the case because:
(1) the trial court dismissed the jury after the appellant had been placed in jeopardy without declaring a mistrial;
(2) there was no “manifest necessity” to discharge the jury on the issue of the appellant’s factual guilt of each offense; and
(3) the jury’s inability to reach a verdict was precipitated by prosecutorial misconduct or judicial misconduct during the course of the trial itself.
The defendant contends that federal and state constitutional prohibitions against double jeopardy prevent retrial, arguing that:
(1) the jury’s notes on February 12 and 13,1999, place the defendant in jeopardy with regard to the act of killing;
(2) manifest necessity did not require the trial court to release the jury before accepting its partial verdict on the issue of the act of killing;
(3) the trial court’s improper comments to the jury made it impossible for the court to determine that manifest necessity existed;
(4) the trial court denied him due process, including the right to be heard, before it discharged the jury;
(5) prosecutorial misconduct and judicial overreaching resulted in the jury’s inability to reach a verdict and caused jeopardy to attach;
(6) the trial court erroneously failed to take the jury’s special verdicts on factual guilt or the degree of homicide; and
(7) double jeopardy, res judicata, and collateral estoppel prohibit retrial of the issue of whether he suffered from a mental disease or defect because the jury rendered a special verdict as to that issue.
Because double jeopardy does not bar retrial of the defendant on the four counts of first degree murder, we affirm the trial court’s denial of his motion to bar retrial.
I. DISCHARGE OF JURY
We first address the defendant’s contentions relating to whether the trial court properly declared a mistrial following the jury’s announcement that it could not reach a unanimous decision. The defendant argues that although jeopardy had attached, the trial court released the jury without declaring a mistrial; that no manifest necessity existed to discharge the jury without taking its partial verdicts; and that the trial court’s improper comments to the jury made it impossible for a meaningful manifest necessity determination to be had. Finally, he claims that the trial court denied him due process when it discharged the jury without conferring with counsel or allowing him an opportunity to be heard. The state contends that manifest necessity existed due to the jury’s inability to reach a verdict and that all of the parties knew that the trial court was going to and did declare a mistrial when it called the jury into the courtroom, following the jury’s February 13 note.
Because of the nature of the defendant’s contentions, we review the events surrounding the discharge of the jury in some detail. The jury began deliberating on the morning of February 9, 1999. On February 12, the jury sent the court a note, which read:
Your Honor:
We are unable to come to a unanimous decision on mental responsibility. People’s decisions are unlikely to change.
L.B.
Foreman
We can agree that he has a mental disease or defect, but we cannot decide on the second part on p. 18 # 2 & 3. Can you give us some guidance?
With the jury out, the trial court noted that the jury was referring to the second portion of the insanity instruction relating to the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The defendant requested a mistrial, arguing that the jury was irrevocably hung. The court reread the note to defense counsel, who conferred and then repeated the request for a mistrial, arguing that the jury had deliberated for four days and that the note was not asking for clarification. The court stated that it viewed the jury to be asking for clarification and commented that it was amazed that the defendant did not want the jury to deliberate further on the issue. The court stated its intention to give the jury further instructions on insanity and to allow the jury to deliberate longer.
The following morning, February 13, the court instructed the jury as follows:
Tennessee Code Annotated 39-11-501 provides as follows: Insanity. Insanity is a defense to prosecution if at the time of such conduct as a result of a mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of the person’s conduct or to conform that conduct to the requirements of the law. As used in this section, mental disease or defect does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.
Therefore, Mr. Huskey would not be legally responsible for his criminal conduct if at the time of such conduct, as the result of a mental disease or defect, Mr. Huskey lacked the substantial capacity to either appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law he is charged with violating.
The court returned the jury to its deliberations. The defendant renewed his objection to the new instruction and moved for a mistrial.-
Just over two hours later, the jury sent the court another note, stating, ‘We have deliberated at length and we cannot reach a unanimous decision.” The court observed that the note was not a question, and the following discussion occurred:
The Court: I am going to ask them about that. I think clearly, they have deliberated for four and a half days. I just don’t see how you can ask a jury to do any more than they have done. I am going to ask them the perfunctory question of whether or not they feel any deliberations would be of any benefit, but I am certainly not going to push them at this point.
I know that they have worked hard, and I know that they have tried to resolve their differences, and it is clear that they are unable to do that. Do you want me to inquire as to the split? [Defense Counsel]: No, sir.
[Prosecutor]: Yes, sir.
[Defense Counsel]: We would move for a mistrial.
[Prosecutor]: Well, of course, that would be after a mistrial had been declared.
[Defense Counsel]: After you declare a mistrial—
[Prosecutor]: Oh, yes. It would be improper to ask—
[Defense Counsel]: Yes.
[Prosecutor]: — before a judge made a ruling on the mistrial motion. And we would ask for—
[Defense Counsel]: But you would not ask which way it goes.
The Court: Yes.
[Prosecutor]: You just ask the numerical split?
The Court: I was going to ask both. [Defense Counsel]: Well, don’t ask the second question, Judge. I think, under the law, you don’t.
[Defense Co-Counsel]: I think you can ask what the split is, but not—
[Defense Counsel]: You can ask the split, but not which way.
[Prosecutor]: Well, after you mistrial it, you can do anything you want to do. The Court: Yes, well, that is the point. I mean, once it is over, I think you can inquire as to either one.
[Defense Counsel]: No, the reason you don’t do that, Judge, is because it influences future jurors. It is information in the public—
The court agreed to ask the jury only about its numerical split.
Upon the jury’s return to the courtroom, the following transpired:
The Court: Ladies and gentlemen, I received your latest communication— and I can tell you that I was not shocked to receive it — which reads that, ‘We have deliberated at length and cannot reach a unanimous decision.” I know that you have been working for four and a half days. I know that you have been working very hard, and I am going to ask this question, because I feel compelled to do it: Do you think, if given further opportunity to discuss the merits of this case, that you could resolve your differences, ladies and gentlemen?
The Foreperson: (Shaking head in the negative)
The Court: Does anybody feel that you can?
Juror No. 12: No.
The Court: Ms. B., it is not going to happen?
Juror No. 12: We did take a poll. We did, very nicely, go around the table, and honestly expressed ourselves.
The Court: All right. Well, that happens sometimes. Obviously, we would have preferred to have a verdict. I know that you have worked long and hard on it. You can imagine, we have worked long and hard on it. But you are to be commended for the time and effort that you have put into this case. We all observed you during the course of the trial and are aware of the fact that you listened very intently, and obviously took your job very seriously.
I am going to release you, ladies and gentlemen.
The court proceeded to instruct the jurors not to talk about the case until they had been contacted by the court and thanked the jurors for their service. Just before the jurors left the courtroom, the court asked:
Oh, let me make one inquiry. I don’t want to know which way. In other words, I don’t want to know — but I want to know the numerical split. Okay? In other words, was it six to six? Was it eight to four? Was it nine to three? Can you give me a numerical split?
Juror No. 11: Six to six, but it was on the mental responsibility part, not the guilt.
After the jury left, defense counsel discussed the schedule for filing a motion for a judgment of acquittal, stating that he had thirty days in which to file a motion for a judgment of acquittal on a mistrial.
In its order denying the defendant’s motion to bar retrial, the trial court found that after substantial time and effort, the jury was unable to reach a verdict on the defendant’s sanity. It found that the defendant requested a mistrial during jury deliberations and, thus, was barred from benefitting from an action that he requested. It found that manifest necessity justified a mistrial in the defendant’s case.
A. Jeopardy
The Double Jeopardy Clause of each of the United States and Tennessee Constitutions states that no person shall be put in jeopardy of life or limb for the same offense. U.S. Const, amend. V; Tenn. Const, art. I, § 10. The clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Phillips, 924 S.W.2d 662, 664 (Tenn.1996). In a jury trial, jeopardy attaches when the jury is sworn. See State v. Knight, 616 S.W.2d 593, 595 (Tenn.1981). The defendant contends, and we agree, that at the time the jury was discharged, jeopardy had attached in his case.
Once jeopardy attaches, a defendant has a valued interest in having the particular jury selected for trial render a verdict. United States v. Jorn, 400 U.S. 470, 485-86, 91 S.Ct. 547, 557-58, 27 L.Ed.2d 543 (1971). The policy behind limiting the state to a single proceeding is the recognition that:
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Although the Double Jeopardy Clause protects the defendant, “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 836-37, 93 L.Ed. 974 (1949).
Generally, once jeopardy has attached, double jeopardy will not bar a retrial if the defendant assents to the trial court ending the proceedings. State v. Mounce, 859 S.W.2d 319, 321 (Tenn.1993). In such case, the defendant has elected to waive a verdict by that particular jury. Id.; Knight, 616 S.W.2d at 596. Double jeopardy also does not preclude retrial if manifest necessity exists for the trial court to declare a mistrial. Mounce, 859 S.W.2d at 321. This is true even if the defendant does not consent to the mistrial or, in fact, objects to the mistrial. Id. The decision to grant a mistrial lies within the trial court’s discretion, and we defer to the trial court’s decision absent an abuse of discretion. Id. at 322.
B. Mistrial
Initially, the defendant argues that the trial court released the jury without declaring a mistrial. The state contends that although the trial court did not expressly state that it was declaring a mistrial, the defendant requested a mistrial, all parties understood that the trial court was declaring a mistrial, and the defendant did not object to the discharge of the jury. In arguing that the defendant requested a mistrial, the state points to the defendant’s request for a mistrial following the jury’s February 12 note and again following the court’s supplemental insanity instruction the next morning. The defendant argues that the general rule that a mistrial upon defense motion does not bar retrial does not apply when the defendant moves for a mistrial but that motion does not relate to the actions of the court that resulted in the termination of the proceedings.
First, we note that the defendant requested a mistrial following the jury’s February 12 note, believing it revealed that the jury was hopelessly deadlocked. After the court’s supplemental instruction and two additional hours of deliberation, the jury reported that it could not reach a unanimous decision. Thus, we question whether the defendant’s earlier requests for a mistrial were for a different reason from that which caused the trial court to release the jury. In any event, the record reflects that following the court’s receipt of the February 18 note, defense counsel again requested a mistrial:
The Court:_Do you want me to inquire as to the split?
[Defense Counsel]: No, sir.
[Prosecutor]: Yes, sir.
[Defense Counsel]: We would move for a mistrial.
[Prosecutor]: Well, of course, that would be after a mistrial had been declared. [Defense Counsel]: After you declare a mistrial—
[Prosecutor]: Oh, yes. It would be improper to ask—
[Defense Counsel]: Yes.
[Prosecutor]: — before a judge made a ruling on the mistrial motion.
(Emphasis added). The discussions preceding and following the jury’s release reveal that all parties understood that the trial court was going to and did declare a mistrial. Generally, when the defendant requests or consents to a mistrial, double jeopardy protections do not bar retrial. Knight, 616 S.W.2d at 696. “In such a case, the defendant has deliberately elected to forego his right to have guilt or innocence determined by the first trier of fact.” Id.
Furthermore, even when the trial court lacks manifest necessity to declare a mistrial, the defendant’s consent to the mistrial permits retrial. Momee, 859 S.W.2d at 322. In Momee, our supreme court held that consent may be inferred from the defendant’s failure to object to the mistrial if the defendant has an opportunity to object:
[T]he rationale for requiring an objection to a mistake is that it gives the trial judge an opportunity to cure a situation that one or both parties perceive to be in error. A party ought not be permitted to stand silently by while the trial court commits an error in procedure, and then later rely on that error when it is to his advantage to do so. This is why there is precedent dating back to the last century holding that if an accused fails to object to the jury’s discharge upon a defective verdict, he is viewed as having waived the right not to be put on trial again. State v. Ragsdale, 78 Tenn. 671, 672 (1882); see also, Waddle v. State, 112 Tenn. 556, 82 S.W. 827 (1904) (absence of an objection to the discharge of the jury equates to a waiver). We thus hold that when a defendant chooses not to object to the mistrial and give the trial court an opportunity to correct the error, consent may be inferred and, therefore, double jeopardy will not bar a subsequent prosecution.
Id. at 323. In the present case, despite the discussion regarding polling the jury folio-wing a mistrial, the defendant lodged no objection to the jury’s release. Because we conclude that the defendant consented to the mistrial, double jeopardy does not bar a retrial regardless of the presence or absence of manifest necessity.
C. Due Process
The defendant argues that the trial court denied him due process when it discharged the jury without conferring with counsel or allowing him an opportunity to be heard. We believe the record belies this contention. Following its receipt of the February 13 note, the trial court read the note to the parties and then expressed its view that the jury had deliberated for four and one-half days and was unable to agree. The ensuing discussion reveals that the parties knew that the trial court intended to declare a mistrial. The defendant failed to take this opportunity to object to the jury’s release and, in fact, requested a mistrial during the discussion. After the trial court discharged the jury, the defendant participated in a discussion regarding the schedule for filing his motion for a judgment of acquittal following a mistrial. The defendant had an opportunity to be heard on the jury’s discharge but chose to make no objection. His due process rights were not violated.
II. PROSECUTORIAL MISCONDUCT AND JUDICIAL OVERREACHING
The defendant contends that numerous instances of prosecutorial misconduct and judicial overreaching caused the jury to be unable to reach a verdict in this case and, thus, double jeopardy bars a retrial. He argues that bad faith conduct on the part of the prosecutor or the trial court, which results in a mistrial, prevents retrial. He asserts that in addition to the specific examples of overreaching in this case, the totality of the overreaching — including conduct, tactics and proceedings that predate the 1999 homicide trial — precipitated the jury’s inability to reach a verdict on his sanity or to announce its verdict on guilt. The state contends that overreaching alone does not bar retrial but, instead, that the prosecutor must intend to goad the defendant into seeking a mistrial. It argues that the defendant does not even allege that the prosecutor or the court intended to goad the jury into the inability to reach a verdict. Finally, it maintains that none of the instances mentioned by the defendant can be considered misconduct or overreaching on the part of the state or the trial court.
As noted above, double jeopardy does not bar a retrial when the defendant asks for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982); Mounce, 859 S.W.2d at 321. A narrow exception to this rule exists: “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089. In Kennedy, the Supreme Court noted the possible confusion stemming from language in other cases which indicated that bad faith or harassment by the prosecutor or the trial court would be sufficient to invoke this exception. Id. at 674, 678 n. 8, 102 S.Ct. at 2088-89, 2090 n. 8. The Court rejected these standards in favor of intent, finding them unmanageable because the rational prosecutor is always seeking to “ ‘prejudice’ the defendant by placing before the judge or jury evidence leading to a finding of his guilt.” Id. at 674,102 S.Ct. at 2089. “Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76, 102 S.Ct. at 2089.
Tennessee has expressly adopted the Kennedy standard under article I, section 10 of the Tennessee Constitution for determining whether prosecutorial misconduct will bar a retrial. State v. Tucker, 728 S.W.2d 27, 81 (Tenn.Crim.App.1986). “Only when it is shown that the prosecutor is ‘goading’ the defense into moving for a mistrial will double jeopardy bar a retrial.” Id. In order to determine the prosecutor’s intent, the trial court should look to the circumstances surrounding the prosecutor at the time:
When things are going well, the prosecutor will seldom want to provoke a mistrial. However, when the case is collapsing around the prosecutor because the witnesses are weaker than expected, adverse rulings have kept out important evidence, or key witnesses cannot be found or did not appear, the trial judge can infer the prosecutor’s intent and reach the conclusion that a mistrial was actually desired. The prosecutor’s explanation of his intent may be given some credence “in light of the minimum requirements expected of all lawyers.”
Id. (quoting Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261, 272 (1984)). The trial court’s factual findings in this regard are decisive on appeal unless the evidence preponderates otherwise. State v. Nixon, 669 S.W.2d 679, 681 (Tenn.CrimApp.1983). The defendant bears the burden of showing that the evidence preponderates against the trial court’s findings. Id.
The defendant relies upon United States v. Love, 597 F.2d 81 (6th Cir.1979), and United States v. Enoch, 650 F.2d 115 (6th Cir.1981), to argue that bad faith conduct or overreaching by the prosecutor or the trial court is sufficient to bar a retrial based upon double jeopardy principles. Initially, we note that both of these cases were decided before the Supreme Court’s decision in Kennedy. In Kennedy, the Court noted that language in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), could be construed to mean that overreaching itself would activate the double jeopardy bar to retrial. 456 U.S. at 674, 678 n. 8,102 S.Ct. at 2088-89, 2090 n. 8. The Sixth Circuit in Enoch relied upon Dinitz and Jom to hold that “when a criminal defendant’s successful request for a mistrial is precipitated by ‘prosecutorial or judicial overreaching,’ a subsequent trial on the same charges is barred by the double jeopardy clause.” Enoch, 650 F.2d at 117. It is this standard that the Supreme Court in Kennedy found too broad to apply. 456 U.S. at 674, 102 S.Ct. at 2089. In adopting the Kennedy standard in Tucker, this court noted that it protected both the “defendant’s right to a fair trial and society’s right to have guilty criminals convicted” by reserving the double jeopardy bar for only those instances in which the prosecutor sought to cause the defendant to foreclose submitting the case to a particular jury:
In the overwhelming majority of the cases, corrective instructions to the jury can be utilized to remove the taint of less serious prosecutorial misconduct. In cases of more serious error, the court can admonish the prosecutor in the presence of the jury, expressing the court’s disdain for the prosecutor’s improper actions. Finally, in the most egregious cases, the trial judge can, upon a defense motion, grant a mistrial and preserve the defendant’s right to a retrial before another untainted jury. Only when it is shown that the prosecutor is “goading” the defense into moving for a mistrial mil double jeopardy bar a retrial.
Tucker, 728 S.W.2d at 31. Thus, overreaching or misconduct alone is insufficient to bar a retrial.
In its order denying the defendant’s motion to bar retrial, the trial court found that no prosecutorial misconduct or trial court error forced a mistrial in this case. The record does not preponderate against this finding. The defendant moved for a mistrial following the jury’s February 12 note, arguing that the jury was hopelessly deadlocked. The prosecutor agreed with the trial court that the jury was merely asking for further instruction. The trial court even stated that it was amazed that the defendant did not want the jury to deliberate further on the issue. After the trial court provided additional instructions on insanity and the jury deliberated further, the jury announced its inability to reach a verdict. At this point, the trial court determined that the jury was deadlocked, the defendant requested a mistrial, and the discussion focused on whether the trial court could ask the jury about its numerical split. Nothing about these events suggests that the prosecutor or the court was attempting to goad the defendant into requesting a mistrial.
The defendant makes numerous allegations of prosecutorial misconduct and judicial overreaching, which he claims precipitated the jury’s inability to reach a verdict. With regard to prosecutorial misconduct, he argues that the prosecutor made improper and prejudicial arguments to the jury which caused it to be unable to reach a verdict. He contends that the state’s proof of his sanity was weak and hinged upon the testimony of Dr. Herbert Speigel. He argues that Dr. Speigel misapplied the M’Naughten test for insanity and that the jury obviously rejected Dr. Speigel’s testimony that the defendant did not suffer from a mental disease. Thus, the defendant claims that in light of all the experts who found the defendant insane under the Graham test or who could not disprove insanity, the jury necessarily based its inability to reach a verdict upon the prosecutor’s improper arguments. He also contends that the prosecutor engaged in misconduct during trial, which included his failure to approach the bench during bench conferences, personal comments to the jury, and conduct revealing his obvious hatred of the defendant. Although the defendant acknowledges the difficulty in linking this alleged conduct to the jury’s inability to reach a verdict, he argues that once he has shown that the misconduct occurred, the state must show that the conduct did not precipitate the jury’s inability to reach a verdict. To the contrary, as noted above, the defendant must prove that the evidence preponderates against the trial court’s finding that no prosecutorial misconduct forced a mistrial in this case. See Nixon, 669 S.W.2d at 681.
Regarding' his claims of judicial overreaching, the defendant contends that the following actions on the part of the trial court resulted in the state securing the testimony of Dr. Speigel: engaging in a sua sponte and ex parte investigation of his mental condition; failing to hold a hearing pursuant to McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.1997), on the admissibility of Dr. Speigel’s testimony; failing to exclude Dr. Speigel’s testimony on the basis of Rules 104, 403, 702, and 703, Tenn. R. Evid.; permitting Dr. Speigel to testify pursuant to the state’s leading questions to opinions not contained in his one and one-half page report; and failing to require Dr. Speigel to give his opinions to a reasonable degree of psychiatric certainty. He contends that the trial court erroneously permitted the state to present the testimony of Dr. Speigel and Dr. Neil Haskell, an entomologist, in rebuttal rather than granting his motion for a judgment of acquittal for insufficient evidence at the end of the state’s proof with regard to his sanity or to the murder of Patricia Johnson. He also asserts that the trial court erroneously refused to suppress his 1992 statements, which resulted in the jury’s inability to reach a verdict because the statements constituted the sole evidence linking him to the murders. He contends that the trial court erroneously denied him funds and international assistance to locate A.P., a German citizen whom “Kyle,” one of the defendant’s alternate personalities, falsely confessed to raping. He also asserts that the trial court overreached by erroneously redacting the portions of his statements that related to A.P.. He argues that the trial court’s erroneous and arbitrary admission of evidence under Rule 404(b), Tenn. R. Evid., precipitated the jury’s inability to reach a verdict on insanity or to announce a verdict on factual guilt. He contends that the trial court overreached by sua sponte instructing the jury to disregard defense counsel’s arguments outlining the involuntary hospitalization process contained in Tenn.Code Ann. § 33-7-303. He argues that the trial court erroneously failed to instruct the jury on the time of the offense contained in the bill of particulars for Patricia Johnson’s murder. He claims the trial court overreached by instructing the jury to continue its deliberations at a time when neither the defendant nor the court reporter were in the courtroom. He claims that the trial court’s disqualification constitutes overreaching and infected every ruling and proceeding, causing the jury to be unable to reach a verdict.
Even taking all of the defendant’s allegations of prosecutorial misconduct or judicial overreaching as true, we conclude that none of this conduct reveals that the prosecutor or the trial court intended to provoke a mistrial. Furthermore, nothing alleged by the defendant gives any reason to expand upon the requirement in Tucker that the prosecutor or court must intend to provoke the defendant’s request for a mistrial.
In addition to the allegations regarding the conduct on the part of the prosecutor and trial court during the murder trial, the defendant contends that conduct preceding his murder trial caused the jury to be unable to reach a verdict. He lists the following conduct as resulting in the state securing the testimony of Dr. Speigel: prosecutorial delay in bringing the rape cases before the murder cases; prosecutorial manipulation of the Rule 12.2(c), Tenn. R.Crim. P., mental evaluation process; the trial court continuing the murder trial sua sponte three times over defendant’s objection and request for a speedy trial; the trial judge’s refusal to hear any motions from May to August 1998 due to his campaign for reelection; and the trial court’s permitting the state to abuse the Rule 16(a)(1)(D), Tenn. R.Crim. P., disclosure process by not revealing Dr. Speigel’s report until shortly before trial. He argues that the prosecutor directed law enforcement officers to violate the defendant’s constitutional rights in November 1992 regarding the taking of the “Kyle” and “Philip Dax” statements, which precipitated the jury’s inability to reach a verdict in the murder case. He argues that Judges Jenkins and Baumgartner were biased against the defense as reflected in their treatment of the Rule 12.2(c) issue in the rape cases. He also contends that his invalid convictions in the Hanshaw and consolidated rape cases affected his defense and prevented him from testifying in the murder cases. He argues that the trial court’s failure to rule on the motions for new trial in these cases before his murder trial foreclosed his opportunity to have those convictions overturned on appeal before his murder trial.
Regarding the pretrial events relating to his murder trial, he contends that the trial court’s allowing the state to join the four murder cases for trial precipitated the jury’s inability to reach a verdict. He alleges that the trial court erroneously permitted the state to disclose only testifying experts and to withhold consulting experts, forcing the defendant to prepare his defense without disclosure of Dr. Speigel’s report until shortly before trial. He contends that the trial court erroneously delayed in ruling on the motion to suppress his statements until shortly before trial and that this overreaching lead to the erroneous admission of those statements, which were the only evidence linking him to the murders. Finally, the defendant argues that the totality of the overreaching, including the conduct, tactics, and proceedings that occurred before the 1999 trial, resulted in the jury having enough inadmissible evidence to be unable to announce a verdict. We fail to see the connection of these pretrial events to the mistrial in the present case. Because we can ascertain no evidence that the prosecutor or the trial court intended through any of the conduct alleged by the defendant to goad him into requesting a mistrial, double jeopardy does not bar a retrial due to prosecutorial misconduct or judicial overreaching. And again, we see no reason to expand upon Tucker.
The defendant contends that when the termination of the proceedings results from a deadlocked jury rather than a defendant’s request for a mistrial, the question becomes whether the evidence, excluding that resulting from prosecutorial misconduct or judicial overreaching, is sufficient to support a verdict of guilt or whether the defendant was denied a fundamentally fair trial, precipitating the jury’s inability to agree. The termination of the proceedings in the present case resulted from the defendant’s request for and consent to the mistrial. The proper standard is whether the prosecutor or the trial court intended to goad the defendant into requesting the mistrial by prosecutorial misconduct or judicial overreaching. We hold that the standard was not met in this case and, therefore, that double jeopardy does not bar a retrial of the four first degree murder charges.
III. SPECIAL VERDICTS
The defendant contends that the jury reached a verdict on factual guilt but that the trial court erroneously failed to take that verdict or any verdicts on the degree of homicide before releasing the jury. In his reply brief, he explains that the term “factual guilt,” as used by himself and the trial court, refers to the commission of the act constituting the offense, excluding the issue of his sanity at the time the act was committed. Although not entirely clear, we take this to mean the commission of the killing. In support of his contention, the defendant argues that the court’s instructions and the verdict form directed the jury to make multiple verdicts and that he had factual defenses to each homicide in addition to his insanity defense. He also argues that double jeopardy, res judicata, and collateral estoppel prohibit retrial of the issue of whether he suffered from a mental disease or defect because the jury rendered a special verdict as to that issue. The state argues that the jury had to determine both the defendant’s guilt of a particular offense and his sanity in order to render a verdict. It thus contends that there were no separate verdicts for the trial court to accept.
For each of the four victims, the trial court instructed the jury on the ele-merits of first degree murder, second degree murder, and voluntary manslaughter. For victim Patricia Ann Johnson, the court also instructed on the elements of reckless homicide and criminally negligent homicide. Because the murders occurred before July 1, 1995, the defendant’s insanity defense was a general defense rather than an affirmative defense. Tenn.Code Ann. § 39-11-501 (1991, amended 1995) (in post-1995 cases, the defendant has the burden of proving insanity by clear and convincing evidence). Thus, once the defendant raised the issue of insanity, the state had the burden of proving his sanity beyond a reasonable doubt. Regarding the insanity defense, the trial court instructed the jury:
Included in the defendant’s plea of not guilty is his plea that he was insane at the time of the commission of the offense. You are not to consider this defense unless you have found that the State has proven beyond a reasonable doubt the existence of each and every essential element of the crimes charged.
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
A mental disease or defect is defined as any abnormal condition of the mind which substantially affects mental or emotional processes and impairs behavior control. Behavior controls refer to the processes and capacity of a person to regulate and control his conduct. The terms “mental disease or defect” do not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.
The court instructed the jury that once the evidence raised a reasonable doubt about the defendant’s sanity, the state had the burden of proving the defendant’s sanity beyond a reasonable doubt.
Before deliberations and with the jury out, the court noted with regard to the verdict form: “I decided to just put the mental responsibility as a separate section. Obviously, if they find him insane, it is going to apply to all of it. So I just put that at the end. I think that makes it as clear as it can make it.” Neither party objected to this. The court explained the verdict form to the jury as follows:
What this does, ladies and gentlemen, is it starts with the four alleged victims in this case. It starts with Patricia Rose Anderson. The first paragraph is, “We, the jury, find the defendant Thomas Dee Huskey guilty, not guilty” — you circle one of those two, obviously — of the first degree murder of Patricia Rose Anderson.”
If you find him not guilty of that offense, then you go on to the lesser included offense. If you find him not guilty of second degree, you go on and consider voluntary manslaughter. If you find him guilty of a greater offense, you stop there. Obviously, you don’t have to go beyond that. Okay?
It is listed for each of the four victims. .... And then the last question is the mental responsibility issue; and, if you find the defendant guilty of any offenses, it says, “Having found the defendant guilty, as indicated above, we the jury find,” and then you will choose either the defendant sane beyond a reasonable doubt or not guilty by reason of insanity. Those will be your two choices there.
The jury began deliberations.
On February 11, the jury sent the court a note, which read: “Do we have to unanimously agree on all four charges? If we agree on all but one, are we a hung jury? What is the procedure?” During the course of the discussion about how the court would instruct the jury, the following exchange took place:
[Defense Counsel]: Judge, let me bring something — I still do not understand how we are considering first degree murder separate from the issue of insanity. What I am saying to the Court is that, if Mr. Huskey were not guilty by reason of insanity, he could not possibly be guilty of first degree murder.
The Court: He can be guilty of first degree murder, but not mentally responsible by reason — not guilty by reason of insanity.
[Defense Counsel]: Well, we have always disagreed as to that, and I continue to disagree to that; because, if he was insane at the time, he did not have the mens rea to commit first degree murder.
[Prosecutor]: The murders happened at different times.
The Court: If they find him not guilty by reason of insanity, I agree that he is not criminally responsible then for that conduct.
[Defense Counsel]: But we have an inconsistency in this verdict process that we are going through is what I am suggesting to the Court.
The Court: You have no objection to that charge [relating to the jury’s note]?
[Defense Counsel]: No, but we continue to object to the manner in which they are being asked to state their verdict, because what if they come back and say, “We find him guilty of first degree murder, but we find him not guilty by reason of insanity”? Those are inconsistent verdicts.
On February 12, the jury sent the court a note, discussed in the above section, which stated:
Your Honor:
We are unable to come to a unanimous decision on mental responsibility. People’s decisions are unlikely to change.
L.B.
Foreman
We can agree that he has a mental disease or defect, but we cannot decide on the second part on p. 18 # 2 & 3. Can you give us some guidance?
On February 13, the trial court announced its intention to release the jury because it could not reach a unanimous verdict. It inquired about the jury’s numerical split, to which one juror replied that the jury was split “[s]ix to six, but it was on the mental responsibility part, not the guilt.”
In its order denying the defendant’s motion to bar retrial, the trial court found that the defendant made no request that the jury be polled for any partial verdicts and that it had no duty to poll the jury sua sponte for a partial verdict. It also noted that the defendant specifically objected to any poll other than one for the jury’s numerical split on sanity.
A. Special Verdicts on the Act of Killing and the Degrees of Homicide
The defendant argues that his constitutional right to a verdict by a particular tribunal includes his right to verdicts on the issues of whether he committed the act of killing and which degree of homicide the jury found. The four counts of first degree murder were tried jointly over the defendant’s objection, and each count had lesser included offenses. The defendant argues that the jury had to find that he committed the killings as a condition precedent to finding him criminally insane. He asserts that the jury instructions and the verdict form asked the jury to give special verdicts on whether he committed the act of killing, what degree of homicide he committed, and whether he was insane. He contends that the jury’s February 12 note stating that the jury agreed that he had a mental disease or defect and the juror’s comment that the jury was split six to six on the mental responsibility issue necessarily means that the jury had found the defendant guilty of some degree of one of the homicides. He argues that the jury was not deadlocked on the issue of whether he committed the act of killing. Thus, he contends that the trial court erred in failing to take these special verdicts and that double jeopardy bars a retrial because these special verdicts were not taken. Furthermore, he claims that he was prejudiced by the trial court’s failure to collect these special verdicts because a jury finding on the act of killing would have entitled him to a Rule 3, T.R.A.P., appeal on many critical issues, thereby ensuring a fair opportunity for an acquittal in a new trial.
The state asserts that the jury could not render a verdict on the defendant’s guilt for a particular offense without also determining his sanity at the time of the offense and that there were no separate verdicts for the trial court to accept. It contends that the trial court’s request that the jury first determine whether the defendant was guilty of any degree of homicide and then decide whether he was insane was error. It argues that the defendant’s mental state at the time of each homicide was an essential element of that offense and that a finding on both the act of killing and sanity were necessary before the jury could render any verdict. It argues that because the jury was deadlocked on sanity, it could not have made a determination of the mens rea element of each offense. The state concludes that the trial court could not have taken findings on a degree of homicide for each victim.
Our review of the jury instructions and verdict form lead us to conclude that it was impossible for the jury to follow the trial court’s instructions and that they could not arrive at any special findings regarding the degree of homicide. The instructions and the verdict form asked the jury to determine if the defendant was guilty of any degree of homicide before deciding if he was insane at the time of the offenses. Each degree of homicide requires the jury to consider the defendant’s mental state at the time of the offense. Tenn. Code Ann. §§ 39-13-202, -210, - 211, -212, -215. In this case, the defendant raised the issue of his sanity at the time of the offenses. The issue of whether the defendant was insane at the time of the offense is inextricably intertwined with the determination of the defendant’s mental state at the time of the offense. See Stone v. State, 521 S.W.2d 597, 600-01 (Tenn.Crim.App.1974) (holding that the defendant was not entitled to a bifurcated trial on the insanity issue because “the defense of insanity at the time of the crime is at issue under a plea of not guilty”). The request that the jury separate these considerations and first find the defendant guilty of some offense before considering whether he was insane — and therefore, not guilty — at the time of the offense was erroneous. Because the jury deadlocked on insanity, it could not have made any proper findings on the degree of homicide. Regarding the act of killing, we decline to infer a special verdict on the act of killing when the defendant did not request the trial court to take a special verdict and the jury did not affirmatively indicate that it made a finding on the act of killing.
The state contends that the trial court erroneously allowed the defendant to plead both not guilty and not guilty by reason of insanity. Citing Rule 11, Tenn. R.Crim. P., it argues that Tennessee law does not permit a plea of not guilty by reason of insanity. It asserts that, instead, the defendant should have pled not guilty and then advanced insanity as one of his theories of defense. The defendant contends that ease law reveals that a plea of not guilty by reason of insanity is proper.
Rule 11(a), Tenn. R.Crim. P., provides that a “defendant may plead not guilty, guilty, or nolo contendere.” In Jimmy Don Spangler v. State, 1987 WL 8901, No. 968, Hamilton County (Tenn.Crim.App. Apr. 2, 1987), app. dismissed (Tenn. June 29, 1987), the trial court sustained the state’s objection pursuant to Rule 11 to the defendant’s alternative pleas of not guilty and not guilty by reason of insanity. This court noted that the state was technically correct that Rule 11 did not provide for a plea of not guilty by reason of insanity and that “a plea of not guilty encompasses a plea of not guilty by reason of insanity.” Jimmy Don Spangler, slip op. at 7-8. The court concluded that no reversible error resulted from the sustaining of the state’s objection because the defendant developed his insanity defense at trial and the trial court instructed the jury to consider his insanity defense. We do not take this analysis to foreclose a plea of not guilty by reason of insanity. Furthermore, our supreme court has explicitly referred to a defendant pleading not guilty by reason of insanity. Forbes v. State, 559 S.W.2d 318, 328-29 (Tenn.1977) (“It is our view that when any defendant, suffering from a mental illness that is cyclic, periodic or episodic in nature, characterized by periods of remission, interposes a plea of not guilty by reason of insanity, it is incumbent upon him to make out a prima facie case of insanity by offering evidence of non-remission at the time of commission of the crimes.”); see, e.g., Sampson v. State, 553 S.W.2d 345, 346 (Tenn.1977) (noting that the defendant pled not guilty by reason of insanity); Walden v. State, 178 Tenn. 71, 72, 156 S.W.2d 385, 385 (Tenn.1941) (noting that the “defendant entered pleas of ‘not guilty’ and ‘insanity’ ”); State v. Phillips, 968 S.W.2d 874, 875 (Tenn.Crim.App.1996) (noting that the defendant pled not guilty by reason of insanity); Matlock v. State, 566 S.W.2d 892, 894 (Tenn.Crim.App.1978) (noting that the defendant pled not guilty by reason of insanity). Even the uniform judgment document required by the supreme court provides for a verdict of not guilty by reason of insanity. See Tenn. S.Ct. R. 17. In fact, a jury must declare a not guilty verdict is by reason of insanity in order to trigger the sixty to ninety days detention of a defendant for evaluation. See Tenn.Code Ann. § 33-7-303(a). A plea to match the verdict can only be appropriate. In any event, the fact that the defendant in the present case pled both not guilty and not guilty by reason of insanity does not mean that the jury rendered special verdicts regarding the act of killing or the degree of homicide for each offense.
Finally, as a part of his argument that the trial court erred in failing to take the jury’s special verdicts, the defendant contends that the trial court was not qualified to rule on his double jeopardy motion because it received an ex parte letter from the foreperson on February 15, 1999. He argues that the letter revealed the jury’s numerical split on whether the defendant committed the killing and his sanity and the details of the jury’s deliberations. He contends that the trial court faded to tell him that it had received the letter or to file the letter with the record. Upon learning of the letter, the defendant filed a motion to disqualify the trial judge. The trial judge overruled this motion, stating that his secretary received and opened the letter and that he did not read it. The defendant contends that the trial judge’s receipt of this letter provides a reasonable basis to question whether the judge had personal knowledge of the jury’s verdict on the act of killing at the time the judge ruled on the defendant’s motion to bar retrial. He argues that at the very least, receipt of the letter creates the appearance that the trial court had personal knowledge of facts before the court in the motion to bar retrial, and therefore, the trial judge was not qualified to rule on the defendant’s motion.
A trial judge should grant a motion to recuse whenever his or her impartiality can reasonably be questioned. Alley v. State, 882 S.W.2d 810, 820 (Tenn.Crim.App.1994). Recusal is “warranted when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Id. The standard of review on appeal is whether the trial court abused its discretion by denying the motion. State v. Cash, 867 S.W.2d 741, 749 (Tenn.Crim.App.1993). The Code of Judicial Conduct states in pertinent part:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
Tenn. S.Ct. R. 10, Cannon 3 E.
Initially, we note that the defendant’s argument regarding the trial court’s receipt of a letter from the jury foreperson has no bearing upon whether the triál court should have attempted to collect special verdicts before discharging the jury. In any event, the record reflects that the trial court did not read the letter and, therefore, had no personal knowledge of any facts at issue in the defendant’s motion to bar retrial.
B. Factual Determination on Mental Disease or Defect
The defendant contends that the jury found that he had a mental disease or defect, and therefore, double jeopardy, res judicata, and collateral estoppel prevent the state from relitigating that issue in any future trial. He asserts that his mental state at the time of the offenses and at the time he made statements to the police will be an issue in the event of a retrial. He maintains that in its February 12 note, the jury announced that it unanimously agreed that the defendant suffered from a mental disease or defect. He argues that jeopardy attaches to this finding. He also summarily contends that res judicata and collateral estoppel prevent the state from relitigating the issue of whether he suffered from a mental disease or defect. He argues that this finding by the jury implicates the voluntariness of his statements to the police, the manner in which his Rule 12.2(c) mental evaluations were conducted, the striking of the insanity defense in the Hanshaw rape case, the striking of the right to use expert testimony in the consolidated rape cases, and the sentencing in the Hanshaw and consolidated rape cases. The state does not respond to this argument other than advancing the general argument that the jury cannot return any verdict without a finding on both insanity and the elements of the offenses.
As set out above, on February 12, 1999, the jury sent the trial court a note which stated:
Your Honor:
We are unable to come to a unanimous decision on mental responsibility. People’s decisions are unlikely to change.
L.B.
Foreman
We can agree that he has a mental disease or defect, but we cannot decide on the second part on p. 18 # 2 & 3. Can you give us some guidance?
In its order on the defendant’s motion to bar retrial, the trial court made no determination regarding whether this note constituted a finding of fact by the jury.
The defendant contends that res judicata bars relitigation of the issue of mental disease or defect. Our supreme court has noted the following distinction between the doctrines of res judicata and collateral estoppel:
“The doctrine of res judicata bars a second suit between the same parties or their privies on the same cause of action with respect to all issues which were or could have been litigated in the former suit. Collateral estoppel operates to bar a second suit between the same parties and their privies on a different cause of action only as to issues which were actually litigated and determined in the former suit.”
Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn.1995) (quoting Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn.1989)). “ ‘Res judicata’.bars relitigation of the same cause of action between' the same parties where there is a prior judgment, whereas ‘collateral estoppel’ bars relitigation of a particular issue or determinative fact.” Black’s Law Dictionary 905 (6th ed.1991). In the present case, the defendant’s mental diseasé or defect is not a cause of action but rather a single issue or determinative fact within an action. Therefore, we will consider whether collateral estoppel applies.
The doctrine of collateral estoppel in the criminal law stems from the constitutional protection against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189,1195, 25 L.Ed.2d 469 (1970); see State v. Allen, 752 S.W.2d 515, 516 (Tenn.Crim.App.1987) (analyzing the application of collateral estoppel as defined in Ashe in a double jeopardy challenge under both the state and federal constitutions). This doctrine prevents relitigation of issues necessarily decided in an earlier trial: Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. The policy behind the doctrine lies in the inherent reliability of final judgments. Standefer v. United States, 447 U.S. 10, 23 n. 18, 100 S.Ct. 1999, 2007 n. 18, 64 L.Ed.2d 689 (1980) (noting that collateral estoppel “is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct”). Criminal collateral estoppel shares this policy with civil collateral estoppel, but the policy of preventing further harassment to the party prevailing in the initial trial weighs more heavily in the criminal context. Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L.Rev. 1, 32 (1960). Procedurally, when a defendant’s first trial ends in a general verdict of acquittal, the trial court must examine the record of the first trial; consider the pleadings, proof, jury instructions, and other relevant matters; and determine if a rational jury could have returned the verdict based upon an issue different from the one the defendant wants to bar. Ashe, 397 U.S. at 444, 90 S.Ct. at 1194. The determination should be practically oriented and must look to all the circumstances of the first trial. Id. The defendant bears the burden of establishing that the issue that he or she seeks to preclude was actually determined in the first trial. Schiro v. Farley, 510 U.S. 222, 232, 114 S.Ct. 783, 790, 127 L.Ed.2d 47 (1994); State v. McKennon, 6 S.W.3d 508, 511 (Tenn.Crim.App.1998) (noting that the defendant bears the burden of showing that the issue that cannot be relitigated was actually decided and necessary to the judgment in the first trial).
In the present case, the defendant seeks to bar retrial of the issue of whether he suffered from a mental disease or defect at the time of the offenses. The jury’s statement that it could agree that the defendant had a mental disease or defect does not arise out of a previous judgment of acquittal but, instead, was reported to the trial court before it determined that the jury was deadlocked in the present case. In this way, the circumstances of the present case are distinct from those in Ashe, in which the state sought to try the defendant for the robbery of the six victims successively despite his acquittal of the robbery of one of the victims in the first trial. See 397 U.S. at 439-40, 90 S.Ct. at 1192. We examine whether this distinction is fatal to the defendant’s argument.
Unlike the first trial in Ashe, which resulted in a final verdict of acquittal, the present murder trial resulted in a deadlocked jury. Thus, the jeopardy which attached at the time the jury was sworn did not end but is deemed to be continuing. See Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984) (concluding that when the trial court declares a mistrial after the jury deadlocks, the original jeopardy does not end). Furthermore, the jury’s purported resolution of the issue of the defendant’s mental disease or defect is not an issue “determined by a valid and final judgment” as required by Ashe. See 397 U.S. at 443, 90 S.Ct. at 1194. Although not conclusive to the present issue, we note that in the context of civil law, our supreme court has required a final judgment in the previous case before preclusion can occur under both the doctrines of res judicata and collateral estoppel. Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d at 459. This requirement is in keeping with the policy behind collateral estoppel of affirming the inherent reliability of judgments.
Furthermore, in analyzing whether a defendant timely filed a motion for new trial over thirty days after the jury’s verdict but before the trial court entered the judgment in a criminal case, our supreme court observed in dicta that neither res judicata or collateral estoppel apply in the absence of a judgment: “A verdict, before a judgment has been entered thereon, has no finality, cannot be executed, and cannot be pleaded in bar as res judicata or offered in evidence as collateral estoppel.” Neely v. State, 210 Tenn. 52, 56-57, 356 S.W.2d 401, 403 (Tenn.1962) (citations omitted). Although Neely preceded the Supreme Court’s holding in Ashe, which held that collateral estoppel in criminal cases derived from constitutional protections against double jeopardy, both Neely and Ashe require finality. See Ashe, 397 U.S. at 443, 90 S.Ct. at 1194; Neely, 210 Tenn. at 56-57, 356 S.W.2d at 403. We note that the Arizona high court has relied upon this language from Neely to hold that collateral estoppel in a criminal case requires a judgment in the previous action and, in fact, that “the force of the estoppel is the judgment itself.” State v. Williams, 131 Ariz. 211, 639 P.2d 1036, 1038 (1982) (concluding that a trial court’s finding that the state did not establish that the defendant had violated his probation did not preclude a subsequent prosecution for the sexual assault that formed the basis of the state’s evidence at the revocation hearing).
The Seventh Circuit has applied the principles of collateral estoppel when the first jury acquitted the defendant of some counts but deadlocked on other counts. United States v. Bailin, 977 F.2d 270, 276 (7th Cir.1992). Noting that the original jeopardy is deemed to continue in the event of a hung jury, the court concluded that issue preclusion arising out of separate counts of the first trial is not collateral: “Issue preclusion “within the confines of a single claim or cause of action’ is known as ‘direct estoppel.’ ” Id. at 276 (quoting 18 Charles A. Wright, et al., Federal Practice & Procedure § 4418, at 169 (1981)). The court held that direct estoppel applies in a criminal case to bar the government from relitigating issues in the retrial of the mistried counts that were “necessarily and finally decided in the defendant’s favor by reason of the jury’s partial acquittal on other counts.” Bailin, 977 F.2d at 276.
Direct estoppel prevents a party from relitigating a fact which was already determined against it in “a decision that finally disposes of a part of a claim on the merits but does not preclude all further action on the remainder of the claim; issues common to both parts of the claim are precluded, even though new issues remain to be decided.”
Id. (quoting Wright, supra, § 4418, at 169-70).
The Third Circuit explored the meaning of the necessary and final determination of an issue for purposes of collateral estoppel in United States v. Console, 13 F.3d 641 (3d Cir.1993). The defendant was acquitted of some counts of mail fraud, but the jury was not able to reach a verdict on his Racketeering Influenced Corrupt Organizations Act (RICO) counts and other mail fraud counts. The defendant argued that the trial court erred in denying his request for special verdicts on the predicate offenses in the RICO counts and that this error foreclosed his use of collateral estoppel to preclude retrial on those predicate counts. The court held that a defendant has no right to special verdicts on the elements of the offense and that the decision to submit special interrogatories to the jury regarding the elements of the offense- is within the court’s discretion. Id. at 663. The court also explained that even if the trial court had submitted interrogatories to the jury and the jury had found that the predicate acts had not been established, collateral estoppel or direct estoppel under Bailin would not preclude retrial on the predicate offenses because responses to special interrogatories are not “final” judgments or “necessary” to a final judgment. Id. at 664-66. The court reasoned that the predicate offense was not a RICO violation but merely one element of the offense. Id. at 664 n. 27. Thus, the Third Circuit concluded that a factual finding on a count that eventually results in a mistrial due to a hung jury does not preclude relitigation of that issue on retrial. Id. at 664-65.
In contrast, a North Carolina appellate court has determined that a jury’s special verdict on the court’s jurisdiction precluded relitigation of that issue upon retrial even though the jury was deadlocked on the defendant’s guilt. State v. Dial, 122 N.C.App. 298, 470 S.E.2d 84, 89 (1996). In Dial, the defendant, a Virginia resident, was charged with the first degree murder of a Virginia resident, whose body washed onto a North Carolina beach. At the first trial, the jury returned a special verdict on jurisdiction but deadlocked on the defendant’s guilt. On retrial, the defendant was convicted of second degree murder, and he argued on appeal that the trial court erroneously refused to set aside the special verdict. Analyzing the case in terms of collateral estoppel as derived from res judicata, the appellate court observed that when “ ‘a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.’” Id. at 89 (quoting Humphrey v. Faison, 247 N.C. 127, 133, 100 S.E.2d 524, 529 (N.C.1957) (internal quotation marks omitted)). The court held that the special verdict met all of the prerequisites for issue preclusion:
(1) the parties are the same; (2) the issue as to jurisdiction is the same; (3) the issue was raised and actually litigated in the prior action; (4) jurisdiction was material and relevant to the disposition of the prior action; and (5) the determination as to jurisdiction was necessary and essential to the resulting judgment.
Id. at 89.
The North Carolina appellate court did not require a final judgment in the first trial in order for an issue resolved in the first trial to preclude the same issue in a subsequent trial. See id. at 89. We believe, though, that the court’s failure to require a final judgment is inconsistent with the requirement of a final judgment for the application of res judicata based collateral estoppel under Tennessee case law. See Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d at 459. Furthermore, as previously noted, our supreme court has stated that a final judgment is required before collateral estoppel can bar retrial of an issue in a criminal case. Neely, 210 Tenn. at 56-57, 356 S.W.2d at 403. This is consistent with the United States Supreme Court’s requirement that the issue to be precluded must have been “determined by a valid and final judgment.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194.
In the context of an acquittal, we note that as a practical matter, there is no need for a judgment for jeopardy to bar a retrial of the issue. It is a “deeply entrenched principle of our criminal law that once a person has been acquitted of an offense he cannot be prosecuted again on the same charge.” Green v. United States, 355 U.S. 184, 192, 78 S.Ct. 221, 226 (1957). For instance, a conviction on a lesser included offense constitutes an implied acquittal of the greater offense if the jury had an opportunity to consider the greater offense before considering the lesser. Id. at 190-91, 78 S.Ct. at 225; State v. Madkins, 989 S.W.2d 697, 699 (Tenn.1999). In that situation, double jeopardy protections prohibit a retrial on the greater offense. Green, 355 U.S. at 190, 78 S.Ct. at 225; Madkins, 989 S.W.2d at 699. In fact, in Ashe, which required a final judgment for collateral estoppel to preclude the relitigation of an issue, the defendant was acquitted in the first trial. 397 U.S. at 446, 90 S.Ct. at 1195-96. In other words, an acquittal enjoys the same finality as a judgment of conviction and, in this respect, bars retrial of issues necessarily decided by the acquittal.
Although not germane to the present case, we note in passing that bifurcated proceedings in which the determination of guilt is separate from that of punishment proceed differently. We do not allow the retrial of guilt when a retrial is ordered on punishment although no final judgment yet exists. See, e.g., Hunter v. State, 496 S.W.2d 900, 903 (Tenn.1972) (remanding for retrial on only the penalty phase of a capital case); State v. Ward, 810 S.W.2d 158, 159 (Tenn.Crim.App.1991) (affirming a retrial on the enhancement count of the indictment charging second offense DUI following a hung jury); State v. Freeman, 669 S.W.2d 688, 692 (Tenn.Crim.App.1983) (affirming retrial of the habitual criminal count following a hung jury); State v. Hall, 667 S.W.2d 507, 510 (Tenn.Crim.App.1983) (affirming retrial of the habitual criminal count following a hung jury).
In light of the continuing jeopardy in the case of a mistrial resulting from a deadlocked jury, we believe that the better reasoned approach is that a factual finding by a jury on a deadlocked count cannot preclude a jury from reconsidering that issue in a second trial. In the present case, the jury’s purported factual determination regarding the defendant’s mental disease lacks even the finality of a special verdict much less the weight of a judgment and does not equate to a final disposition of that part of the case on the merits. Clearly, the jury’s gratuitous statement that it could agree that the defendant had a mental disease or defect is not an acquittal of the defendant on any count in the presentment. Even if we assume that the jury’s statement amounts to a partial resolution of the insanity issue, it has no preclusive effect because it lacks the requisite finality in terms of ending the proceedings of a judgment or an acquittal. For these reasons, the jury’s statement in its February 12 note does not have a preclusive effect on a retrial of the defendant’s first degree murder charges.
Finally, in his reply brief, the defendant asserts that the jury’s finding that he had a mental disease or defect mandates a verdict of not guilty by reason of insanity. He argues that the jury’s finding on mental disease or defect indicates that they rejected the testimony of Dr. Speigel, the state’s expert who deemed that the defendant was not insane. He contends that even considering Dr. Speigel’s testimony, the evidence was insufficient to support a finding that the defendant had the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law. Thus, he argues that double jeopardy bars a retrial and requires that a finding of not guilty by reason of insanity be entered.
Initially, we note that in support of this expansive assertion, the defendant cites only the jury’s February 12 note and the trial court’s instructions on the insanity defense. The Tennessee Rules of Criminal Procedure require that appellants support the issues they seek to raise with argument, citation to authorities, and appropriate references to the record. Tenn. R.Crim. P. 10(b). In any event, this court denied the defendant’s Rule 10,
T.R.A.P., application to appeal on the issue of sufficiency of the evidence because, as discussed above, the jeopardy that, attached with the swearing of the jury in this case has not ended. State v. Thomas Dee Huskey, No. 03C01-9903-CR-00125, Knox County (Tenn.Crim.App. Apr. 26, 1999) (order), app. denied (Tenn. Sept. 13, 1999); see Richardson, 468 U.S. at 325, 104 S.Ct. at 3086; State v. Bruce, 604 S.W.2d 889, 890 (Tenn. Crim.App.1980) (holding that an interlocutory appeal to review the trial court’s denial of a judgment of acquittal is not appropriate following a misfrial due to a deadlocked jury). The jury’s inability to reach a verdict does not terminate jeopardy. Richardson, 468 U.S. at 325, 104 S.Ct. at 3086. For this reason, the defendant may not challenge the sufficiency of the evidence at the first trial in order to bar a second trial:
The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at [the defendant’s] first trial, he has no valid double jeopardy claim to prevent his retrial.
Id. at 326, 104 S.Ct. at 3086. Thus, any insufficiency in the evidence at the first trial would not bar a retrial in this case.
IV. CONCLUSION
In light of the foregoing and the record as a whole, we hold that double jeopardy does not bar the retrial of the defendant on the four counts of first degree murder.
We remand the ease to the trial court for further proceedings.
STATE of Tennessee v. Thomas Dee HUSKEY.
Court of Criminal Appeals of Tennessee, at Knoxville.
March 26, 2002.
Order Denying Petition to Correct April 19, 2002.
Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee Huskey.
Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney General; Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.
W. Thomas Dillard, Knoxville, Tennessee, and Martin S. Piñales, Cincinnati, Ohio, for the Amicus Curiae, National Association of Criminal Defense Lawyers.
Paula R. Voss and Richard L. Gaines, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.
Randall E. Reagan, Knoxville, Tennessee, for the Amicus Curiae, Knoxville Defense Lawyers Association.
[OPINION BY JOSEPH M. TIPTON, J., type=majority]
OPINION
JOSEPH M. TIPTON, J.,
delivered the opinion of the court, in which
NORMA McGEE OGLE, J., joined.
The defendant, Thomas Dee Huskey, brings this extraordinary appeal in which he challenges the order of the Knox County Criminal Court removing his lead counsel of record for his retrial on four counts of first degree murder. The defendant asserts that the trial court’s action is an infringement on his Sixth Amendment right to counsel. We conclude that the trial court’s order violated the defendant’s right to counsel and exceeded its discretion. We vacate the trial court’s order and remand the case for further proceedings.
We granted the defendant’s application for an extraordinary appeal pursuant to Rule 10, T.R.A.P., to consider whether the trial court erred in discharging appointed counsel from further representation of the defendant based on its finding that counsel’s approach to litigation constituted “an abuse of the legitimate functioning of the legal system.” The precise issue is a novel one in Tennessee. However, given the nature of the pending litigation and our view of the nature and consequences of the trial court’s error, we believe that pretrial review is necessary and will prevent needless waste of time, costs and resources that would occur with post-trial review.
FACTS AND PROCEDURAL HISTORY
In June 1993, the defendant was indicted in the Knox County Criminal Court in case number 51903 for four counts of first degree murder. The defendant was also indicted and convicted in case numbers 49828, 49829, 49830, and 50090 (hereinafter, generally referred to as the “Hanshaw” and the “Consolidated” rape cases) for multiple rapes, robberies, and kidnappings committed against several victims. Mr. Moncier’s representation of the defendant began with his appointment in these cases, which are presently pending on appeal. In the murder case, the prosecution filed notice of its intent to seek the death penalty for each offense. Attorneys Herbert S. Moncier and Gregory P. Isaacs were appointed to represent the defendant as lead counsel and co-counsel, respectively.
The murder trial began in January 1999. After deliberating for over four days, the juiy was. unable to reach a unanimous decision and was discharged pursuant to a mistrial. At the conclusion of the proceedings, this court granted the defendant an interlocutory appeal on the question of whether constitutional protections against double jeopardy prohibited him from being retried on the capital murder charges. We held that double jeopardy did not bar the defendant’s retrial and remanded the case to the trial court for further proceedings. See State v. Huskey, 66 S.W.3d 905 (Tenn.Crim.App.2001), app. denied (Tenn. Dec. 10, 2001). Presently, the defendant awaits retrial in Knox County Criminal Court on the first degree murder charges, and the state has again filed a notice of its intent to seek the death penalty.
On January 7, 2002, the trial court, without a hearing, entered sua sponte an order removing Mr. Moncier from further representation of the defendant on his retrial for capital murder. The trial court’s order was apparently prompted by the filing of ten separate pretrial motions by Mr. Mon-ciermn December 21, 2001, the order noting “motions for discovery, motion for Brady disclosures, renewed motion for a Bill of Particulars, motions to dismiss the Presentment, motions for change of venue, etc....” A reading of the entire order, however, suggests that the filing of these particular motions was simply the “straw that broke the camel’s back.”
In its order, the trial court stated its belief that Mr. Moncier’s “approach to litigation” constitutes “an abuse of the legitimate functioning of the legal system.” The court considered it had the obligation to end the abuse pursuant to its authority under Rule 13, Tenn. S.Ct. R., to appoint legal counsel to indigent defendants in criminal cases and to monitor generally and approve the payment of reasonable fee and expense requests by appointed counsel, subject to final approval by the supreme court. The court conceded that removing Mr. Moncier due to his abusive approach to litigation was “wholly distinct” from more common circumstances in which a trial court has removed counsel from an ongoing case, noting that the removal of counsel is more often prompted by a defendant’s dissatisfaction with his attorney or counsel’s request to withdraw due to a serious conflict or disability. The trial court concluded that this case nevertheless presented “compelling and overwhelming” reasons for removing Mr. Moncier.
The court cited the “countless motion hearings requiring several hundred hours of courtroom time” in this case; the nearly 30,000 pages of trial transcript; and the thousands of additional pages of pleadings, “the overwhelming majority” of which were generated by Mr. Moncier. In addition, the court found that a review of Mr. Moncier’s appellate practice with respect to the defendant’s cases “provides further insight.” The court stated that Mr. Moncier had filed “at least 24 separate appeals” to this court or our supreme court, only two of which were appeals as of right, and noted that in “each and every one” of the remaining cases where the defendant sought appellate relief, the applications were dismissed, relief was denied, or there were rulings adverse to the defendant’s position. The trial court noted it had previously addressed Mr. Moncier’s motion practice, as quoted in its May 1999 order in which it reviewed and disallowed a portion of Mr. Moncier’s claimed legal fees following the conclusion of the first murder trial:
As has previously been noted by this court, counsel for Mr. Huskey have filed an unprecedented number of pleadings in this multi-faceted case. The overwhelming majority of the pleadings (over ninety-five percent) have been generated by Mr. Moncier. In this court’s judgment many of those pleadings were duplicitous, repetitive and unnecessary to appropriately represent Mr. Huskey. Further, many of the pleadings were unnecessarily lengthy and contained needless surplusage. Examples of such pleadings include the motions for speedy trial, motions for new trial, motions to recuse the court, and motions to recuse the prosecutor, where the original motion is amended numerous times with the same or similar issues raised in a slightly different light. Other examples include many of the pleadings filed on the issue of mental examination of the defendant where, faced with definitive rulings by the trial and appellate courts, counsel continued to raise previously ruled upon issues. Yet other examples include counsel’s repeated request to apply a heightened standard of due process or for discovery of exculpatory evidence when all of those issues were exhaustively and extensively ruled upon by the court.
Upon the filing of the ten aforementioned pretrial motions by Mr. Moncier, the trial court concluded that “there is no indication that anything has changed.” The trial court observed:
This court is of the opinion that there is no rational explanation for or reasonable justification of this approach to litigation, that is, where the same or substantially identical issues are raised in multiple pleadings; or issues for which previous definitive rulings already exist are raised again; or where the same relief is sought time and again where it has been previously granted. This is plainly litigation for the sake of litigation.
If counsel were retained instead of appointed, and being paid an hourly fee for the representation, no rational client would authorize [his or her] lawyer to seek relief that had already been granted, or allow [the lawyer] to again raise an issue that has been the subject of a clear recent ruling. Further, in reviewing all the other capital cases handled by this court since 1992, no other lawyer, which includes the very best of those who practice in East Tennessee, has approached litigation as Mr. Moneier has in these cases. While many of the same issues may be raised in other capital cases, they are raised, litigated, and decided on one, rather than multiple occasions.
In this case the state and [its] taxpayers [are] obligated to pay for the reasonable competent representation of Mr. Huskey. This court has absolutely no hesitation in providing Mr. Huskey with the best legal services available consistent with the system designed by our Supreme Court to provide those services. When that system is abused, however, as we believe it has been abused here, so as to pervert [its] effective implementation, we believe it is the obligation of the court to take appropriate action to eliminate that abuse. In this case we believe that appropriate action is to remove Mr. Moneier from further representation of Mr. Huskey in the four capital murder counts that have been remanded for retrial.
As a- result, the court appointed Mr. Isaacs as the defendant’s new lead counsel and solicited suggestions for the appointment of co-counsel. On that same day, the defendant filed an application for extraordinary appeal seeking review of the order discharging Mr. Moneier as the defendant’s counsel.
Concluding that the removal of counsel “so far departed from the accepted and usual course of judicial proceedings” that immediate review was required, we granted the defendant’s Rule 10 application pursuant to Rule 10, T.R.A.P. In the interest of expediting this matter pursuant to Rules 2 and 10(d), T.R.A.P., we resolve the appeal on the basis of the application and response before us, including the brief of amici curiae, and without further briefing or argument by the parties.
I. RIGHT TO COUNSEL
We begin with the guarantee of the defendant’s right to counsel, grounded in the Sixth Amendment of the United States Constitution and also granted by article I, section 9, of the Tennessee Constitution. The Sixth Amendment requires that “ ‘the accused shall enjoy the right ... to have the Assistance of Counsel for his defense’ ” in state criminal prosecutions. Gideon v. Wainwright, 372 U.S. 335, 339, 345, 83 S.Ct. 792, 794, 797, 9 L.Ed.2d 799 (1963) (quoting U.S. Const, amend. VI). The right to the assistance of counsel at trial, however, does not guarantee that a criminal defendant will be represented by a particular attorney. While a criminal defendant who desires and is financially able to retain his own counsel “should .be afforded a fair opportunity to secure counsel of his own choice,” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); an indigent defendant has no absolute right to counsel of his choice. See United States v. Davis, 604 F.2d 474, 478 (7th Cir.1979). Moreover, the Sixth Amendment’s protection includes no guarantee of the right to a meaningful relationship between an accused and his counsel, whether counsel be appointed or retained. Morris v. Sloppy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983); State v. Carruthers, 35 S.W.3d 516, 546 (Tenn.2000). The right to be represented by counsel of one’s choice is qualified and “must be balanced against the requirements of the fair and proper administration of justice.” United States v. Micke, 859 F.2d 473, 480 (7th Cir.1988).
The trial court’s action in matters regarding the appointment and relief of counsel will not be set aside on appeal unless an abuse of discretion is shown. State v. Rubio, 746 S.W.2d 732, 737 (Tenn. Crim.App.1987). At the same time, in cases “involving the life or liberty of the citizens, this discretion entrusted to the courts should be carefully and cautiously exercised; and where this court can see that the rights of a party may have been jeopardized by an improper exercise of this judicial discretion it will not hesitate to reverse for that cause.” Kizer v. State, 80 Tenn. 564, 567 (1883); see also State v. Freida Kiibum Hayes, No. 3, Obion County, slip op. at 6, 1988 WL 119335, at *3 (Tenn.Crim.App. Nov. 9, 1988) (citing Kizer, 80 Tenn. at 567) (“Because this is a right that belongs to the defendant, any decision by a trial court to restrict the defendant’s choice of counsel should be carefully and cautiously considered on appeal.”).
In this case, no dispute exists that the defendant is indigent and was therefore entitled to the appointment of trial counsel. See Tenn. S.Ct. R. 13, § 3(b) (providing that an indigent defendant in a capital case is entitled to the appointment of two attorneys, a “lead counsel” and a “co-counsel” in his defense). The defendant also acknowledges that an accused is not entitled to the appointment of a particular attorney at the outset of an adversary proceeding. Rather, he urges that once an attorney-client relationship is established, the trial court cannot arbitrarily interfere with this relationship. Amici, as well, assert that the right to counsel implicated in this case is the right of the defendant “to continuity of counsel of his choice.”
II. CONTINUITY OF COUNSEL
We are persuaded by the principles relied upon in the following cases that any meaningful distinction between indigent and non-indigent defendants’ right to representation by counsel ends once a valid appointment of counsel has been made. In Smith v. Superior Court of Los Angeles County, 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65 (1968), the California Supreme Court acknowledged the general principle that an indigent accused may not demand the appointment of counsel of his choice. The court concluded, however, that, in the face of the defendant’s attempt, not to establish or change, but to preserve the relationship with his counsel, any attempt to distinguish between appointed and retained counsel was meaningless. The court stated:
[W]e must consider whether a court-appointed counsel may be dismissed, over the defendant’s objection, in circumstances in which a retained counsel could not be removed. A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary: it involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an, attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.
Id., 68 Cal.Rptr. 1, 440 P.2d at 74 (citations omitted).
Citing its “complete agreement” with these observations in Smith, the Supreme Court of Alaska has declared, “Preservation of the right to proceed with one’s chosen counsel is not mere constitutional formalism.” McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974).
Once counsel has been appointed, and the defendant has reposed his trust and confidence in the attorney assigned to represent him, the trial judge may not, consistent with the United States and Alaska constitutions, rend that relationship by dismissing the originally appointed attorney and then thrusting unfamiliar and unwelcome counsel upon the defendant. The attorney-client relationship, once established, is inviolate, and may not be severed or otherwise intruded upon.
Id. at 22-23 (citing Smith, 68 Cal.Rptr. 1, 440 P.2d at 75). As these decisions reflect, “once counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial.” English v. State, 8 Md.App. 330, 259 A.2d 822, 826 (1969) (emphasis in original).
Thus, we will view the defendant’s right to lead counsel’s continuing representation through appointment in the same manner as if he were retained by the defendant. With this in mind, we also do not believe that the existence of co-counsel lessens the defendant’s right to lead counsel’s assistance.
III. REMOVAL OF COUNSEL
The issue now relates to whether and under what circumstances the trial court may remove counsel, over the objection of counsel and the defendant, once adversary proceedings have begun. The defendant asserts that counsel cannot be discharged based on the trial court’s “predilections, sensitivities, or displeasure with counsel’s representation of Mr. Huskey unless the Court finds that counsel is not providing the accused the effective assistance of counsel.” The state agrees that the relationship may not be arbitrarily ended by the trial court but asserts that the trial court in this case properly exercised its discretion to remove counsel.
Some circumstances demand the removal or disqualification of counsel in the interest of justice, notwithstanding the implication of the defendant’s right to counsel. For example, “an accused is entitled to zealous representation by an attorney unfettered by a conflicting interest. To establish a denial of the sixth amendment right to counsel, it is sufficient to show that an actual conflict existed.” State v. Thompson, 768 S.W.2d 239, 245 (Tenn.1989) (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S.Ct. 1708, 1716-19, 64 L.Ed.2d 333 (1980)). Also, federal courts “must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 1700, 100 L.Ed.2d 140 (1988). Further, “[a]fl will agree that if the defendant’s attorney exhibits objective evidence of physical incapacity to proceed with a meaningful defense of his client ... the court need not sit idly by; it should inquire into the matter on its own motion, and if necessary relieve the affected counsel and order a substitution.” Smith, 68 Cal.Rptr. 1, 440 P.2d at 73; see also Tenn. S.Ct. R. 8, DR 2 — 110(B)(3) (providing for the mandatory withdrawal of an attorney whose “mental or physical condition renders it unreasonably difficult for the lawyer to carry out the employment effectively”).
The more difficult question before us is whether the trial court may remove defense counsel based on its finding that counsel’s approach to litigation is an abuse of the legal system. A review of decisions from other jurisdictions reflects that, in the context of the right of a defendant to continued representation by a particular attorney, absent the consent of the defendant or counsel, the removal of counsel on the trial court’s own motion is allowed on a very limited basis.
In Smith, described by at least one court as the “lead case” on the subject, People v. Johnson, 215 Mich.App. 658, 547 N.W.2d 65, 69 (1996), the California Supreme Court decided the “unprecedented issue of whether a trial judge has or should have the power to remove a court-appointed defense attorney, over the objections of both the attorney and the defendant, on the ground of the judge’s subjective opinion that the attorney is ‘incompetent’” to proceed. Smith, 68 Cal.Rptr. 1, 440 P.2d at 66. The court acknowledged the trial court’s duty to ensure that the defendant is provided the effective assistance of counsel. “But in discharging that duty the judge must be on his guard neither to infringe upon the defendant’s right to counsel of his choice, nor to compromise the independence of the bar.” Id., 68 CaLRptr. 1, 440 P.2d at 72. The court determined that the “inhibition imposed on a defense attorney by [the threat of removal] constitutes a serious and unwarranted impairment of his client’s right to counsel.” Id., 68 Cal.Rptr. 1, 440 P.2d at 74. It stated:
[T]he constitutional guarantee of the defendant’s right to counsel requires that his advocate, whether retained or appointed, be free in all cases of the threat that he may be summarily relieved as “incompetent” by the very trial judge he is duty-bound to attempt to convince of the rightness of his client’s cause. Here ... “the recognition of such an authority would involve the surrender of a substantial amount of the independence of the bar, and, in many instances would deprive litigants of a fair hearing.”
Id, 68 Cal.Rptr. 1, 440 P.2d at 75 (quoting Gallagher v. Municipal Court of Los Angeles, 31 Cal.2d 784, 192 P.2d 905, 914 (1948)). The court concluded that when removal is permitted at all, it requires objective evidence of counsel’s physical incapacity to continue or serious misconduct by counsel which cannot be addressed through other reasonable measures. Id., 68 Cal.Rptr. 1, 440 P.2d at 72-74.
As summarized in an earlier decision, California courts have emphasized that
the state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources— and that that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.
People v. Crovedi, 65 Cal.2d 199, 53 Cal. Rptr. 284, 417 P.2d 868, 874 (1966). In the present case, the state suggests that such language denotes that California has adopted a “broader standard” than other jurisdictions that have considered the involuntary removal of counsel. Based on our review of relevant cases, however, we are not convinced that this is the case. California decisions continue to reflect that the trial court’s discretion to remove counsel absent the consent of the defendant and his counsel is “severely limited,” and that “[cjourts should seek an accommodation reasonable under the facts of the particular case.” People v. Lucev, 188 Cal. App.3d 551, 233 Cal.Rptr. 222, 225 (1986) (citing People v. Courts, 37 Cal.3d 784, 210 CaLRptr. 193, 693 P.2d 778, 781 (1985)). Decisions of the California courts as well as those of other jurisdictions similarly illustrate the balancing of interests that a trial court must undertake when determining whether the removal of counsel is justified under the circumstances of a particular case to the end that “a reasonable accommodation of seemingly conflicting values shall thereby be achieved.” Crovedi 53 Cal.Rptr. 284, 417 P.2d at 874.
In Harling v. United States, 387 A.2d 1101 (D.C.1978), the District of Columbia Court of Appeals similarly determined that while the right to assistance of chosen counsel is not absolute, a court may not arbitrarily infringe upon it. The court stated that “[g]ross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt -may justify the court’s removal of an attorney, even over the defendant’s objection.” Id. at 1105. However, “[m]ere disagreement as to the conduct of the defense certainly is not sufficient to permit the removal of any attorney.” Id.
Finally, the Texas Court of Criminal Appeals has rejected the authority of a trial court to remove counsel based on its apparent dislike for counsel’s conduct of the case. Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Crim.App.1989). While pointing with approval to the “unquestionable prec-edential value” of the decisions in Smith and Harling, among others, the Steames court noted, however, that the case “reveals a more serious misuse of judicial power” than those cited because the trial court “chose not to remove trial counsel for his incompetence but for his competence.” Id. at 223.
Recognizing that the right of a defendant to his chosen counsel is not absolute, courts in other cases have also held that the trial court’s removal of an appointed counsel from an ongoing representation of a defendant, over the objection of the defendant and his attorney, was beyond its discretion. See, e.g., Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991) (holding that the trial court’s termination of appointed counsel, over the objection of the defendant and counsel, was an arbitrary action and violated the defendant’s right to counsel when defendant was forced to choose between accepting new counsel and being granted a continuance to prepare for trial or retaining original counsel and being forced to proceed immediately to trial while unprepared); Johnson, 547 N.W.2d at 69 (holding that the trial court improperly relieved appointed counsel based on counsel’s challenge to the court’s “interim investigation orders” and thereby violated defendant’s Sixth Amendment right to counsel); Welfare of M.R.S., 400 N.W.2d 147 (Minn.Ct.App.1987) (holding that the trial court’s summary dismissal of a juvenile’s appointed counsel during appeal and after counsel had moved the court to disqualify itself was arbitrary, a clear abuse of discretion and a violation of the juvenile’s right to counsel); McKinnon v. State, 526 P.2d 18 (Alaska 1974) (holding that the removal of the defendant’s appointed attorney, over the defendant’s protest, on trial court’s belief that counsel was inadequately prepared for trial, was not within court’s authority and deprived the defendant of his right to counsel of his choice); In re Civ. Contempt Proc. Concerning Richard, 373 N.W.2d 429 (S.D. 1985) (granting extraordinary relief and setting aside order of trial court discharging attorney appointed to represent a grand jury witness after attorney was held in contempt for rejecting an offer of immunity).
IV. REMOVAL OF COUNSEL AND LESS DRASTIC MEASURES
Returning to the present case, we consider whether the removal of Mr. Moncier was the proper response to the trial court’s finding that counsel’s motion practice constituted an abuse of the system. As we noted, Mr. Moncier has represented the defendant in the capital murder case before, during, and after the first trial. In each of the thirty-one major felony offenses with which the defendant was originally charged, the defendant has been represented by Mr. Moncier. In the murder case alone, counsel has represented the defendant for nearly ten years. In other words, we are presented with a long-established attorney-client relationship. Moreover, we remain mindful of the fact, and consider it significant, that Mr. Moncier has seen the defendant’s cases through three trials with the present trial court presiding. Obviously, the wheels of justice have continued to turn.
We are reluctant for any court to place limits on an attorney’s ability to conduct his or her case within the bounds of the obligation to represent the client zealously, but a court may step in when counsel’s actions become overzealous. In this regard, convinced of its obligation to end what it viewed as counsel’s continuing abuse of the legal system and faced with an approaching trial, the trial court in this case decided that the only remedy in this case was to remove Mr. Moncier. However, we cannot agree. We believe that the trial court improperly chose the most drastic action available. The Tennessee Court of Appeals has recognized that removal of counsel should only occur when no other options exist.
A trial court has a broad range of options available to insure that its proceedings are fair both in appearance and in fact. Disqualifying an attorney is the most drastic. It invariably causes delay, increases costs, and deprives parties of counsel of their choice. Courts should, therefore, disqualify counsel with considerable reluctance and only when no other practical alternative exists.
In re: Ellis, 822 S.W.2d 602, 605 (Tenn.Ct.App.1991) (citations omitted). We agree. We conclude that counsel’s motion practice in this case demanded from the trial court measured responses in an effort to address perceived problems with counsel before counsel was summarily removed.
This also means' that it was inappropriate for the trial court to remove counsel summarily without a hearing or prior warning of the court’s concerns. Nothing in the facts suggests it was necessary for the trial court to proceed sua sponte, without a hearing and without an opportunity for the defense to be heard concerning the issue of the right to have lead counsel remain in the case.
We stress, though, that we are not condoning the actions that concerned the trial court. The motion practice in this case indicates a tendency to rush to filing without due consideration or attention to detail by counsel, resulting in unnecessary, multiple amendments being filed. Also, counsel undoubtedly filed numerous motions that, on their face, assert the same claims as other motions. Our review of the pretrial motions filed by Mr. Moncier on December 21, 2001, which appear to have precipitated the trial court’s action, reflects that the motions include claims that are being reasserted without apparent justification on their face for such reassertion. For example, every one of these separate motions asserts, “Because this is a capital murder prosecution, this Court is to apply a heightened standard of due process of law in its consideration of this issue.” The record reveals, though, that counsel previously moved the trial court to apply a heightened standard of due process in the case and the court granted the motion. Nevertheless, counsel now reasserts the claim in every pretrial pleading he has filed thus far. Likewise, in each motion counsel “continues to move that [the trial court] disqualify itself prior to any further ruling in this case or on this motion.” However, in our order denying interlocutory review on the issue of the disqualification of the trial court, we noted that the trial court reviewed and separately addressed at least eighteen motions in which counsel alleged over one hundred reasons in support of disqualification. We believe that absent some new event that has not been yet alleged, these repeated “motions” to disqualify the trial court reassert a claim upon which the trial court has previously ruled.
As another example, the defense moved the trial court on December 21 to rule on its pending “motion to suppress all evidence obtained as a result of the illegal confinement of defendant on a City of Knoxville municipal offense of soliciting for prostitution.” Again, the trial court has already ruled on this issue in both the murder case and the rape cases. As counsel is fully aware, the defendant has challenged the trial court’s ruling in his pending appeals of the rape cases. These are but a few examples of the types of pleadings filed by counsel that understandably taxed the trial court’s patience.
On the other hand, we recognize the sanctity of the position of defense counsel in criminal cases. It is counsel’s duty “to represent the client zealously within the bounds of the law,” which encompasses the right to “seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue, or defense.” See Tenn. S.Ct. R. 8, EC 7-1. As set forth in the Standards for Criminal Justice of the American Bar Association, the “basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused’s counselor and advocate with courage and devotion and -to render effective, quality representation.” ABA Standards for Criminal Justice Prosecution Function and Defense Function, Std. 4 — 1.2(b) (3d ed. 1998). Moreover, because “the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused.” Id. at Std. 4-1.2(c). No one would question the fact that Mr. Moncier’s efforts on behalf of the defendant have been extraordinary. And the mere fact that his motion filing is prolific or the fact that he has sought interlocutory review on many occasions does not deserve remonstration. Yet, zealous advocacy does not justify repetitive or unnecessarily prolix motions.
While we are not unsympathetic to the challenges that the trial court has faced in presiding over the defendant’s cases during the past several years, we view its removal of Mr. Moncier as counsel in response to his motion practice to be unwarranted, because it failed to do the balancing that a trial court must undertake of its “inherent power to control the exercise of the administration of justice,” and its obligation to protect the defendant’s right to the effective assistance of his counsel of choice. United States v. Gallop, 838 F.2d 105, 107 (4th Cir.1988). Other options than removal exist. As the Alaska Supreme Court has stated: “The court may censure the obstructive attorney, or request the bar association to take disciplinary action. Or the court may assess a fíne or impose a term of imprisonment under its contempt power.” McKinnon, 526 P.2d at 23. The court believed that “these methods ... [are] likely to prove substantially more efficacious than the summary removal of counsel, which, in the final analysis, only penalizes the defendant.” Id. at 24. These are not the only options available to the trial court. As the trial court has previously done, it can reject counsel’s claims for compensation relative to inappropriate time spent — or wasted — on unnecessary matters. In this respect, co-counsel’s obligations regarding pleadings are the same as lead counsel’s, and he, too, may be held accountable for his approval of them.
We also note that motions raising issues upon which the court has already ruled are subject to summary denial without further hearing. Such is true even though the new motion mentions some additional nuance or fact, if the trial court concludes that the new allegation is inconsequential. Moreover, the trial court can require counsel who is filing repetitive motions to provide in the pleading the factual and legal bases that justify the reassertion of the claim, the date(s) of previous similar motion(s), and the date(s) and relevant ruhng(s) of the court. Such information would permit the trial court to assess efficiently whether a particular filing should be denied as previously determined.
We do not direct the trial court to any particular remedy in this case, but we conclude that the more reasoned approach is for the trial court to exhaust other possible remedies before resorting to the removal of counsel. As has been aptly stated, “the involuntary removal of any attorney is a severe limitation on a defendant’s right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed.” Cannon v. Comm’n on Judicial Qualifications, 14 Cal.3d 678, 122 Cal.Rptr. 778, 537 P.2d 898, 911 (1975).
CONCLUSION
Based on all of the foregoing considerations, we hold that the trial court’s removal of lead counsel in this case based on the court’s finding of an abusive approach to litigation by counsel exceeded its discretion and violated the defendant’s right to counsel. We vacate the trial court’s order removing Mr. Moncier as the defendant’s lead counsel in this case and remand the case for further proceedings.
GARY R. WADE, P.J., filed a dissenting opinion.
[OPINION BY GARY R. WADE, P.J., PER CURIAM. type=dissent]
GARY R. WADE, P.J.,
dissenting.
As acknowledged by the majority in its carefully considered opinion, trial judges are vested with broad discretionary powers in the conduct of a trial. Courts must monitor all attorney conduct and may direct a remedy if the performance impedes the orderly administration of justice. United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir.1976). That authority necessarily includes the supervision of appointed counsel for indigent defendants. Moncier v. Ferrell, 990 S.W.2d 710 (Tenn.1998). An extraordinary appeal to this court on any issue relative to the supervision of the trial which requires immediate appellate review may be granted only in limited circumstances: (1) when the trial court has so far departed from the accepted and usual course of judicial proceedings as to require intervention; or (2) if necessary for a complete determination of the case. Tenn. R.App. P. 10.
In this instance, the majority concludes that the trial, judge has so far departed from the usual course, by disqualifying one of the two defense attorneys, that our intervention is necessary. I disagree. By disqualifying defense counsel, the trial judge has chosen an unusual, perhaps risky, course of action. The disqualification issue is well documented in this record and may serve as a basis for reversal on direct appeal and the grant of a new trial. While I strongly advocate the right to counsel and, in circumstances such as this, a qualified entitlement to the continued service of counsel, I also believe that the trial judge, vested with the duty and responsibility of supervision of the trial, must be afforded broad discretion in the conduct of the trial:
The right “cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.” The public has a strong interest in the prompt, effective, and efficient administration of justice; the public’s interest in the dispensation of justice that is not unreasonably delayed has great force.
State v. Zyla, 628 S.W.2d 39, 41-42 (Tenn.Crim.App.1981) (quoting United States v. Burton, 584 F.2d 485, 489-90 (D.C.Cir. 1978)). Someone must be in charge ... and held accountable for arbitrary decisions. This court should not, however, interfere at any time before the verdict absent overwhelming evidence that the trial judge has. abused its discretionary authority. -Any right to a continuation of counsel of choice “must be balanced against the requirements of the fair and proper administration of justice.” United States v. Micke, 859 F.2d 473, 480 (7th Cir.1988).
As acknowledged by the majority, there is some evidence of contumacious conduct on the part of defense counsel. For example, defense counsel typically begins each proceeding by lodging a renewal of a motion to disqualify the trial judge, often restating' the basis for the claim. That issue is preserved for posterity. Repeated renewals are unnecessary and wasteful of the resources already scarce in cases of this magnitude. So is the tedious reassertion of requests for other relief, already either granted or denied, and well documented for purposes of appeal.
The indictment was issued nine years ago. There is already a voluminous record. The defendant is entitled to a speedy trial. The public is entitled to an accountable judiciary. The trial judge has made a threshold showing of counsel misconduct. I fear that the remedy fashioned by the majority may further delay the trial and render the trial judge powerless to conduct the trial in an authoritative and expedient manner. In summary, I would have ruled that the extraordinary appeal should not have been granted and would have delayed consideration of the disqualification issue until the conclusion of the case. In the event of an acquittal or a negotiated plea agreement, an appeal is unlikely. It is only in the event of a conviction and direct appeal that the disqualification issue is mature for resolution.
ORDER
PER CURIAM.
The defendant has moved for the court to “correct” the opinion previously filed in this case by deleting a paragraph. He argues that the paragraph is incorrect on the facts and that it will result in the trial court’s denying him his day in court on the issue of the legality of the defendant’s confinement on a municipal offense of soliciting prostitution.
We do not view the paragraph in question to be incorrect. The issue of the legality of the defendant’s confinement and the municipal court’s authority therefor has been previously litigated. If the defendant is seeking to raise a new reason for claiming that his confinement was illegal, which has not yet been heard, we remain confident that the trial court will entertain a motion to reconsider which succinctly asserts the new claim, the legal and factual bases for the claim, why the claim was not raised before, and why it should be heard now.
We must, though, admonish counsel, who apparently refuses to leave well enough alone. By two footnotes, one about one-half page of single-spaced print that appears smaller than is allowed by Rule 30(a), T.R.A.P., counsel essentially “responds” to our filed opinion. We view this to be wholly irrelevant to the motion before us, unnecessary, a waste of this court’s time and a waste of paper. It is the very type of action from which counsel should refrain.
Although probably best left ignored, we note that as a matter of substance, counsel’s footnote “response” renders us somewhat incredulous. Counsel claims that his repeated claim that the trial court was to apply a “heightened standard of due process of law” results in his “long standing practice ... to always state in a paragraph the standard the trial court was to apply to that motion.” In reviewing defendant’s motion practice in the records on appeal from the homicide and rape cases, of which we take judicial notice, we conclude that counsel’s “long standing practice” appears to be the exception, not the rule.
Counsel also claims that his repeated motions to recuse — footnoted in every recent motion he has filed — result from his fear of waiving the issue. Given counsel’s legal experience and expertise, we view this claim to be disingenuous. Rather, we believe repetitive, rote filings of the same motion for the purpose of guarding generally against waiver border on abdication of responsibility to use professional judgment. Prolific motion practice may be justified through zealous advocacy, but such does not justify repeated motions that are wholly unnecessary when given a modicum of reasonable thought. Counsel needs to give all his assertions in his pleadings his highly capable considered judgment, not boilerplate treatment.
In consideration of our view of the opinion, we deny the defendant’s motion to correct the opinion.
TIPTON, J., WADE, P.J., and OGLE, J.
STATE of Tennessee v. Thomas Dee HUSKEY.
Court of Criminal Appeals of Tennessee, at Knoxville.
July 22, 2003 Session.
June 1, 2005.
Application for Permission to Appeal Denied by Supreme Court Oct. 31, 2005.
Paul G. Summers, Attorney General and Reporter; Gill R. Geldreich and Joseph F. Whalen, Assistant Attorneys General; Randall E. Nichols, District Attorney General, for the appellant, State of Tennessee.
Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellee, Thomas D. Huskey.
[OPINION BY JOSEPH M. TIPTON, J., type=majority]
OPINION
JOSEPH M. TIPTON, J.,
delivered the opinion of the court,
in which GARY R. WADE, P.J., and NORMA McGEE OGLE, J., joined.
The state has appealed the Knox County Criminal Court’s suppression of statements made to police by the defendant, Thomas Dee Huskey, and of items found and seized from his home. The state contends that (1) the trial court erred as a matter of law in suppressing the statements and (2) the trial court erred in suppressing the items found at the home (a) because the police arrested the defendant in good faith reliance upon a capias which subsequently was declared void and (b) because the defendant’s father consented to a search of the defendant’s room. The defendant asserts that if the state’s appeal is successful, then he contends that the trial court erred in prior rulings denying suppression of his statements and the items seized from his home on other myriad grounds raised by the defendant. We affirm the trial court.
The defendant is charged with four counts of first degree murder. His first trial ended in a mistrial because the jury could not reach a unanimous verdict. Pending the retrial, this court entered an opinion in the defendant’s consolidated appeal of multiple convictions including rapes, aggravated rapes, aggravated kidnapping, especially aggravated kidnapping, robbery, and aggravated robbery. See State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, Knox County, 2002 WL 1400059 (Tenn.Crim.App. June 28, 2002), reh’g denied, (Oct. 11, 2002) (the rape cases). This court affirmed the defendant’s convictions ' for offenses versus two victims but reversed the convictions regarding a third victim and remanded those charges for retrial. Some of the evidence reviewed and issues analyzed in that appeal are relevant to the resolution of this case.
In the rape cases, the defendant contended that the trial court erred by not suppressing statements he gave to law enforcement officers on November 9, 10, and 11, 1992. This court did not reach the merits of the suppression issues because it concluded that the trial court did not make adequate findings of fact for appellate review under the circumstances then existing. This court stated:
For example, the trial court has made no findings regarding members of law enforcement having contact with the defendant on November 4 and 5, 1992, in relation to Lieutenant Larry Johnson’s testimony that the defendant initiated contact with him and TBI Agent David Davenport on November 9, 1992. For instance, meetings with the defendant on November 4 and 5 may cast doubt upon the credibility of Lt. Johnson’s testimony regarding the questioning of the defendant. If the suppression of the statements is raised upon the retrial of [the victim’s] case, the trial court should make complete findings, and take proof if appropriate, with regard to the issues surrounding the suppression of the statements.
Id 2002 WL 1400059, at * 53, slip op. at 56-57.
Also in the rape cases, the defendant contended that the trial court erred by not suppressing as evidence the items seized during a search of his home. This court held that the search warrant obtained in Sevier County was invalid because it failed to list the name of the executing officer. Huskey, 2002 WL 1400059, at *40, slip op. at 54. This court also held that the capias issued by the Knoxville City Court upon which officers claimed the authority to arrest the defendant was void and invalid, thereby making the defendant’s arrest illegal. Relative to a remand of the case, this court stated:
In the present case, the trial court’s application of both the search incident to an arrest and the plain view exceptions require that the defendant’s arrest be valid. Our holding that the capias upon which the defendant was arrested is void calls the trial court’s reliance on these exceptions into question. Upon a retrial of [the victim’s] case, the trial court must reexamine the propriety of the warrantless search. In this regard, we note that although the trial court found that the defendant’s father consented to the search of his home, it did not determine whether the defendant’s father’s consent to search removed the need for a warrant. The trial court noted that the defendant’s parents had the right to enter the defendant’s bedroom as revealed by the defendant’s mother entering the room to turn down the radio or to leave laundry in the room but stated that it “just include[d] that as [the court’s] recollection of the facts in this case.” We do not foreclose the state from showing upon remand that the search was valid. • •
Id 2002 WL 1400059, at *52, slip op. at 55. Upon remand of the rape case, the parties addressed the suppression issues relative to this murder case. We note, though, that despite this court’s suggestion regarding the taking of additional proof, both the state and the defendant considered further proof unnecessary and requested the trial court to make its findings based upon the existing record. In separate orders, the trial court granted the defendant’s motions to suppress his statements and the physical evidence seized from his home. With each issue being separate and distinct, we will state the facts relevant to each issue as the issue is discussed.
I. DEFENDANT’S STATEMENTS
The state contends the trial court erred in ruling that the investigating officers did not “scrupulously honor” the defendant’s invocation of his right to remain silent under the rule announced in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). It also contends that the officers did not reinitiate interrogation of the defendant on November 9, 1992, in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The defendant argues that the investigating officers did not “scrupulously honor” his invocation of his right to remain silent on October 21, 1992, and that the officers’ reinitiation of contact with him after he invoked his right to counsel on October 30, 1992, constitutes a violation of Edwards. The defendant maintains that these violations more than support the trial court’s finding that the state failed to carry its burden to prove the defendant’s right to remain silent was scrupulously honored, and he asserts that the record also supports a finding that the officers violated his right to counsel by reinitiating contact with him on November 4, 5, and 9, 1992. We conclude that under the totality of the circumstances, the record does not preponderate against the trial court’s finding that the state failed to carry its burden of showing the defendant validly waived his Fifth Amendment rights by a preponderance of the evidence because the investigating officers did not “scrupulously honor” the defendant’s right to remain silent and because they reinitiated contacts and communications with him on November 4, 5, and 9,1992, after he invoked his right to counsel.
The primary evidence relating to the defendant’s statements came from Lieutenant Larry Johnson of the Knox County Sheriffs Department. Johnson testified at two pretrial hearings and at the trial relative to the statements. Initially, though, we note that Knox County Sheriffs Detective Michael Upchurch testified that he was involved in the defendant’s arrest on October 21, 1992, pursuant to a capias issued by the Knoxville City Court Clerk. He said that the defendant said he did not wish to answer any questions until they got a warrant and that Upchurch did not question the defendant after this statement.
At a suppression hearing on March 25, 1996, Lt. Johnson testified that he had been the head of the Homicide Division of the Knox County Sheriffs Department in 1992. He said that he was investigating some homicides in East Knox County and learned that the defendant was in the Knox County jail. He noted that he had been out of the country when the defendant was placed in custody.
Lt. Johnson testified that, to his recollection, he, Det. Upchurch, and Tennessee Bureau of Investigation (TBI) Agent David Davenport went to the jail on October 29, 1992, and talked to the defendant. He said that the jail did not have any rights waiver forms and that he read the defendant the Miranda warnings from a card. Johnson said that he talked to a “person” the defendant identified as “Kyle.”
Lt. Johnson identified a rights waiver form dated October 30, 1992, at 5:00 p.m. He noted that Agent Davenport had written on the form, “I do want a lawyer at this time, and will not answer any more questions now.” He said he told the defendant, “If you don’t have anything else to say, ... there’s no point in us continuing to talk.”
Lt. Johnson testified that the next time he talked to the defendant, he was responding to the defendant’s sending word through a correctional officer that the defendant wanted to talk to him and Det. Upchurch. He said he and Upchurch returned to the jail, advised the defendant of his rights, and asked if he was sure he wanted to talk with them and without an attorney. Johnson identified a rights waiver form dated November 10, 1992, at 11:45 a.m. He said that he explained the rights “very thoroughly” to the defendant and that the defendant signed the waiver. Johnson identified another rights waiver form dated November 11, 1992, at 2:10 p.m. He said the meeting occurred at the request of the defendant who had gotten word to a correctional officer to notify Johnson or Upchurch that the defendant wished to talk with them. Johnson said that he advised the defendant of his rights and that the defendant signed the waiver form with the name “Phillip Daxx.”
Lt. Johnson testified that during the conversations with the defendant, one of the defendant’s “purported alter egos” would appear. He said that in all the conversations, he would start with Tom Huskey but that he would end up talking to “Kyle” or “Phillip Daxx.” He said the most extensive, detailed conversations were with “Kyle,” who was the one who admitted involvement in the four murders and numerous rapes. Johnson said that when the defendant said he was someone else, Johnson would advise them of their rights and that “they acknowledged that they understood them, and kept talking.”
Lt. Johnson identified his notes regarding a statement given by the defendant and a ten-page transcript of a typed statement, both obtained on November 9, 1992. He noted that the tape of the statement reflected in his notes was bad. He also identified a three-page statement dated November 11, 1992, at 2:15 p.m., given by the defendant “a/k/a Phillip Daxx.” He said that soon after this statement, the defendant was appointed counsel who told him not to talk to the defendant without counsel present. As for further contact with the defendant, Johnson said, “I served some court capiases on him after that, but that was merely just advising him of some charges against him.”
On cross-examination, Lt. Johnson testified that he returned from his trip after the defendant was arrested and that only one body had been found near Cahaba Lane. He said that more bodies were found that week. He acknowledged being told that when arrested on October 21, 1992, the defendant told detectives that unless they had a warrant, he did not have anything to say. He said that Agent Davenport joined them to interview the defendant because he was investigating a Sevier County rape and old homicide. Johnson noted that the October 30 rights waiver form was signed by him, Davenport, Det. Upchurch, and Det. Darrell Johnson, who was investigating one of the homicides. He said he did not attempt to get the defendant an attorney after the defendant’s request for one because it was not his place to do so. He said, however, that he told the defendant that the telephone book was full of attorneys and that the defendant could call one if desired, because he would not be initiating any further contact with the defendant.
Lt. Johnson identified a capias dated November 9, 1992, which noted service on the defendant at 2:25 p.m. relative to the rape cases. The capias was signed by Johnson and Agent Davenport. Johnson said that he, Davenport and Det. Upchurch talked with the defendant, who said he did not know anything. Johnson said he asked the defendant if he wanted coffee or to use the bathroom or to stop talking with them. He said the defendant replied he did not and requested coffee. Johnson said he and Davenport left the room and returned with coffee.
Lt. Johnson testified that Det. Upchurch then said he would like to introduce them to “Kyle.” Johnson said that they talked to “Kyle” but that he noticed that the tape recorder was not working. He said that the defendant “came back,” complaining about a headache and stating that he did not know what happened with “Kyle.” Johnson said that “Kyle” returned and they obtained a taped statement.
Lt. Johnson said that the reason Agent Davenport joined him on November 9 was because of the Sevier County investigations. He said they served the capias and the defendant said, “Wait just a minute. We — I want to talk to you all. Let’s talk.” Johnson said that' he did not recall Davenport arriving with knowledge that Johnson was going to serve the capias. He stated, “I was called by the court and told that one had been returned, and I came up and got it, and Davenport and I went and served it.” He repeated that serving the capias was the first time he had contact with or any attempt to talk to the defendant since October 30,1992.
At a December 17, 1998 hearing, Lt. Johnson was questioned about his interviews with the defendant. He said that the interviews occurred in the Jail Captain’s office and that they tried to treat the defendant with respect. Johnson testified that on October 29 or 30, 1992, in the evening, the defendant was advised of his rights. He said that he and Agent Davenport left the room to get the defendant coffee, leaving the defendant with Det. Upchurch. When they returned, Upchurch said, “Larry, I would like to introduce you to Kyle.” Johnson said that he and Davenport took notes and that the defendant, as “Kyle,” gave a statement which provided information regarding the homicides on Cahaba Lane.
Lt. Johnson said that he did not talk to the defendant between October 30 and November 9, 1992. He said the other times he talked to the defendant were at the defendant’s requests, except when they served a capias on him on November 9.
On cross-examination, Lt. Johnson was asked if he told the defendant after he requested a lawyer that the defendant could tell one of the jailers if he wanted to talk to the officers. Johnson replied that the defendant’s request for a lawyer was not what Johnson would call a request. He said that the defendant asked him if he thought the defendant needed a lawyer and that he replied that he did not know, that it was up to the defendant. He said he got a telephone book, turned it to attorneys in the yellow pages, and told the defendant to call one if he desired. When asked if he recalled that on October 30, 1992, the defendant said, “I do want a lawyer and will not, answer anymore questions now,” Johnson replied, “to my recollection, no, sir, — well, not just to my recollection. If he had said that, I would have quit talking to him.” When asked about the delay between October 30 and November 9, Johnson said that they were interviewing various people, trying to corroborate what “Kyle” had told them. Johnson recalled that November 9 was the day they had some capiases to serve on the defendant and took him to the Jail Captain’s office for privacy. Johnson said that they talked to “Kyle,” and he recalled talking briefly with “Timothy,” whom he described as a homosexual. He said “Timothy” claimed to be protecting the defendant from “Kyle.”
Finally, Lt. Johnson testified at the defendant’s trial on January 28 and 29, 1999. He said that he was out of the country when the first body was discovered near Cahaba Lane and that three more bodies were found the week after he returned. He said that because three of the victims had prostitution arrests, detectives interviewed people concerning who may have been seen with the victims. He said that, among others, the defendant’s name was mentioned.
Lt'. Johnson said he and Agent Davenport went to the Knox County Jail around the end of October 1992 to.talk with the defendant. He said he read the defendant his Miranda rights. He said that the defendant wanted to know if there were any charges pending and that he told the defendant there were not. He said the defendant said “maybe I ought to talk to a lawyer,” which Davenport wrote on the rights waiver form. Johnson added that the defendant said that they “might wish to speak with him later if any charges were to be filed.”
Lt. Johnson testified that the next conversation took place in the Jail Captain’s office on November 9, 1992, at which time the defendant gave a statement to him, Agent Davenport and Det. Upchurch. Johnson also noted that statements were taken from the defendant on other days as well and identified them for the jury.
On cross-examination, Lt. Johnson acknowledged he had testified in December 1998 that he did not call the defendant’s request for an attorney a request in that the defendant asked him if he thought the defendant needed an attorney. He also acknowledged being asked if the defendant specifically requested the lawyer and his responding, “To my recollection, no sir.” He explained that he had not expected to testify at the December hearing and had none of his notes. He said that after the hearing, he reviewed his material and recognized he had made a mistake about the defendant’s request. In this regard, Johnson also acknowledged that he had previously testified that October 30, 1992, was the first time he had talked to the defendant and that the defendant talked to them as “Kyle” and that they subsequently were interviewing people to corroborate what “Kyle” had told them. Johnson admitted that the date was a mistake.
Lt. Johnson denied talking with the defendant on October 29, 1992, but he acknowledged talking with the defendant on October 30 for fifteen or twenty minutes. He said there was no tape recording of that meeting. He said, though, that on the 30th, the defendant said, “When you get ... some paperwork, why, I may talk to you.” He said that the only time he took notes or taped the defendant was when the defendant claimed to be someone else. After a review of the records, including Agent Davenport’s notes, Johnson acknowledged that he and Davenport talked with the defendant on October 29, 1992, from 10:05 a.m. until noon. He acknowledged that toward the end of the time, the defendant was allowed to call his parents and take a shower.
Lt. Johnson acknowledged that the records reflected that he, Agent Davenport, and Det. Upchurch talked with the defendant on October 30 with the initial conversation lasting from 10:00 a.m. until noon. He said that they broke for lunch and that the interrogation resumed at 12:35 p.m. and lasted until 2:15 p.m. Johnson acknowledged that the defendant said he wanted to go back to his cell and think. He said the records reflected that the defendant was brought out of the cell at 4:55 p.m. and told them that he wanted a lawyer because he did not know if he could trust them.
Lt. Johnson acknowledged recording a conversation on November 10, 1992, which he had with William Fletcher, a jail inmate, in which Johnson referred to Fletcher seeing him, Agent Davenport and Det. Upchurch on November 4 and 5, 1992, standing outside cell thirteen when they put the defendant back in the cell. Johnson acknowledged that Fletcher indicated he had seen them. Johnson admitted that he asked Fletcher, “After he was brought back to the cells after those occasions, did he sit and talk to you about what we had talked to him about?” Johnson denied that his comments to Fletcher indicated he had been questioning the defendant. He stated, “Well, you can have a conversation and not — you know, not interrogate someone .... And that is basically what we were doing. We were talking to Mr. Huskey, just chitchatting with him.”
Lt. Johnson testified that he did not ask the defendant any questions about the homicide or anything else. When asked why he went to see the defendant on November 4 and 5 after the defendant requested an attorney, Johnson replied, “I have been an officer for thirty-one years.... As the saying goes, you can get more with honey than you can with vinegar.” He said he was being nice to the defendant and was taking care of his requests, such as telephone calls to his parents and showers. Johnson also acknowledged that Davenport’s notes reflected that the defendant said he wanted to ask some questions and, when asked, that he was willing to talk without a lawyer.
Relative to serving the capias on November 9, 1992, Agent Davenport’s notes provide:
Also, it should be noted that the Knox County Assistant District Attorney Bob Jolley, who was handling these cases, had requested that this agent be available to serve grand jury indictments on Thomas D. Huskey in an attempt to see if he will talk further with this agent and Lt. Johnson.
Johnson implied that he was unaware of the note. He said that they went to the jail to serve the capias and that if the defendant wanted to talk, they were going to be there to listen.
In granting the defendant’s motion to suppress the statements he made on November 9, 10, and 11, 1992, the trial court found
In 1998 it was revealed that there was considerably more than “background information” discussed with the defendant at the October 29 and 30 meetings when Agent Davenport’s notes were produced through further discovery in preparation of the murder trial. In fact, it is obvious from the notes that there was substantial discussion relating to the murder cases leading up to the defendant’s invocation of his right to an attorney. However, there was no reconsideration of the motion to suppress given prior to the trial of the murder cases based upon this information.
In January of 1999, during the murder trial, Lieutenant Johnson testified for the first time regarding the November 4 and' 5, 1992 contacts with the defendant. Although Lieutenant Johnson testified that ’ no statements were elicited from the defendant at these meetings, he did indicate that the specific purpose of the contact was to make sure that the defendant’s needs were being met, a function normally undertaken by jailers and not investigators. On cross-examination, Johnson acknowledged that “you can catch more with honey than with vinegar.”
Based upon the evidence, it is clear to this court that the defendant made two invocations of his rights under the Fifth Amendment. The first invocation occurred on October 21 when he indicated his desire to remain silent and cease questioning until investigators “had a warrant.” The state argues that this invocation was equivocal and indicated that the defendant would discuss the cases voluntarily upon the filing of charges, in essence, an initiation of contact. The court finds this argument disingenuous in light of the investigators’ repeated (at least four) contacts, which were uninitiated by the defendant, prior to the November 9 service of the capiases. It is also clear from the record that these contacts either discussed the investigations directly (October 29 and 30) or were undertaken with the specific purpose and hope that the defendant would volunteer information on his own (November 4 and 5). Following each invocation, investigators persisted in repeated contacts with the defendant culminating in the service of capiases on November 9 and the ensuing confessions by the defendant. It is also worthy to note that the service of process on November 9 was personally done by Lt. Johnson, Agent Davenport and Det. Upchurch, at the direction of then Assistant District Attorney General Jolley, in the hopes that the defendant would change his mind and talk to them....
As stated previously, it is clear to this court that the defendant invoked both of these rights, the first being his right to remain silent on October 21 and the second being his right to an attorney on October 30. The court concludes that on each occasion the defendant exhibited his intention to exercise his Fifth Amendment privileges.... There is ample evidence before this court that investigators failed to scrupulously honor the defendant’s invocation of rights. The subject matter of all interrogations remained focused on the rape and murder investigations throughout the numerous police-initiated contacts with the defendant after the invocations occurred.... The court concludes that the state has failed to meet its burden to show that the defendant’s rights were scrupulously honored. Despite two invocations, investigators continued to approach the defendant and either interrogate him directly or attempt to endear themselves to the defendant in hopes that he would discuss the investigations. In light of these new facts, the court cannot conclude that these statements were voluntary and self-initiated and not the product of “repeated efforts to wear down [the defendant’s] resistance and make him change his mind.” Therefore, having concluded that the investigators violated the defendant’s Fifth Amendment right against self-incrimination by failing to scrupulously honor his assertions of his right to cease questioning and his right to counsel, and further that the defendant’s statements were not the result of his own initiated contact with investigators, the defendant’s motion to suppress is hereby GRANTED.
A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn.Crim.App.1990). Questions about the “credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The application of the law to the facts as determined by the trial court is a question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997). The prevailing party “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 the evidence.” Odom, 928 S.W.2d at 23.
In this regard, the state notes that the trial court made no findings regarding Lt. Johnson’s interview with William Fletcher. We also note the trial court failed to comply with this court’s suggestion in remanding the rape cases that the trial court make specific findings regarding witness credibility. However, the tenor of the trial court’s findings reflect that it did not fully accredit Johnson’s testimony. In any event, we need not ignore what was revealed in the Fletcher interview and in Johnson’s testimony about the interview. Moreover, we need not ignore the changes in Johnson’s testimony when confronted with Agent Davenport’s notes.
A. Right to Remain Silent
The state contends that the defendant’s right to remain silent was “scrupulously honored” because the investigators ceased questioning him each time he asserted a Fifth Amendment right, they allowed ample time to pass before any rein-terrogation, and they gave him fresh sets of Miranda warnings before any reinterrogation. The defendant responds that the multiple contacts the investigators had with him violated the invocation of his Fifth Amendment right to remain silent and that the record does not preponderate against the trial court’s findings.
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). If a suspect is in custody, 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once informed of those rights, a suspect may voluntarily waive them and speak with the police or he may invoke his Miranda right against compulsory self-incrimination. Id. at 444-45, 86 S.Ct. at 1612; State v. Crump, 834 S.W.2d 265, 269 (Tenn.1992), cert. denied, 506 U.S. 905, 113 S.Ct. 298, 121 L.Ed.2d 221 (1992). “The test of voluntariness for confessions under Article I, § 9 [of the Tennessee Constitution] is broader and more protective of individual rights than the test of voluntariness under the Fifth Amendment.” Id. at 268 (citing State v. Smith, 834 S.W.2d 915 (Tenn.1992)). If a suspect indicates in any manner that he wishes to remain silent, custodial interrogation must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627 (1966); Crump, 834 S.W.2d at 269. After a suspect invokes his right to remain silent, police may not resume custodial interrogation unless the defendant’s right to “cut off questioning” was “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975); Crump, 834 S.W.2d at 269. In order to introduce a defendant’s confession into evidence at the trial of the matter, the burden rests upon the state to demonstrate a valid waiver by a preponderance of the evidence. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
We note that in Lee v. State, 560 S.W.2d 82, 84 (Tenn.Crim.App.1977), this court held under both the federal and state constitutions that the state’s burden was to show a valid waiver by clear and convincing evidence. Lee has never been criticized or overruled. We also note that in State v. Bush, 942 S.W.2d 489, 500 (Tenn.1997), our supreme court citing Connelly held that the state need only show a valid waiver by a preponderance of the evidence. The court relied, however, on federal constitutional law and did not address article 1, section 9 of our constitution or Lee’s contrary holding. In any event, we will determine whether the state showed a valid waiver by a preponderance of the evidence.
In Mosley, the Supreme Court considered when police could reexamine a suspect who had previously asserted his right to remain silent. 423 U.S. at 96, 96 S.Ct. at 321. Mosley was arrested on robbery charges and advised of his Miranda rights. After invoking his right to remain silent, the arresting officer placed him in a detention cell. Approximately two hours later, another officer came to interview the defendant about an unrelated homicide. He gave the suspect another set of Miranda warnings, and during the course of the subsequent interrogation, Mosley made incriminating statements. In reviewing the case under Miranda, the Court concluded that Mosley’s invocation of his right to remain silent had been “scrupulously honored” because “[1] the police ... immediately ceased the interrogation, [2] resumed questioning only after the passage of a significant period of time and [3] the provision of a fresh set of warnings, and [4] restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” Id. at 106, 96 S.Ct. at 327. The Court noted that “where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind,” a constitutional violation would occur. Id. at 105-06, 96 S.Ct. at 327. However, the Court also noted that Miranda cannot “sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent” because such a reading could im-permissibly create “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation.” Id. at 102-03, 96 S.Ct. at 326.
The federal circuit courts have split in applying Mosley. The minority position holds that the test constitutes conditions precedent to a showing of a defendant’s valid waiver of his previously invoked Fifth Amendment rights. In other words, under this approach, unless all four conditions are met, there can never be a subsequent showing of valid waiver. See United States v. Barone, 968 F.2d 1378 (1st Cir.1992) (holding that under “Mosley, a court need determine specifically whether there has been a voluntary waiver only after the government has carried its burden of showing that it complied with [all of] the required procedures”); accord Vujosevic v. Rafferty, 844 F.2d 1023, 1028-31 (3rd Cir.1988) (holding that under Mosley, the government failed to demonstrate a valid waiver when police did not “scrupulously honor” the suspect’s invocation of his right to remain silent by reinterrogating him about the same crime).
The majority position concludes that the Mosley test does not create a per se rule but provides factors that a court should consider under a “totality of the circumstances” approach. For example, in Weeks v. Angelone, 176 F.3d 249, 267-68 (4th Cir.1999), the court determined that the Mosley Court stated factors to consider when determining whether the police had “scrupulously honored” a suspect’s right to “cut off questioning,” not a bright line rule. Accord United States v. Schwensow, 151 F.3d 650, 659 (7th Cir.1998) (recognizing that a second interview is not rendered unconstitutional simply because it involved the same crime as previously discussed); United States v. McClinton, 982 F.2d 278, 282 (8th Cir.1992) (focusing on whether the police “persisted in ‘repeated efforts to wear down the person’s resistance’ in order to change the person’s version of the facts,” instead of on subject matter of the rein-terrogation); United States v. Hsu, 852 F.2d 407, 410 (9th Cir.1988) (holding that “an identity of subject matter in the first and second interrogations is not sufficient, in and of itself, to render the second interrogation unconstitutional”); cf. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812, 815 (1986) (stating Mosley’s importance is focused on “strict adherence to its dictates of scrupulously honoring the defendant’s right to remain silent” and finding the Court’s emphasis “on interrogation about a different crime is, we believe, misplaced”); State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992) (rejecting the view that Mosley stands for the proposition that “the police can never reinterrogate a suspect, who has invoked his right to remain silent, regarding the same crime about which he had refused to talk”). According to the analysis of the Weeks court and others in accordance with its interpretation of Mosley, the relevant question to consider is whether under the “totality of the circumstances,” the police “scrupulously honored” a suspect’s right to “cut off questioning.”
We agree with the majority of the circuit courts and conclude that reinterrogation of a suspect concerning the same subject matter does not constitute a per se violation of Miranda under Mosley. However, we believe it is an important factor to consider under a “totality of the circumstances” test. In that regard, we conclude that because the officers reinterrogated the defendant about the same subject matter on at least three separate occasions after he invoked his right to remain silent and because they attempted to curry favor with the defendant on two other occasions by allowing him to shower and telephone family members, the officers’ actions constituted a persistent effort to wear down the defendant’s resistance and “make him change his mind.” Further, we conclude that the record preponderates against the trial court’s implied findings that the November 4 and 5 contacts did not include discussions about crimes with the defendant. The record reflects that Lt. Johnson spoke to William Fletcher, a jailmate of the defendant, after the November 4 and 5 contacts. Johnson asked Mr. Fletcher whether the defendant discussed with him about what the detectives had talked to the defendant on November 4 and 5. It is simply unreasonable to conclude that Johnson was not referring to substantive conversations he and the other detectives had with the defendant on November 4 and 5. Therefore, we believe that after the defendant invoked his right to remain silent, the detectives requestioned him at least three additional times and met with him on two other occasions where, at the least, the conversations concerned the same subject matter. Given these facts, we hold that the evidence does not preponderate against the trial court’s finding that the state failed to meet its burden of showing the defendant’s Fifth Amendment right to remain silent was “scrupulously honored.”
B. Right to Counsel
Because the defendant invoked his right to counsel after he invoked his right to remain silent and because the constitutional analysis of when a violation of these rights occurs is different, we next address' whether the officers .violated the defendant’s invocation of his right to counsel. The state contends that the defendant’s invocation of his right to counsel was not violated because even though the investigators reinitiated contact with him on November 4, 5, and 9, no interrogation occurred until the defendant initiated a conversation on November 9, indicating his willingness to discuss the charges against him. The defendant contends that the state has confused the issue of its duty to honor a suspect’s asserted right to remain silent scrupulously under Mosley with its duty to have no further contact in the absence of counsel after a suspect asserts his right to the assistance of counsel under Edwards. He argues that the state violated his asserted right to counsel by initiating contact with him on November 4, 5, and 9, culminating in his confession. We agree with the defendant.
In Miranda, the Court stated that if a suspect during custodial interrogation requests an attorney, “the interrogation must cease until an attorney is present.” 384 U.S. at 474, 86 S.Ct. at 1627-28. When such a request is made and “the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475, 86 S.Ct. at 1628 (emphasis added).
The Court in Edwards “reconfirmed] these views and, to lend them substance, emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” 451 U.S. at 485, 101 S.Ct. at 1885. “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484, 101 S.Ct. at 1884-85. Further, a suspect “having expressed his desire to deal with the police only through counsel, 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.” Id. at 484-85, 101 S.Ct. at 1885. The Court, however, did not suggest that police could never use incriminating statements given by a suspect who first invoked his right to counsel. For example, the Court stated,
Had Edwards initiated a meeting ..., nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver.
Id. at 485-86, 101 S.Ct. at 1885 (emphasis added).
In determining whether a valid waiver of a suspect’s invocation of his right to counsel has occurred, the proper question is whether “the accused, not the police, reopened the dialogue with the authorities .... [A] knowing and intelligent waiver cannot be found once the Fifth Amendment right to counsel has been invoked unless the accused initiates the renewed contact.” Id. at 486 n. 9, 101 S.Ct. at 1885 n. 9 (emphasis added); see also Wyrick v. Fields, 459 U.S. 42, 45-46, 103 S.Ct. 394, 396, 74 L.Ed.2d 214 (1982) (stating that an accused who has previously asserted his right to counsel must himself reinitiate a “dialogue with the authorities”); United States v. Whaley, 13 F.3d 963, 967 (6th Cir.1994) (holding “an Edwards initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case”). In Patterson v. Illinois, 487 U.S. 285, 291, 108 S.Ct. 2389, 2394, 101 L.Ed.2d 261 (1988), the Supreme Court, commenting on a valid waiver by a suspect who had invoked his right to counsel, noted, “Had petitioner indicated he wanted the assistance of counsel, the authorities’ interview with him would have stopped, and further questioning would have been forbidden (unless petitioner called for such as meeting).” (Emphasis added).
The Supreme Court has explained that Edwards “serves the purpose of providing ‘clear and unequivocal’ guidelines to the law enforcement profession.” Arizona v. Roberson, 486 U.S. 675, 681-82, 108 S.Ct. 2093, 2098, 100 L.Ed.2d 704 (1988) (quoting Fare v. Michael C., 442 U.S. 707, 718, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979)).
“If the police do subsequently initiate an encounter in the absence of counsel ..., 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.’ ”
McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) (quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990)). The bright line rule announced in Edwards reflects the Supreme Court’s concern that “if a suspect believes that he is not capable of undergoing [custodial] questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Roberson, 486 U.S. at 681, 108 S.Ct. at 2097-98 (citations omitted). “Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reap-proached regarding any offense unless counsel is present.” McNeil, 501 U.S. at 177, 111 S.Ct. at 2208.
In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), after invoking his right to counsel, the suspect subsequently initiated a conversation with police while being transported to a different detention facility when he asked the transporting officer, “What is going to happen to me now?” The ensuing conversation led to an interview complete with Miranda warnings, resulting in a polygraph examination which led to the suspect making incriminating statements. A plurality of the Court concluded that the suspect validly waived his previously asserted right to counsel under the Edwards rule by initiating a new conversation notwithstanding the fact that, technically, law enforcement initiated contact with him by removing him from his cell for transportation. Bradshaw, 462 U.S. at 1046-47, 103 S.Ct. at 2835. However, we note that while Bradshaw qualifies the Edwards bright line rule, eight of the Justices in that case still required that the defendant initiate the conversation or communication. “If Edwards is to be further modified ..., it is for the Supreme Court to do it.” United States v. Ortiz, 177 F.3d 108, 110 (1st Cir.1999).
In State v. Claybrook, 736 S.W.2d 95 (Tenn.1987), our supreme court, citing Edwards and Bradshaw, considered whether a suspect who had previously invoked his right to counsel subsequently made a valid waiver by reinitiating a conversation. The suspect initially requested counsel after an investigating officer noticed blood stains on his clothing. Later, while he was being led down a hallway in the detention facility, the suspect saw the district attorney general and asked to speak with him. During the ensuing questioning, the suspect waived his previously asserted right to counsel and made a statement. Claybrook, 736 S.W.2d at 102. The court held the suspect’s waiver was valid. Id. at 103.
In its response to the defendant’s motion to suppress, the state in the trial court cited Bromfield v. Freeman, 923 F.Supp. 783 (E.D.N.C.1996), for the proposition that an investigating officer who serves a. warrant on a suspect who previously invoked his right to counsel does not reinitiate contact under the exception in Bradshaw. Under this view, a suspect’s subsequent indication of a willingness to talk about the charges and his resulting confession will not offend the Fifth Amendment so long as a valid waiver was obtained.
In Bromfield, the suspect invoked his right to counsel. Thereafter, police investigators served felony murder warrants on the suspect while he was incarcerated in the local detention facility, hoping that he “would choose to provide further information.” In reviewing the subsequent conviction, the court found
that service of subsequent warrants upon an incarcerated accused is a normal incident both of arrest and custody. The contact that the police had with petitioner when they served him with the second set of warrants, along with any “inquiries or statements relating to” this “routine incident of the custodial relationship,” could not violate the right to counsel. Even where a suspect has invoked his Fifth Amendment right against further uncounseled interrogation on any subject, the police “are free to inform the suspect of the facts of the second investigation as long as such communication does not constitute interrogation .... ” To the extent that petitioner expressed a desire to give the police a third interview upon being informed of the warrants, the Court finds that it was the petitioner, not the police, who “initiated” further communication.
Bromfield, 923 F.Supp. at 788.
We do not view Bromfield to be persuasive in the context of the present case. While the Bromfield court considered the service of a warrant by the very same officer who had previously interrogated the defendant a routine incident of the custodial relationship, we note that the Supreme Court gave but two examples of routine incidents of the custodial relationship that would not be considered an initiation of contact: a request for a drink of water or the use of a telephone. See Bradshaw, 462 U.S. at 1045, 103 S.Ct. at 2835. The facts of Bradshaw also stand as a third example: contacts necessary to facilitate transportation of a detained suspect. However, we decline to extrapolate from these examples that the investigating officers in this case, who previously initiated contact with the defendant twice and whose primary purpose in serving the capias on the defendant was to obtain his confession, did not offend Edwards when they used the capias as a ruse with the fervent desire that the defendant ask so much as “I have some questions about this” in order to reinterrogate him in the absence of counsel.
We further conclude that even if the serving of such process by the same investigators is not a reinitiation of contact under Edwards, the facts of the present case lead us to the conclusion that the investigators violated the defendant’s assertion of his right to counsel under Edwards by reinitiating contact with him on November 4 and 5. These contacts were undertaken by investigators because in the words of Lt. Johnson, you can get “more with honey than with vinegar.” While this may indeed be a true statement and even a legitimate law enforcement technique, we conclude that the investigators violated the defendant’s asserted right to counsel under the Fifth Amendment by reinitiating contact, communication, dialogue, or meeting with him on November 4 and 5. Based upon Johnson’s interview with William Fletcher and General Jolley’s comments to Agent Davenport about serving the capias, we conclude that the investigating officers’ contact on November 4, 5, and 9 cannot be said to have arisen as a routine incident of the custodial relationship as it was designed to elicit a confession from the defendant. These contacts violated Edwards ’ bright line rule, culminating in the defendant’s confession. Because the defendant remained in state custody during this entire period, we discern no attenuation of the constitutional violation. Indeed, the defendant’s desire to talk generally about his case was the direct and proximate result of the influence of the police investigators on five separate occasions, and his waiver cannot be said to comply with Edwards.
Edwards established a bright line rule which the investigating officers violated by reinitiating contact, communication, dialogue and meetings with the defendant. In order to comply with the constitutional mandates, if the state wanted to interrogate the defendant on November 9, ten days after he requested the assistance of counsel, it needed simply to provide him the attorney he requested. In this regard, we conclude the evidence does not preponderate against the trial court’s finding that the state failed to carry its burden to show valid waiver.
II. ARREST, SEARCH, AND SEIZURE
The state contends that the items seized from the defendant’s home are admissible as evidence because the police arrested the defendant in good faith reliance upon a Knoxville City Court capias subsequently declared void and because the defendant’s father consented to the search of the defendant’s room. The defendant asserts that Tennessee does not recognize a good faith exception and that one should not exist, in any event, when the state relies upon a void capias. He also notes the trial court found that no consent to search was given.
The evidence regarding the defendant’s arrest and the search of his home on October 21,1992, was summarized by this court in the defendant’s rape case as follows:
At a February 7, 1996 suppression hearing, Knox County Sheriffs Detective Michael Upchurch testified that he was in charge of investigating the homicides, which occurred near Cahaba Lane in Knoxville in October 1992. His investigation caused him to focus on the defendant as a suspect, and he checked for outstanding warrants against the defendant. He found an outstanding capias for failure to appear in Knoxville Municipal Court on a charge of solicitation of prostitution. Knowing that the defendant had been employed at Teagues Statuary in Sevier County, Detective Upchurch asked the Sevier County Sheriffs Department to have an officer meet him and Detectives Darrell Johnson, Dan Stewart, Mike Freeman, and Mike Grissom to arrest the' defendant on the capias and for questioning about the homicides. They first went to the statuary and then proceeded to the defendant’s parents’ mobile home, where Detective Upchurch saw a truck matching a description given in conjunction with his investigation parked in the driveway.
Detective Upchurch testified that at 9:30 p.m., he and Officer Jerry Huskey of the Sevier County Sheriffs Department went to the front door of the mobile home and that the other officers went to the back door. Officer Huskey was in uniform and had parked his cruiser in front of the mobile home. The defendant’s mother answered the door, and he and Officer Huskey identified themselves. Detective Upchurch told her that he wanted to see the defendant, that a court had issued a capias for the defendant for failure to appear in court, and that they were taking the defendant into custody at that time. Mrs. Huskey told him that her husband and the defendant were in their beds and that she would get the defendant. She invited them inside. The defendant came into the living room and asked what they wanted. Detective Upchurch told him why they were there and that they wanted to talk to him. The defendant said, “Fine. I need to get my shoes.” Detective Upchurch told the defendant that he could get his shoes but that they would have to accompany him to his bedroom because he was in custody. The defendant agreed to this and walked ahead of them down the hallway.
Detective Upchurch testified that while he and Detective Stewart were standing just inside the doorway of the defendant’s bedroom, he saw an orange hay-baling rope on the defendant’s floor. He recognized it as the type of rope used to bind the rape victims. As the defendant sat on his bed putting on his shoes, Detective Upchurch illuminated a dresser with his flashlight and saw a pair of women’s earrings and a necklace on the top. The day before, one of the homicide victims’ boyfriends had told him that the victim had earrings in her purse. He did not confront the defendant with the rope and jewelry at this point. The defendant refused to sign a consent to search form and was then transported to the Sevier County Jail.
Detective Upchurch testified that Detective Stewart remained at the defendant’s bedroom door to make sure that nothing was moved. The other detectives waited in their unmarked cars. Although the defendant’s father had given his consent to search the whole residence, the Assistant District Attorney advised him by telephone that he should get a search warrant for the defendant’s bedroom. The Sevier County Sheriffs Office provided him with a search warrant form. He consulted with the Assistant District Attorney again and drafted the affidavit and warrant. He acknowledged that he was not familiar with Rule 41, Tenn. R.Crim. P., but that he had undergone training relating to search warrants and was familiar with probable cause. Nevertheless, at the time of the hearing, he had written only a few search warrants. He admitted that the search warrant affidavit did not mention the jewelry that he had seen in the defendant’s room. He said that he noted the jewelry on the list of items for which he was searching because he had seen it in the room and knew it was there.
Detective Upchurch testified that he told Officer Huskey that he needed to go to a judge or magistrate to get a search warrant signed, and Officer Huskey agreed to take him. He was taken to Bruce Baker, who was introduced as a Sevier County magistrate. He handed the warrant to Mr. Baker and asked if he needed to do anything else before Mr. Baker signed it. Mr. Baker signed the warrant, and Detective Upchurch made three copies. He gave one of the copies to Mr. Baker, and the other two copies were for the defendant and his father. Once he obtained the signed search warrant, he returned to the defendant’s parents’ home and conducted the search. When Detective Stewart picked up the earrings to bag them, Detective Upchurch saw a blonde hair entwined with the necklace and the earrings. In addition to the items found in the defendant’s bedroom, he found a knife on the bathroom sink. He said that the defendant’s parents never objected to the search of their mobile home, and the defendant never objected to the officers entering his bedroom at the time of his arrest.
Detective Upchurch testified that the defendant arrived at the Knox County Jail at 4:00 a.m. on October 22. Detective Upchurch was not at municipal court when the defendant appeared and did not speak to anyone associated with that charge. He did not consider the defendant to be under arrest for the death of Patricia Rose Anderson until the Knox County Grand Jury returned an indictment for that charge.
Jerry Huskey testified that on October 21, 1992, he was a patrolman with the Sevier County Sheriffs Department, when Knox County officers asked him to help them in investigating the defendant. He confirmed the truth of his affidavit, which stated that the officers showed him a folded capias and told him that it was for the defendant, but said that he did not read it. He took them to the statuary and then to the Huskey residence. He thought that the defendant’s father invited them inside. The defendant was not wearing shoes when he first saw the defendant. He heard the detectives ask the defendant’s father if they could search the mobile home. The defendant’s father agreed to let them search but told them that they would have to ask the defendant about his room. The detectives asked the defendant if they could search his room. The defendant said they could not search his room, and they got a search warrant. He did not see the detectives violate the defendant’s rights, and he believed that they acted in a professional manner. He acknowledged that his report states that he transported the defendant to the Knox County line where the defendant was charged with homicide.
Knox County Sheriffs Detective Daniel Stewart testified that on October 21, 1992, he went to the defendant’s house with Detective Upchurch. When the defendant walked into his parents’ living room, Detective Upchurch announced that the defendant would be taken into custody for failure to appear in court. Detective Stewart considered the defendant to be in custody at that point. He said he accompanied the defendant to his bedroom for shoes or a shirt. He was standing either in the doorway or just inside the room, and Detective Upchurch stood beside him. He noticed a piece of orange baling twine on the floor by the bed. Detective Stewart said that a rhinestone necklace with a hair entangled in it and a pair of costume pearl earrings were found on a piece of furniture immediately on the left through the doorway, but he did not remember if he saw the jewelry when the defendant was getting his shoes or when they executed the search warrant. The top of the piece of furniture was cluttered, and the jewelry was either on top of or near the edge of some newspapers. When the defendant was taken to jail, Detective Stewart remained at the mobile home to ensure that the defendant’s bedroom was not disturbed. He did not search the room while the other officers were away. During that time, the defendant’s mother entered the room to turn off a light or radio, and as she left, the rope caught on her foot and was dragged a few inches.
J.H., the defendant’s mother, testified that she was awakened by knocking after 9:00 p.m. on October 21, 1992. When she opened the door, men wearing police uniforms asked if her husband was there. She said that he was there and called for him. One of the men asked if the defendant was there. She said yes and knocked on the wall adjacent to the defendant’s bedroom. She did not ask the officers to come inside. The officers stood in the door until her husband arose. When the defendant entered the living room in his pajama bottoms, the officers walked over to him. At that point, she went to her bedroom to get a housecoat, and when she returned, the officers and the defendant were gone. She never heard the officers ask her husband for permission to search their home or say that they were there to arrest the defendant because he faded to appear for court. The defendant had previously told her that he went to court.
Mrs. Huskey testified that she was frightened and nervous because the officers had taken the defendant. One officer remained standing at the defendant’s bedroom door. She denied offering a stool to the officer, who stood the entire time. The officer watched her go into the defendant’s bedroom and asked what she was going to do. She told him that she was going to turn the radio off, which she did and then left the room. She noted that a chest of drawers was built into the wall in the defendant’s bedroom and that one could not see the chest unless he or she stepped into the room. The officers returned and searched the trader, but she did not hear her husband give them permission to search. She did not know what was in the defendant’s room because she never went in his room except to leave his clean laundry on the bed.
Huskey, 2002 WL 1400059, at *36-38, slip op. at 38-41.
In the order granting the defendant’s motion to suppress items seized from his bedroom, the trial court found that the consent given by the defendant’s parents to search the residence did not include permission to search the defendant’s bedroom. However, the trial court considered the issue of consent to be irrelevant, because it concluded the officers had no lawful basis to be in the Huskey residence. It noted that this court had held that the capias upon which the defendant was arrested was not legal process and was unlawful. It stated, in part, the following:
After the officers had entered the Huskey residence, defendant, Thomas Dee Huskey, came out of his bedroom and was advised by the officers that they had a warrant for his arrest. Defendant asked and was given permission to return to his bedroom to get a pair of shoes, but was advised that officers would have to accompany him to the bedroom to which the defendant agreed. When the defendant went to his bedroom to put on his shoes the two officers who accompanied him observed certain items in his bedroom that they considered to be evidence in the criminal cases against Mr[.] Huskey, including a piece of orange twine and items of womens jewelry that were in plain view within the room.
Based on the fact that this court found that the law enforcement officers were in possession of a valid arrest warrant for the defendant, and that the items were in plain view of the officers during a lawful arrest of the defendant, the court found that these items were lawfully seized incident to the arrest. In the appeal of his rape convictions the defendant raised the issue of the defendant’s arrest and the validity of the capias (arrest warrant) issued by the Knoxville City Court, which was the process used to arrest the defendant on October 21,1992, in Sevier County.
The Court of Criminal Appeals further ordered this trial court to reexamine the validity of the seizure of the evidence now at issue in light of that ruling.
The basis upon which this court previously held that the evidence was properly seized was premised on the fact that law enforcement officials had a lawful capias (arrest warrant) for the defendant, and that the evidence at issue was in plain view and seized incident to the lawful arrest of the defendant. The Court of Criminal Appeals having now held that the arrest warrant was not valid, completely changes the rational[e] for this court’s prior ruling on this issue. If law enforcement officers did not have a valid arrest warrant, they had no lawful basis upon which to present themselves at the Huskey residence and gain admittance into the residence for the purpose of serving that process. Since the arrest of Mr. Huskey was unlawful, it naturally follows that evidence seized in plain view of the officers during that arrest is likewise unlawful and must be excluded.
Further, this court does not believe that law enforcement officers can present themselves at the residence of a citizen and advise that citizen that they have a lawful arrest warrant for an occupant of the home, and then seek consent to search that home incident to that lawful arrest when in fact the underlying arrest warrant is unlawful. In State v. Clark, 844 S.W.2d 597 (Tenn.1992), another warrantless search case, our Supreme Court found that “consent to enter and search a home will not be lightly inferred, nor found by mere acquiescence to unlawful authority”. Clark at 599.
Therefore, this court arrives at the inescapable conclusion that the evidence was not seized as part of a lawful arrest, nor was the consent to search that was obtained incident to that arrest valid. Defendant’s Motion to Suppress this Evidence is, therefore, GRANTED.
A. Good Faith
In the rape cases, this court held that the capias upon which the defendant was arrested was improperly issued by the Knoxville City Court Clerk and was void because it did not run or issue in the name of the State of Tennessee. Huskey, 2002 WL 1400059, at *47, slip op. at 50. It also held that the search warrant for the defendant’s home was invalid because it failed to name the officer to whom it was issued in violation of Rule 41(c), Tenn. R.Crim. P. In the present case, the state does not contest these rulings. However, it contends that it should be allowed to use as evidence the items seized as a result of the search of the defendant’s home. It asserts that the officers acted in good faith and with objectively reasonable reliance on the capias purportedly issued by the Knoxville City Court for the defendant’s failure to appear in court. It argues that the capias was not invalid due to unlawful police conduct but due to judicial error. The state essentially requests the court to adopt the “good faith” exception to the exclusionary rule as was done in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). This exception would permit evidence seized in reasonable, good faith reliance upon a search warrant subsequently found to be defective to be introduced during the prosecution’s case-in-chief. We believe a short history of the exclusionary rule relevant to this case is appropriate. In Hughes v. State, 145 Tenn. 544, 238 S.W. 588 (1922), the Tennessee Supreme Court held that evidence obtained in violation of Article I, section 7 of the Tennessee Constitution should be excluded as evidence. The court stated: The state, having through its executive representatives produced the evidence of a violation of the law by one of its citizens by means prohibited by the Constitution, cannot be permitted through its judicial tribunal to utilize the wrong thus committed against the citizen to punish the citizen for his wrong; for it was only by violating his constitutionally protected rights that his wrong has been discovered. It is no answer to say that it matters not how a citizen’s sins have been found out. Security from unlawful search is the right guaranteed to the citizen, even for the discovery of the citizen’s sins. This right we must protect, unless we may with impunity disregard our oath to support and enforce the Constitution. The experience of our forefathers with unlawful searches and seizures was deemed by the people who framed the Constitution sufficient to warrant the provision by which in instances even the guilty might escape detection and punishment. Id. at 565-66, 238 S.W. at 594. In Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923), the first case to apply the exclusionary rule in Tennessee, the Tennessee Supreme Court found deficiencies in the affidavit and warrant which it attributed to the “carelessness” or “oversight” of the magistrate issuing the warrant. Even though it determined that “[t]he officers acting in [the] case did so in good faith,” it held that the evidence seized under the invalid warrant should have been excluded. Id. at 161, 252 S.W. at 1008-09. It stated that the requirements of the constitution and statutes regarding search warrants and affidavits were not difficult and should be followed. We believe Hampton reflects a concern that both officers and magistrates must be vigilant in ensuring that the requirements of the constitution and the statutes be followed. In other words, the security of citizens in Tennessee “in them persons, houses, papers and possessions, from unreasonable searches and seizures” provided in Article I, section 7 of the Tennessee Constitution protects them from inappropriate conduct by the government, regardless of which agency or branch and of whether issuance or execution related. The Tennessee Supreme Court has consistently recognized that the search and seizure requirements of the constitution and statutes are not difficult to follow. We note that in Everett v. State, 182 Tenn. 22, 28, 184 S.W.2d 43, 45 (1944), the court stated The use of printed forms has made the procurement of a search warrant the merest formality, considering the fundamental constitutional right which the search invades. Certainly, this Court can do no less than to require that the few blank spaces be filled in, and the other details of the formality be carried out with care and precision. Even the legislature dealt with the importance of a citizen’s rights requiring magistrates to comply with the law. In 1959, the following statute was enacted: 40-518. Copies of search warrants required — Endorsement—Evidence.—All magistrates, clerks of court, judges and any other person or persons whomsoever issuing search warrants shall prepare an original and two (2) exact copies of same one (1) of which shall be kept by him as a part of his official records, and one (1) of which shall be left with the person or persons on whom said warrant is served. The original search warrants shall be served and returned as provided by law. The person or persons as aforesaid who issue said warrants shall endorse the warrants showing the hour, date, and the name of the officer to whom the warrants were delivered for execution, and the exact copy of such warrant and the endorsement thereon, shall be admissible in evidence in the courts. Failure to comply with this section shall make any search conducted under said warrant an illegal search and seizure. See 1959 Pub. Acts ch. 241. In Talley v. State, 208 Tenn. 275, 278, 345 S.W.2d 867, 869 (1961), the Tennessee Supreme Court stated that the intent of the statute “was to secure the citizen against carelessness and abuse in the issuance and execution of search warrants.” (Emphasis added). In 1978, Tennessee adopted the Rules of Criminal Procedure which also deal with search and seizure. Rule 41(c) provides essentially the same requirements as T.C.A. § 40-518: Issuance; Contents; Copies; Failure to comply. — A warrant shall issue only an affidavit or affidavits sworn to before the magistrate and establishing the grounds of issuing the warrant. If the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. The search warrant shall be directed to and served' by the sheriff or any deputy sheriff of the county wherein issued. Any constable, or any other peace officer with authority in the county. The search warrant shall command the peace officer to search forthwith the person or place named for the property specified. The magistrate shall prepare an original and two exact copies of the search warrant, one of which shall be kept by the magistrate as a part of his or her official records, and one of which shall be left with the person or persons on whom the search warrant is served. The magistrate shall endorse upon the search warrant the hour, date, and name of the officer to whom the warrant was delivered for execution; and the exact copy of the search warrant and the endorsement thereon shall be admissible evidence. Failure of the magistrate to make said original and two copies of the search warrant or failure to endorse thereon the date and time of issuance and the name of the officer to whom issued, or the failure of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being served shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure. (Emphasis added). Because of the creation of this rule, T.C.A. § 40-518 was repealed. See 1979 Pub. Acts ch. 399, §§ 1, 5; T.C.A. § 40-518 (repealed) Compiler’s Notes (Supp.1980); see also State v. Steele, 894 S.W.2d 318, 319 (Tenn.Crim.App.1994) (concluding that a similar intent exists for Rule 41(c) as existed for T.C.A. § 40-518). Considering the foregoing, we conclude that adopting a good faith exception under the Tennessee Constitution would unduly reduce the protections contemplated for our citizens by the Tennessee Constitution, the legislature, and the Tennessee Supreme Court. As previously noted, the state’s brief does not directly rely on the search warrant, but upon the capias issued by the Knoxville City Court Clerk. Given the historical interest in ensuring that citizens be secure against unreasonable government intrusion, we do not believe that the issuance of a capias affords the state any greater latitude than a search warrant. -In any event, as the defendant argues, we conclude that a good faith exception cannot apply to a void arrest warrant or other arrest order issued by a person without issuance authority. We are persuaded by the analysis in United States v. Scott, 260 F.3d 512 (6th Cir.2001), in which the court concluded that a retired Sequatchie County General Sessions • judge did not have the authority to issue the search warrant in question. In rejecting a claim of good faith reliance, the court stated: Despite the derth of case law, we are confident that Leon did not contemplate a situation where a warrant is issued by a person lacking the requisite legal authority. Leon presupposed that the warrant was issued by a magistrate or judge clothed in the proper legal authority, defining the issue as whether the exclusionary rule applied to “evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” Leon, 468 U.S. at 900, 104 S.Ct. 3405, 82 L.Ed.2d 677 (emphasis added). Indeed, Leon noted that it left “untouched the probable-cause standard and the various requirements for a valid warrant.” Id. at 923, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. At the core of these various requirements is that the warrant be issued by a neutral and detached judicial officer. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d. 783 (1972). We therefore hold that when a warrant is signed by someone who lacks the legal authority necessary to issue search warrants, the warrant is void ab initio. Scott, 260 F.3d at 515. In the defendant’s rape case, this court concluded that the Knoxville City Court Clerk did not have authority to issue the capias. Huskey, 2002 WL 1400059, at *47, slip op. at 51. As importantly, this court concluded that the capias was void because it was issued in the name of the City of Knoxville and not the State of Tennessee. Id. 2002 WL 1400059, at *47, slip op. at 50; See McLendon v. State, 92 Tenn. 520, 525, 22 S.W. 200, 202 (1893) (holding that a writ or other process that does not properly run in the name of the State is void upon its face). We conclude that the trial court correctly suppressed the items seized from the defendant’s residence. B. Consent The state acknowledges that the trial court found that the defendant’s father’s consent to search did not extend to the defendant’s bedroom. It claims, though, that whether Mr. Huskey consented to a search that did not include the defendant’s bedroom “is disputed” and that its position is that Mr. Huskey consented to a search of the defendant’s room. We note, however, the trial court’s findings will be sustained as long as the evidence does not preponderate against those findings. In this regard, Detective Upchurch’s testimony supports a finding of consent while Patrolman Huskey’s testimony supports a finding of no consent to search the defendant’s room. Under these circumstances, we defer to the trial court who had the opportunity to observe the witnesses. We conclude that the evidence does not preponderate against the trial court’s finding that the defendant’s parents did not consent to a search of the defendant’s bedroom. The state also asserts that evidence shows that when the officers “asked” the defendant to come with them, he agreed to let them accompany him to his bedroom in order for him to get his shoes. They assert that he did not object to the officers’ presence in his bedroom at that time. The problem with this argument is that the evidence reflects that the officers had already told the defendant that he was in custody and that they would have to accompany him to his room in order to get his shoes. We believe the record supports a finding that the defendant acquiesced to authority and did not voluntarily consent to the officers entering his room. See Bumper v. North Carolina, 391 U.S. 543, 549-50, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968); State v. Clark, 844 S.W.2d 597, 599 (Tenn.1992) (“Consent to enter and search a home mil not be lightly inferred, nor found by mere acquiescence to unlawful authority.”). III. DEFENDANT’S OTHER ISSUES The defendant states that if we reverse the trial court’s ruling suppressing his statements or the evidence seized from his home, we should consider other grounds he raises for suppression of the statements or evidence. Relative to his statements, the defendant claims that his rights were not waived and his statements were not made knowingly, voluntarily, and intelligently because he was mentally hi, illegally arrested, and illegally detained; that the statements were obtained in violation of his Sixth Amendment right to counsel; and that the statements were obtained by investigators whose oaths of office were not filed in the Knox County Clerk’s office, thereby rendering the investigators’ actions illegal as Class C misdemeanors. See T.C.A. §§ 8-18-109, -113. Relative to the items seized from his home, the defendant claims that they were illegally seized because their criminal relevance was not immediately apparent and was only determined after the seizure. He also claims that the items were seized by criminal acts in that the investigators had not filed their oaths of office in the Knox County Clerk’s office. Obviously, our ruling in this case obviates any need to address the issues the defendant raises only as a contingency. However, we also believe that the status of this case does not require us to address the defendant’s issues regardless of our ruling. The state’s appeal of a pretrial order suppressing evidence is ordinarily interlocutory in nature. See State v. Phillips, 30 S.W.3d 372, 373 (Tenn.Crim.App.2000). However, if the “substantive effect of the ruling results in a dismissal of the indictment,” the state may proceed by an appeal as of right under Rule 3(b), T.R.A.P. Id. On the other hand, because a defendant may appeal an order denying suppression if convicted, this court is not inclined to allow an interlocutory appeal in such a case. See State v. Hartsfield, 629 S.W.2d 907, 908 (Tenn.Crim.App.1980); State v. Gawlas, 614 S.W.2d 74, 75 (Tenn.Crim.App.1980). We acknowledge, as the defendant also notes, this court had previously denied his interlocutory appeal regarding many of the grounds he raises, stating that the defendant could raise them in this appeal as of right by the state. However, upon further consideration, we believe that the nature of this appeal does not lend itself to consideration of the defendant’s issues that are unrelated to the issues raised by the state. CONCLUSION In consideration of the foregoing and the record as a whole, we affirm the judgment of the trial court.