### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 5, 200 6

STA TE OF TENNES SEE v . SANDRA EVANS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 05-03656 Car olyn Wad e Blackett , Judge

No. W2006-00167-C CA-R 3-CD - F iled Septem ber 13, 2007

The de fenda

nt, Sandra Eva

ns, was convic ted of fir st deg ree felony murder in the perpe tration of thef t and voluntary

manslaug hter (a

Class C felony). The c onviction for voluntary manslaug hter wa s
me rg e d w ith the fe lony mur de r co nv ic tio n, a nd the de fe nd a nt w a s se nte nc e d to lif e imp ri so nme nt. On appe al, t he defenda

nt challeng es t he admissi bility of hea rsay testimony

under the exceptions for

e xcit e d u tte ra

nc e s, a nd me dic a l di a g no sis a nd tr e a tme nt. Th e de fe nd a nt a lso c on te nd s th a t c e rt a in te sti mony vio la te d h e r r ig ht to c on fr on ta tio n a nd that th e e vid e nc e , a s a

wh ole , w a s in su ff

ic ie nt t o
su pp or t th e c on vic tio ns . Upo n r e vie w, we re ve rs e the c on vic tio n a nd re mand fo r a ne w tri a l.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t R e ve r se d and Rem anded

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which D AVI D G. H AYES a nd J.C. M C L IN , J J ., joined.

Rob e rt Wils on Jone s, Di str ic t Pu

bli c De fe nd e r; a nd

Ga rl a nd Er g üd e n a

nd Rob e rt Tr e nt Ha ll, As sis tant P ub lic De fe nd e rs , f or the a pp e lla nt, Sand ra Ev a ns

.
Rob e rt E. Coo pe r, Jr., At tor

ne y Ge ne ra l and Re po rt e r; L e sli e E. Pr ic e , A ssi sta nt A tto rn e y

Ge ne ra l; Wil liam L . Gi b b o n s , Di strict Attorney Gene ral; and Stac y

McEndre e, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

W i l l i e A l b e rtG u i n n , t h e v i c t i m i n t h i s c a s e , r e c e i v e d s e v e r e b u r n s t o h i s h e a d
, u

p p e r b o d y, and upper extremiti es at his home on Nove mber 16, 2002. The victim drove himself to the Re g ional Medica l Center in Memphis (Med) wher e he w as treated. The victim suc cumbed on Dec ember 8, 2002, due to complications re sulting fr om the burns. The defe ndant was indicted for pr emeditated first deg ree murder a

nd first deg ree felony murder in the perpe tration of theft. A jury convicted the defe ndant of voluntary

manslaug hter a

nd felony murder.-2-

Wendell Guinn, the victim’s son, visit ed with his father at the hospital emer g ency room on No ve mbe r 1 6, 20 02

. Wen de ll Gu inn a sk e d the vic tim ho w the burn s h a d h a pp e ne d. Th e vic timsa id the def endant ha d come to the victim’s house and asked to stay there that night. The victim told her she could stay

in the front of the house. L ater , the defe ndant woke him and asked f or money . The victim refuse d her a

nd went bac k to sleep. The vic tim wa s awakened by something w et being poure d on him. The defe ndant then took an a erosol ca n and lit a flame that set the victim on fire. The victim exti ng uished the flames by g etting into the bathtub. The defe ndant then took the victim’s

wa lle t and jum

pe d out the wi nd ow

. Th e vic tim dr ov e him se lf to the ho sp ita l. We nd e ll G uinn s a id that his father

seeme d to be in pain but rela ted the eve nt in a calm and c ohere nt manner.

L a te r o n N ov e mbe r 1 6, Wen de ll G uinn w e nt t o h is fathe r’ s home

. I n the vic tim ’s be dr oo m, he sawa lig hter, a

n aer osol can, and an empty bottle of alcohol on the f

loor. A shirt with burn holes

wa s in the batht ub . Abo ut a

we e k late r, Wen de ll G uinn c le a ne d th e ho us e a nd threw th ose i te ms
awa y . The victim’s w allet was not f ound. Wendell G uinn stated that he knew the defe ndant and that his father and the de fenda

nt had a r elationship over a period of ap p ro x i m at el y one y ear . The de fe nd a nt h a d, a t ti me s, liv e d w iththe vic timbu t w a s n ot l ivi ng the re a t th e tim e of thi s in c ide nt.

Dr. L aura Cooper was the g ener al surg eon on duty when the victim pr esente d himself at the

emer g enc y

r o o m. D r

. Co o p e r

s tate d th a t t h e v ic ti m h a d

s e c o n d d e g r e e b u r

n s to mo r e th a n f

if te en to t we nty pe rc e nt of his bo dy

. Th e burn s w e re pr ima ri ly on the he a d, ne c k, fa c e , c he st, up pe r a rm s, and shoulders. She c hara cter ized second-de g re e b u rns as the most painful of bur ns and said the victim was under stre ss the entire time he was in the hospital. Dr. Cooper’ s only contac t with the victim wa s from 3:00 a.m. until 7:00 p.m. on November 16. The victim told her that alcohol wa s thrown on him and lit with a flame.

J oy Adams, the victim’s daug hter, wa s notified of her fathe r’s hospitalization between 1:00 a.m. and 2:00 a.m. on November 16. She went to the hospital a nd talked to the victim a fter he had be e n mov e d to a ro om thr e e or fo ur ho ur s late r. Mr s. Ad a ms w a s uns ur e of his de me a no r a s sh e sa id the victim would alway s display a “happy fac e” to her. She did believe the victim was in pain. The vic timtol d h e r t

hat he wa s a sle e p a t ho me un til he wo ke up to f ind the de fe nd a nt s mok ingc ra c k in the house. The defe ndant wanted money , and the victim t old her to leave. The victim then lay down ag ain. Afte rwa

rds, he felt something wet beingpoured on him and the n a flame ig nited him. The vic timsa id h e pu t out th e fl a me s in the batht ub a nd the n d ro ve to t he ho sp ita l.
Chy ra l Cr a wf or d, a sis te r of the vic tim , h e a rd the vic timre la te the e ve nts a t a pp ro xima te ly 9:30 a.m. on November

16. The victim sa id the defe ndant had wa nted money

from him, but he had ref used. The defe ndant doused the victim by pouring alcohol from a bottle. Whil e he wa s wiping his face , the def

endant se t him afire using an ae rosol can a nd a lig hter. The defe ndant t hen took the vic tim ’s wa lle t and le ft thr ou g h a win do w. Mr s. Cr a wf or d s ta te d th a t th e vic timha d n o p ro ble ms speaking as he r elated the se eve nts and that he ne ver c hang ed his version of w hat had ha ppened.
Evely n L incoln, another sister of t he victim
, visited him with Chy ral Cra wford on N ovember 16. She stated t hat t he victim told them that he wa s asleep w hen the victim came into his room and-3-

asked f or money . He r eplied that he ha d no money
, and he ag ain laid down. The vic tim said that he sa t up wh e n h e fe lt so me thi ng we t on his he a d a nd fa c e ; he the n sa w a ba ll of fl a me

. Th e vic tim also said that he c ould not find his wallet when he prepa red to le ave. Ms. L incoln went with other relatives to the v i ct i m ’s h ouse and sa w an a erosol ca

n and an a lcohol bottle in the floor of the vic tim ’s be dr oo m.

Of fi c e r P a ul Ne e ly
, of the Me mph is Pol ic e De pa rtme nt, int e rv ie we d the vic tima t 10 :45 a .m.
on No ve mbe r 16. He state d tha t the vic tim ’s sp e e c h wa s ver y la bo re d. Th e vic timtol d h im tha t hi s g irlfriend ha d thrown alc ohol on him and se t him on fire. Offic er Nee ly submitt ed a repor t and had no further dealing s with this case.

Dr. Micha el Kelton wa s the victim’s primary car e phy sician while the vic tim was a patient at the Med. D r. Ke lton first spoke wit h the vi ctim at approx imately 6:00 a.m. on November

16. He

sa id t he vic tim un de rs too d what wa s hap pe nin g . T he vic timtol d D r. Ke lto n th a t a fr ie nd wa nte d to borrow mone y

and that he r efuse d. The fr iend threwflammable liquid on him, and a scuf fle e nsued until the friend spra

y ed him with a flammable liquid and set him afire using aer osol and a lig hter.

I n No ve mbe r 20 02 , Me mph is Pol ic e Of fi c e r B ri dg e tte Ki ng wa s a ssi g ne d to th e do me sti c violence unit. Offic er King interviewe d the victim a wee k or two afte r the incident. She descr ibed the vic tima s jovi a l but sa id that he ta lke d w ithdif fi c ult y . T he de fe nd a nt w a s id e nti fi e d a s a su sp e c t, and Of fice r King filed a w arr ant for the defe ndant’s ar rest. The case was tra

nsfer red to the homicide unit after the victim’s death.

Dr. Jeffre y

L ehman, a

n internal medicine phy sician, first sawthe victim on November 18. The victim told him t hat his burns were the re sult of his girlfr iend pouring alcohol on him and setting him afire.

Offic er Joe Stark, of the Memphis Police Depa rtment, was the c oordinator of this case a fter it was transfe rre d to homicide. Offic er St ark became involved on Dec ember 9, and he w ent to the vic tim ’s ho me on De c e mbe r 12

. Th is wa s a pp a re ntl y the fi rs t vi sit

to t he c ri me sc e ne by

of fi c e rs

. During his thirty -minute investigation of the house, Offic er Stark found one window with a broke n lock.

Dr. Te resa

Campbell, a fore nsic patholog ist, performe d an autopsy of the victim’s body

on Dec ember

9. She testified that the victim died due to c omplications c aused by the burns he r ece ived.

The de fenda

nt te stified in her own be half. She stated that the victim had often a bused her phy sically

during their off

and on two-y ear rela tionship. She said that, due to the victim’s g ambling losses, she had g iven him money and her food stamps. Despite this, the victim continued to beat he r. On the nig ht of t h i s i n ci d ent, she ha d told the victim she was leavinghim. The victim locked the doors to the house a

nd drag g ed her into his bedroom where he beat he r with a be lt and choked he r. The de fenda

nt was attempting to leave thr oug h a window whe n the victim threw water on he r. The de fe nd a nt c ha

ng e d c lo th es, and the vic timpla c e d a be lt o n h e r n e c k a

nd wa s c ho kin g he r w hil e-4-

threatening to cut her into piec es. As the two strug g led, the def endant g rabbe d an ae rosol can a nd spray ed him. She then threwthe contents a bottle of alcohol on the vi ct i m

. She stated that the victim’s shirt must have been on fire f rom his contact with a g as stove during their strug g le, but that sh e wa s u na

wa re of thi s w he n s he do us e d h im w itha lc oh ol. Th e de fe nd a nt s a w t he fl a me s th a t a lso rolled down he r ar

ms. She gr abbed he r purse and we nt out a wi n d o w. She denied takingthe vic tim ’s wa lle t.

Sufficienc y

T h e d e f e n d a n t c o n te n d s th a t th e e v id e n c e w a s in s u f f ic ie n t to c o n v ic t h e r “ o f any g rade of homicide g reater than voluntar y manslaug hter.” When suf ficienc y of the evidenc e adduce d at trial is challeng ed on app ea l
, t h e rele vant question is “whethe r, af ter view ing the evidenc e in the lig ht

mos t f a vo ra ble to t he pr os e c uti on , a

ny ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the of fe ns e c ha rg e d b e y on d a

re a so na ble do ub t.” Jac ks on

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 (1 97 9) ; Te nn

. R. Ap p. P. 1 3( e ). Al l qu e sti on s in vo lvi ng the c re dib ili ty of wi tne sse s, the weig ht and value of the evidenc e, as w ell as the fa ctual issues ra ised by the evidenc e ar e re solved by the trier of

fac t. State v. Bland, 958 S.W .2d 651, 659 (Tenn. 1997) . A jury conviction re moves the pre sump t i o n of innoce nce a nd repla ces it with one of guilt so t hat, on appe al, a c onvicted defe ndant has the burden of demonstrating it is insufficient. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982)

.
The e vidence prese nted to t h e j u ry , viewed in the lig ht most favorable to the State, was sufficie nt to establish that the defe ndant was g uilty of felony murder. Fe lony murder is the “ killing of anothe r committed in the perpe tration of or attempt to perpe trate a ny first deg ree murder, a ct of te rr or ism , ar so n, ra

pe , r ob be ry , b ur g lary , th e ft , k idn a pp ing , a g g ra

vate d c hil d a

bu se , a g g ra

vate d c hil d neg lect or a ircra ft pirac y .” T. C .A. 39-13-202( a)( 2). The me ntal state re quired for conviction of felony murder is the intent to commit the underly ing of fense

. T.C.A. § 39-13-202( b). I n this case, the under ly ing f

elony was theft. “A person commi ts theft of pr operty if, with intent to deprive the

owner of property
, the person knowing ly obtains or exercises c ontrol over the pr operty without the

owner ’s ef

fec tive consent.” T.C.A. § 39-14-103.

I n rec alling how he re ceive d the eve ntually fata l burns, the victim told five relatives a nd three

me dic a l pe rs on ne l th a t the de fe nd a nt (o r in some c a se s, g ir lf ri e nd ) h a d p oure d a

fl a mma ble liq uid

on him a nd the n ig nit e d th e bla ze. Th e vic timtol d h is r e la tiv e s th a t th e de fe nd a nt d id t his be c a us e he had r efuse d her demands for money

. The victim also told the relatives who t estified that, af ter setting him af

ire, the de fenda

nt took his wallet and left by a window.

Wit hin twenty -four

hours of t h e v i cti m’s injuries, Wendell Guinn, Chy ral Cra wford, a nd E v e ly n L in c o ln v is it e d th e v ic ti m’ s h o me

. A ll th r e e w it n e s s e s te s ti f

ie d th e y f o u n d a n a e r o s o l c an and an al cohol bottle on the victim’s bedroom floor . Wendell Guinn also found a lig hter in the victim’s bedroom. The vic tim’s wallet was ne ver f ound.-5-

Th e de fe nd a nt a dmitt ed sp ray ingthe vic timwi th a e ro so l and po ur inga lc oh ol o n h im, althoug h she cla imed that it was in self-de fense and that the f ire wa s acc idental. She furthe r admitted that sh e le ft

thr ou g h a

wi nd owwi tho ut r e nd e ri ng a ssi sta nc e to t he vic tim

.

Ba sed on the e vidence prese nted at trial, a rational jury

could fi n d the eleme nts of felony

mur de r s uf

fi c ie nt b e y on d a

re a so na ble do ub t.

Hea rsay Testimony

T h e defenda

nt contends that ce rtain hea rsay testimony

was e rrone ously

admitted over ob je c tio n o n th e ba sis of 1) me dic a l dia g no sis a nd tr e a tme nt, 2) e xcit e d utte ra nc e , a nd 3) fa ilure to

c on sid e r t he c on fr on ta tio n is su e in t e sti mon ia l st a te me nts by the vic tim

.
Medica l Diag nosis and Treatment
Among the exceptions to the g ener al ban on he arsa y is that of a stateme n t for purpose s of medical diag nosis and trea tment as containe d in Tennesse e Rule of Evide nce 803( 4). The following are not excluded by the hea rsay rule: Statements made for

purposes o f

me dical diag nosis and trea tment describing medical history ; past or pre sent sy mptoms, pain, or sensations; or the inception or g ener al

c ha ra c ter of th e c a

us e or e xter na l so ur c e the re of

ins of a r a s r e a so na

bly pe rt ine nt t o dia g no sis a nd

tr e a tme nt.

Th e imp ortan t li mit a tio n o f t his e xce pti on

is that th e state me nt m us t be “ pe rt ine nt t o d ia g n o s is a n d tr e a tm e n t. ” So me s tate me n ts th a t a r e in te n d e d b y th e d e c la r a n t to be used for diag nosis and treatment are not alway s admissible. Their admissibilit y hinge s on whether

they are
rea sonably pertinent to dia g nosis a nd treatment. State v. Wil liams, 920 S.W .2d 247, 256 (Tenn. Crim. App. 1995), citing Neil Cohen et al., Tenne ssee L aw of Evidence § 809 [5] (p. 8-99) (4th ed. 2005).

Dr. Ke lton testified conce rning the victim’s argument over money with a “f riend.” This was irrele vant to diag nosis and treatment and should have be en re dacte d. Wil liams, 920 S.W .2d at 256.

Dr. L ehman te s t i fi ed t h at the victim informed him that the victim’s g irlfriend ha d poured alcohol on him a

nd set him on fire. Upon this re cord, identification of the of fende r does not see m pertinent to t he medical diag nosis and tre atment. Fur thermore , Dr. L ehman f

irst saw the victim on November

18, well af

ter the vic tim’s burns were identified and a ppropriate treatment had beg un. This testimony

also should have be en re dacte d.

By contra st, Dr. Cooper’ s testimony was more restra ined as it omitted some of the extraneous inf or ma tio n unn e c e ssa

ry fo r m e dic a l di a g nosi s and tr e a tme nt. She state d th a t th e vic timha d s a id he ha d alc oh ol t h r o w n o n h i m a n d i g n i t e d w i t h a f l a m e

. T h e r e c o r d

b e f o r e u s d o e s n o tr e v e a l if medical tre atm en t wo u ld be diffe rent for alcohol burns than f

or any other flammable liquid.-6-

Howeve r, we are of an opinion that t he method of application of t he flammable liquid is irrele vant to the medical tre atment. Redac tion would have bee n proper in this case.

Ex cited Utter ance

Four of the victim’s re latives wer e allowe d to testify as to w hat the victim told them about the cause of his bur

ns. The trial court allowed this testimony over objection under t h e h earsay
e xce pti on fo r a n e xcit e d u tte ra

nc e . T e nn . R. Ev id. 80 3( 2) . T he te xt of the ru le is a s f

oll ow s:
The following are not excluded by the hea rsay rule: A statement re lating to a startling e vent or c ondition made while the decla rant wa s under the stre ss of excitement cause d by the eve nt or condition.

Th e ratio na le s f

or thi s e xce pti on

have be e n e xpla ine d a s f oll ow s: First, since this exception applies to statements whe re it is likely there was a

lack of

re fl e c tio n –

a nd po te nti a l f

or fa br ic a tio n –

b y a d e c lara nt w ho sp on tane ou sly

e xcla ims a stateme nt in response to an e x citing e vent, there is lit tle likelihood, i n t h eo ry at le a st, of ins inc e rity . T he Te nn e sse e Court of Cr imi na l App e a ls e loq ue ntl y
sum m ar ized this view: “The underlying the ory of this exception is t hat circ umstances may

produce a conditio n of excitement which tempora rily still s the capa cit y of re flec tion and produce s utteranc es fr ee of conscious fa

brica tion.” The la c k o f reflect ion

is p re se nt b e c a

us e Rul e 80 3( 2) re qu ir e s th a t th e de c lara nt m us t

a c tua lly be un de r the str e ss of

e xcit e me nt w hil e sp e a kin g . T his he a rs a y e xce pti on

is not available for a statement made whe n the dec lara nt is no longer

under stre ss. But

a state me nt m a y

qu a lif y a s an exci te d utte ra

nc e e ve n if the de c lara

nt ha s a motiv e to make a self-se rving statement. Second, or dinarily the statement is made wh i l e the memory of the event is still fre sh in the declara nt’s mind. This means that the out-of

court statement about an event may be more acc urate than a much l at er in-court de sc ri pti on

of it. Cohen et al., at § 807 [p. 8-73 - 8-74], citing State v. L and, 345 S .W.3d 516, 528 (Tenn. Crim. App. 2000).

I t has bee n held that “[t] he ultimate test is spontaneity and log ical re lation to the main event and whe re a

n act or decla

ration spring s out of the transac tion while the parties are still laboring under the excitement and strain of the cir cu mstances a

nd at a time so nea

r it as to prec lude the idea of deliberation and fabr ication.” State v. Smith, 857 S.W .2d 1, 9 (Tenn. 1993)

.
The tim e i n t erval betwee n the startling event is but one fa ctor in dete rmining w hether a statement wa s under stre ss and excitement

. Ot h er r eleva nt considerations include the nature and

s er i o u s n es s of the e vent; the appe ara nce, be havior, a

nd circ umstances of

the dec lara

nt, including such cha rac teristics as ag e and phy sical and me ntal condition; and the content of the stateme nt itself,-7-

which may

indicate the pr esenc e or a bsence of st re s s

. S t at e v. Stout, 46 S.W .3d 689, 700 (Tenn. 2001).

The victim related the eve nts that resulted in his burns to Wendell Guinn a fter the victim had dr ive n h ims e lf

to t he ho sp ita l and

ha d r e c e ive d e me rg e nc y

tr e a tme nt. Wen de ll G uinn s a id t he vic tim spoke in a c alm and cohe rent manne r, althoug h he see med to be in pain.

J oy Adams hea

rd t he victim ’s ver sion of the ca use of the bur

ns sever al hours af

ter the e vent

a nd a ft e r t he vic timwa s p la c e d in a pr ivate ro om. I n d e sc ri bin g the vic tim ’s de me a no r, Joy Ad a ms said the victim alway s display ed a “ happy fac e” to he r.
Chy ral Cra wford a nd Evely n L incoln visited the victim after 9:00 a .m. on November 16. The vic timha d r e c e ive d tr e a tme nt a nd ha d b e e n p la c e d in a ro om. Chy ra l Cr a wf or d state d that the vic tim had no pr o b l em s s p ea king a s he re lated the e vents. Evely n L incoln stated that the victim’s appea ranc e wa s upsetting to her but that he assure d her “ it’s goingto be all rig ht.”

Offic er Paul Ne ely interviewe d the vi ctim at 10: 45 a.m. on November 16. He state d that the victim’s speec h was ve ry labore d and that it was diff icult for the victim to talk.

Offic er Br idge tte King
, then a member of the domestic violence unit of the Memphis Police De pa rtment, in te rv ie we d th e vic tima we e k o r t

wo a ft e r h e su sta ine d h is b ur ns . Sh e state d th a t, based on the victim’s statements conce rning the incident, she identified the defe ndant as the suspec t

a nd c a us e d a wa rr a nt t o b e take n f

or he r a rr e st.

I n our view, none of the decla rant’s statements, as re peate d in the above te stimony , meet the

c ri te ri a fo r e xcit e d u tt era

nc e s. No ne of

the state me nts a

pp e a r s po nta

ne ou s b ut, rathe r, a s c a lm

re c i t a t i o n s

. T h e tr i a l c o u rt a d o p t e d a n a r b i t r a r y t w e n t y
- f

o u r

- h o u r r

u l e t h a t w o u l d a d m it t he se statements uttered wi thin twenty -four hours of the inc ident. This standard is unknown to our jur is p r u d e n c e a n d

ig n o r e s th e r a ti o n a le s s u

p p o rti n g th e e xc e p ti o n

. A t t r ia l, th e St a te p la c e d

g r e at emphasis on the continuing stress of the victim due to the pa infulness of his injuries. We have no doubt that the pain was sever e and continued, in a ll pr obability
, until dea th. Howeve r, the exception is based in par

t on the stress of the star

tling eve nt itself and not on continuing pa in.

For the f o r e g o in g r e a s o n s , w e c o n c lu d e th a t th e s u b je c t te s ti mo n y d id n o t me et the

re qu iremen ts of the e xcit e d u tte ra nc e e xce pti on

a nd sh ou ld h a ve be e n e xclu de d a s in a dmi ssi ble h e a r s a y.

Confrontation I ssue

Th e de fe nd a nt a lso c on te nd s th e vic tim ’s state me nts , a s p re se nte d b y the Sta te ’s wi tne sse s, vio la te d th e de fe nd a nt’ s r ig ht t o c on fr on t he r w itn e sse s.-8-

The United States Supreme Court i n Crawf ord v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), r eexa

mi n e d th e a p p lication of the Confrontation Cl ause of the United States Constitut ion and the admissibilit y of hearsay testimony

. Our S upreme Court explained the analy sis necessa ry when the prosec ution attempts to i ntroduce a decla rant’s out-of

-cour t statement and the de fenda nt raises a Confronta tion Cl ause obje ction. [T] he initial determination under Crawf ord is whether t h e stateme nt is testim onial

or no nte sti mon ia l. C ra

wf or d, 54 1 U .S. a t 68 , 1 24 S. Ct . 1 35 4. I f the state me nt i s testimonial, then the trial court must deter mine whether the dec lara

nt is available or unavailable to testify . I f the de clar ant is av ai l ab le, then ther e is no confr ontation problem: “[t] he Clause does not bar admission of st atement so long as the de clar ant is present at trial to d ef

en d o r ex plain it.” I d. at 59 n. 9, 124 S. Ct. 1354 (citing C a l i f o r n i a v

. G r e e n , 3 9 9 U

. S

. 1 4 9 , 1 6 2 , 9 0 S

. C t

. 1 9 3 0 , 2 6 L. E d

. 2 d 4 8 9 ( 1 9 7 0 ) )

. If the dec lara

nt is unavailable, the tria l court must determine w hether the ac cused ha d

a pr ior oppo rt un ity to c ro ss- e xami ne the de c lara nt a bo ut t he su bs tanc e of

thi s statement. I d. at 68, 124 S. Ct. 1354. I f the a ccuse d h ad such an opportunity , the statement may

be admissible if it is not otherwise excludable hea rsay . I f the a ccuse d did not have this opportunity , then the stateme nt must be ex cluded.

I f the stateme nt is nontestim onial, the Confrontation Clause a naly s i s does not end. I nstead, c onsistent with Ohio v. R oberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L . Ed. 2d 59 7, the c ourt

mus t de te rm ine wh e the r t he ou t- of -c ourt state me nt b e a rs a de qu a te indicia of re liability

– specific ally , whether

it falls within a “firmly ro o t ed hea rsay exception ” o r b ears “par

ticularized g uara

ntees of tr

ustworthiness.” See Cra

wford, 5 4 1 U

. S. a t 6 8 , 1 2 4 S. Ct

. 1 3 5 4 ( s tati n g th a t “ [w ]h e r e n o n te s ti mo n ia l h e a r s ay is at iss ue , it is w ho lly c on sis te nt w iththe F ra

me r’ s de sig n to a ff

or d th e Sta te s f

le xibil ity in their deve lopment of hea rsay law – as doe s [Ohio v.] Roberts”). State v. Maclin, 183 S.W.3d 335, 351 (Tenn. 2006).

Th e vic tim ’s state me nts to t he tw o off ic e rs we re duri ng a n inte rr og a tio n a nd wo uld c e rt a inl y qualify as testimonial in nature. In Crawf ord, it wa s held that the Confrontation Clause of the United Sta te s Co ns tit

uti on : applies t o “w i t n esses” ag ainst the ac cused – in other words, those who “ bear testimony .”

. . . “Te stimony ,” in turn, is ty pically “[a] sol emn dec lara tion or aff irmation made for

the purpose of

establishing o r p ro v i n g some fac t.” . . . An

acc user who makes a f

ormal statement to g overnme nt office rs bea rs testimony

in a sense that a

person who makes a c asual remark to an ac quaintance does not. The constitutio n al t ex t, like the history underly ing the common-law r ight of confr ontation, thus reflec ts an espec ially acute conce rn with a specific ty pe of out-ofc ourt state me nt.

Va ri ou s f or mul a tio ns of

thi s c or e c la ss o f “ te sti mon ia l” state me nts e xist: “ e x pa rt e in- c ourt te sti mony or its fu nc tio na l equ iva le nt – th a t is , ma te ri a l su c h a s a ff

ida vit s,
c us tod ia l e xami natio ns , pr ior te sti mony that the de fe nd a nt wa s un a ble to cr os s--9-

examine, or similar pretria l statements that decla rants would re asonably

expect to be used prose cutorially ,” . . . “e x t ra j u dicial statements . . . conta ined in formalized testimonial materials, such as a ff i davits, depositions, prior testimony , or confe ssions,” . . . “statements that wer e made unde r circ umstances whic h would lead an objec tive witness rea sonably to be lieve that the statement would be a vailable f or use at a later tria l[ .]” . . . Crawf ord, 541 U.S. at 51-52, 124 S. Ct. at 1364 (citations omitted).

Th e de fe nd a nt h a d n o p ri or op po rt un ity

to c ro ss- e xami ne the vic timc on c e rn inghis decla rations made e ither to rela tives or police of

fice rs. I n addition, we have previously conclude d that the statements did not qualify as a he arsa

y exception and, thus, were subject to exclusion.

Ho we ve r, the de fe nd a nt h e re in did no t inte rp os e a c on fr on ta tio n o bje c tio n a t tr ia l no r r a ise thi s is su e in t

he mot ion fo r ne w tri a l. Thus , th e iss ue a s to c on fr on ta tio n w a s w a ive d. Se e Te nn . R. App. P. 3(e); State v. Courtney Means, No. W2005-00682-CCA-R3-CD, 2006 Te nn. C ri m . App. L EXI S 242, at *15 (Te nn. Crim. App., at J ackson, Ma r. 21, 2006) ( holding that a lthough the defe ndant had objec ted o n t h e gro unds of hea rsay , he wa ived the issue of c onfrontation by not ob je c tin g on

that ba sis ). An iss ue may no t be ra ise d fo r the fi rs t tim e on a pp e a l. Te nn

. R. Ap p. P. 36(a)

.
Conclusion

After revie w, we c onclude that the evidenc e, as pr esente d at trial, wa s sufficient to support the defen d an t’s conviction. Howe ver, w e fur ther c onclude that much of the evidenc e wa s inadmissible hearsa

y and did not qualify

as exceptions under me dical diagnosis and tre atment or a s
a n e xcit e d u tte ra

nc e

. Th e de fe nd a nt wa ive d the c on fr on ta tio n iss ue , b ut t he e vid e nc e wa s o the rw ise inadmissible as hear say

. The error in admitting the inadmissible evidenc e requires a reve rsal of the defe ndant’s convic tion and rema nd for a new tria l.

___________________________________

J OHN EV ERETT WI L L I AMS, J UDGE