IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

February 12, 2010 Session Heard at Murfreesboro

1

STATE OF TENNESSEE v. DARRELL FRANKLIN

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 07-01517 James C. Beasley, Jr., Judge

No. W2007-02772-SC-R11-CD - Filed April 29, 2010

We granted this appeal to determine whether the admission into evidence of an automobile

license tag number observed and written down by a bystander near the crime scene who did

not appear at trial violated the defendant’s right to confrontation under the federal and state

constitutions. A few seconds after being robbed at her place of employment, the victim ran

out of the business, told a bystander that she had been robbed, and asked the bystander to

observe the tag number of the vehicle operated by the man who had just left the business.

The bystander did so and then came inside the store to write the number down for the victim.

The victim added other descriptive information about the robber to the same piece of paper

and then turned it over to the police. The tag number was traced to a vehicle owned by the

defendant, whom a jury ultimately convicted of one count of robbery. The Court of Criminal

Appeals reversed the conviction, holding that the written tag number was “testimonial

hearsay” within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), and Davis v.

Washington, 547 U.S. 813 (2006), and concluding that the statement’s admission was plain

error. Based on our objective review of the circumstances surrounding the statement, we

conclude that the written tag number was “nontestimonial hearsay” that did not implicate the

defendant’s right of confrontation and was admissible as an excited utterance. We reverse

the judgment of the Court of Criminal Appeals and reinstate defendant’s conviction.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed; Case

Remanded to the Trial Court

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JANICE M. HOLDER,

C.J., and GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

Oral argument was heard in this case on February 12, 2010 in Murfreesboro, Rutherford 1

County, Tennessee, as part ofthisCourt’s S.C.A.L.E.S. (SupremeCourt AdvancingLegal Education

for Students) project.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Matthew Bryant Haskell, Assistant Attorney General; John H. Bledsoe, Senior Counsel;

William L. Gibbons, District Attorney General; and Pamela D. Fleming, Assistant District

Attorney General, for the appellant, State of Tennessee.

Robert Jones, Shelby County Public Defender; Phyllis Aluko (on appeal) and Lawrence R.

White (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellee, Darrell

Franklin.

OPINION

Factual Background

The events giving rise to this case took place at the Yorkshire Cleaners located in a

strip mall at the intersection of Poplar Avenue and Holmes Street in Memphis. At the time

of the events in question, a restaurant was being constructed immediately to the west of the

cleaners, and a Baptist Minor Medical Center was open for business immediately to the east.

On Saturday, July 29, 2006, Melissa Polson was the only employee working at the

Yorkshire Cleaners. Sometime that morning between 10:00 A.M. and 12:00 P.M., Polson

testified that she was serving a customer when she saw another man standing in line. Polson

testified that the man waited for about three minutes while she went to the back of the store

to retrieve the first customer’s clothing. Once Polson finished with the first customer, she

asked this man to state his last name. She thought his answer sounded like “Phillips” but

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was not sure, so she asked the man to say his last name again. Instead of repeating his last

name, the man told Polson, “Give me all your money or I’m going to blow your ass off.”

Based on this threat Polson presumed that the man was armed and would shoot her

if she did not give him the money in the store’s cash register. Looking down, Polson

complied and handed over the money out of the cash drawer. The man then asked Polson

to lift up the drawer to see if larger bills were kept underneath. There were no such larger

bills. The man then told Polson to back up, turn around, and count to ten. Polson testified

that the event “seemed like a long time” but took less than fifteen minutes.

As Polson completed her count to ten, she heard the dinging sound that the store’s

front doorbell made whenever it was opened. Polson then looked at a television monitor

displaying the image from the store’s security cameras. This image showed the man “speed

Every customer’s order was identified by a phone number and by the first three letters of 2

the customer’s last name. Polson testified that it was easier to ask each customer for a last name.

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walking” away from the store to the left. Polson then walked to the front door, and, within

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“maybe a couple of seconds” after hearing the ding, she exited the front door facing the

parking lot. Polson admitted that she “took a chance” by going out of the store so quickly

after the man had left, especially given her belief that he was armed.

Polson testified that, when she exited the front door, the only person whom she saw

was a contractor helping to build the restaurant next door. Polson could see a white minivan

beginning to move, about twenty feet away in the direction that the man had walked after he

exited the store. The white minivan was the only vehicle leaving the parking lot at that time.

Polson could not see the white minivan’s driver or tag number. Polson did not move closer

to obtain the tag number because she did not want to leave the store unlocked with the money

it still had and because she was feeling “a little shaky” after being robbed for the first time

in her life.

Polson asked the contractor where the man went who had just walked out of her door.

She told the contractor that she had been robbed and needed the tag number of the vehicle

that the man had gotten into. Polson testified that, while standing only two to three feet away

from the white minivan, the contractor leaned over and observed its tag number. He then

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walked back to her. When the contractor came back to the store, Polson’s hand was shaking

too badly to write down the tag number herself. Therefore, the contractor wrote down the

tag number for her. Later, Polson wrote details about the man’s face, height, and size on the

same sheet of paper with the tag number. Subsequently, she gave that paper to the police

when they arrived at the scene.

That same morning, Rhonda Dugger and Stephanie Smith were working as

receptionists at the front desk of the Baptist Minor Medical Center (“medical center”) next

door. Each testified that a man entered the medical center and asked their permission to use

the lobby restroom. They simultaneously granted him permission. After using the restroom,

the man then left the medical center. Several minutes after the man left the medical center,

police arrived on the scene, and Dugger and Smith learned that the Yorkshire Cleaners next

door had been robbed.

Although the police provided a compact disc for copying the recording from the 3

surveillance cameras, the owners refused to cooperate with the police in providing the video footage. 

Thus, it is not a part of the record.

The record does not contain any maps or diagrams that illustrate the respective positions 4

of Polson and the contractor or the location of the parked minivan and the route by which it exited

the parking lot. 

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Sergeant John Williams, the first patrol officer on the scene, testified that Polson was

“[v]ery upset and scared” when he arrived at 10:24 A.M. Based on the Yorkshire Cleaners’

location within his assigned ward, Williams estimated that it would have taken him three to

four minutes from the dispatch call to get to the scene. Williams testified that he spoke with

Polson, who explained that a black male had entered the business and demanded that she

empty the cash register. Polson described the man to Williams as six feet tall, heavy set, and

dark complected. Williams also testified that Polson had provided a tag number for the white

minivan leaving the business, and Williams included that tag number in his offense report.

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According to Polson, another officer spoke with the contractor inside the Yorkshire

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Cleaners. Polson testified that she and the contractor both provided the officers on the scene

with their driver’s licenses so the police could contact them later. However, no officers who

testified had interviewed the contractor or had any information about his identity. He was

not called as a witness.

Officer Mondie Quinn was assigned as the case coordinator for the Yorkshire

Cleaners robbery. Quinn testified that he began his investigation by reviewing the offense

report that uniform patrol officers had prepared at the crime scene. He contacted Polson to

verify some of the facts in the offense report. Specifically, Polson described the perpetrator

as an African American male, approximately six feet tall, weighing 200-250 pounds, heavy

set with chubby cheeks, and a light-to-medium complexion.

Next, Quinn ran tag number 523 FTD, which waslisted in the offense report narrative,

through a police vehicle registration database. The tag number was registered to Darrell

Franklin (“Defendant”). During Quinn’s testimony the State introduced the vehicle

registration form for this tag number into evidence as a public document, and Quinn read the

tag number for the record.

Quinn then prepared a photo spread, with Defendant’s headshot placed in the number

five position. On the afternoon of July 31, Quinn, accompanied by Detective Paul Neely,

visited Polson at the Yorkshire Cleaners. Quinn presented Polson with the form entitled

“Advice to Witness Viewing Photographic Display” (“advice form”). This form explained,

among other things, that the persons depicted might or might not have been involved in the

crime, the viewer should not assume that the guilty party is represented in the lineup, and the

Contrary to Polson’s own testimony that she did not personally see the man who robbed the 5

business inside the white minivan, Williams testified that Polson told him at the crime scene that she

had observed the same man leave the parking lot in the minivan. 

 This officer is not identified by name in the record. 6

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viewer should make an identification only if the viewer is “positive.” Polson went over the

advice form, “made sure [she] understood what it was saying,” and then signed the form.

After Polson signed the advice form, Quinn laid the photo lineup down on the store

counter for Polson to review. Quinn “didn’t want to pressure” Polson, so he “walked off”

while she reviewed the lineup. Polson testified that she looked at the lineup for “five to ten

minutes because [she] did not want to just pick someone [she] recognized off of the street”

and because she “just wanted to make sure the person [she chose] was the right one.” She

circled the headshot placed in the number five position and wrote in the space underneath,

“This is the guy that robbed me. He said give me your money or I’ll blow your ass off.” She

signed and dated the form. At trial, Polson conceded that, although she had described the

suspect as clean shaven, she picked the photograph of an individual with facial hair. Polson

explained that “the beard in the photo was so short you could see the shape of [his] face. It’s

not going to change.”

While Quinn was at the strip mall, he and Neely walked next door to the medical

center and spoke with Dugger and Smith. Both Dugger and Smith independently reviewed

and signed an advice form. Then, they separately reviewed a photo lineup. Quinn testified

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that the advice form and photo lineup were identical to the ones that he had given to Polson.

Dugger circled the headshot in the number five position and wrote underneath, “This is [the]

guy that came in our facility to use the restroom 7/29/06.” She signed and dated the form.

At trial Dugger testified that the person who used the restroom looked the same as in the

headshot, and, when specifically asked about whether the person had facial hair,she testified,

“That’s what I picked.” She testified that the person was wearing a baseball cap on the day

he asked to use the restroom.

Smith also circled the headshot in the number five position on her copy of the photo

lineup and wrote underneath, “This is the guy that came in to use [the] bathroom on the day

of [the] robbery.” She signed and dated the form. At trial Smith testified that she was

“positive” about her identification “at that time” when she reviewed the lineup. While

testifying at trial, Smith said that she could not then identify Defendant as the person who

used the restroom. However, she testified that her memory would have been better when she

made the identification on July 31. She could not recall if the person who asked to use the

restroom was wearing a hat.

Dugger testified that she and Smith were each paired with a different officer when they 7

individually reviewed the photo lineup. Dugger did not discuss the lineup with Smith before making

an identification, nor could Dugger see what Smith was doing when Smith made her identification.

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Although Quinn found construction workers on site at the strip mall, Quinn testified

that he could not locate the contractor who wrote down the minivan’s tag number. The patrol

officers did not give Quinn a name and address from a driver’s license, or any other

information that would identify the contractor.

Having obtained three positive identifications of Defendant, Quinn directed the

Criminal Apprehension Team to obtain a warrant and arrest him. After Defendant was

brought into custody, Quinn interviewed Defendant on August 21, 2006. Defendant signed

a waiver of rights before the interview began.

When Quinn informed Defendant of the robbery allegations, Defendant first claimed

that he had been home all of July 29 with his “wife,” Tenniale Shaw. Quinn attempted to

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phone Shaw but was unsuccessful. Quinn then informed Defendant of the description and

tag number of the minivan observed at the scene of the robbery. Defendant responded that

he had been at the family apartment with Shaw’s wheelchair-bound uncle, while Shaw had

the minivan throughout the day. Quinn testified that he spoke with Shaw over the telephone

that evening, and Shaw said that, on July 29, she had gone shopping with her children for

school clothes. Quinn spoke again with Defendant the following day, but that conversation

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only lasted for about five minutes since Defendant did not change his account of events.

Shaw testified for the defense at trial. On July 29, Defendant had left their apartment

around 2:00 A.M. to go to a casino. Shaw was watching television when Defendant returned

at 5:15 A.M. and went to bed. Shaw further testified that the family owned one car at the

time—a white 1998 Plymouth Voyager minivan. At 7:30 A.M., according to their typical

practice on Saturday mornings, Shaw and the three children took the minivan to a park along

Alcy Road in South Memphis to participate in a church function. When Shaw left the

apartment, she saw that Defendant was still in the bed. Shaw and her children remained at

the park until 11:00 A.M., when they went to the house of Shaw’s grandmother in the Orange

Mound neighborhood. At some point during the day, Shaw, her children, and her

At trial, Defendant explained that he was not legally married to Shaw, despite referring to 8

her as his wife. Although Defendant was no longer living with Shaw, he had previously been with

her for seventeen years and fathered three children by her. At the time of trial, Shaw was living with

someone else but was discussing reconciliation with Defendant. 

Quinn conceded that he did not record his conversation with Shaw in his written case notes, 9

which indicated only that he had tried and failed to reach Shaw by telephone. Shaw, who used the

phone at her sister’s residence nearby as a contact number, testified that she neverspoke with Quinn

about the case. Her sister said that Quinn had called, but Shaw claimed that Quinn never answered

when Shaw tried to call him back.

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grandmother shopped at a Wal-Mart. Nothing in the record indicates that the Wal-Mart was

located in the vicinity of where the robbery took place, nor did Shaw testify that she

otherwise drove the minivan into the parking lot of that strip mall on July 29.

Leading up to the trial in September 2007, Shaw had called the police once in July and

again in August because of domestic disturbances with Defendant. In her trial testimony,

Shaw stated that she was not afraid of Defendant, he had not threatened her about testifying,

and he had not committed violence to compel her testimony. When asked to explain her calls

to the police, Shaw testified that she had called in August “to get [Defendant] some help for

his anger,” and previously called in July because she “was trying to keep from getting in

trouble.”

Defendant also testified on his own behalf, answering “no” when asked repeatedly

whether he had robbed the Yorkshire Cleaners on July 29. He further testified that, between

the hours of 8:00 and 11:00 A.M. on that day, he was home asleep in bed. He testified that

he had driven the white Plymouth minivan, which was registered in his name, to the Grand

Casino at 2:00 A.M. He returned at 5:15 A.M. and went to sleep. Although he testified that

his wife and children “normally” went to the park on Saturday morning, he did not remember

their leaving on July 29 because he was asleep at the time.

Defendant testified that he could remember his whereabouts on July 29 because his

birthday was the next day. When asked why he initially told Quinn that he was with his wife

and kids when the robbery occurred, Defendant testified that he “probably was confused” and

was “nervous, real nervous” while being questioned by the police. When asked on crossexamination, “So it didn’t matter when the robbery was committed, what day, what hour,

your standard excuse would have been I was at home with my wife and kids?,” Defendant

answered, “Right.”

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The jury convicted Defendant of a single count of robbery, a class C felony. See

Tenn. Code Ann. § 39-13-401 (2006). Classified as a Range III persistent offender,

Defendant was sentenced to twelve years in the Department of Corrections.

The State also asked Defendant what Quinn told him about the robbery during the 10

interview after Defendant’s arrest. During his response Defendant volunteered that his record only

included an offense for driving while a habitual motor vehicle offender, an “old dope charge,” and

“a few misdemeanors.” The trial court then held a jury-out hearing and ruled the State could ask

about Defendant’s nine prior felony convictions that the State had listed in a Notice of Enhancement

and Impeachment served on defense counsel before trial. See Tenn. R. Evid. 609(a)(3). When crossexamination resumed, Defendant testified that he had four convictions for driving while a habitual

motor vehicle offender, four convictions for drug offenses, and one conviction for larceny.

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Procedural Background

On the day of trial and before the court empaneled the jury, defense counsel orally

moved to suppress the contractor’s written statement of the tag number from the white

minivan leaving the strip mall parking lot immediately after the robbery. Defense counsel

argued that the tag number, if offered into evidence, would be inadmissible hearsay because

the contractor was not going to testify. In denying the motion and allowing the State to

introduce the tag number into evidence, the trial court explained:

If [Defendant’s] tag and his van w[ere] present at the scene . . . that’s just a

piece of circumstantial evidence . . . . And if [Polson]’s there witnessing the

van, directing the witness to write [the tag number] down and then takes it

because she’s too scared to write or too nervous to write it down, . . . she’s

subject to being cross-examined and the weight that the jury wants to give the

accuracy and so forth of that is a weight question . . . .

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In his motion for new trial, Defendant again objected to the tag number as

inadmissible hearsay. At the motion hearing defense counsel contended that the tag number

had come into evidence for the truth of the matter asserted—that is, “[the white van] was

[Defendant’s] car and therefore that was why he was at the scene.” The trial court rejected

Defendant’s argument that the tag number was presented as hearsay:

[Polson] didn’t testify to . . . the license number that the [contractor] wrote

down. All she did was testify, I told him to write something down. I watched

him write it down. He gave me the piece of paper. I gave the piece of paper

to the police officer. The police officer looked up that license number and it

led him to Mr. Franklin.

With specific reference to the testimony of Sergeant Williams and Officer Quinn, the trial

court again concluded that the tag number was not introduced for its truth:

They didn’t say they got the right tag number from the person. They said I did

research on the tag number that was in the file. I got a photo spread based

upon the research that I found and I went out and showed a photo spread to the

victim and she identified somebody.

Stated slightly differently, the trial court later explained, “if [Polson] directed somebody 11

to write something down, she watched them write it down, they immediately hand it to her, she

immediately hands it to the police, all of that is subject to cross-examination.”

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The trial court denied Defendant’s motion for new trial on all grounds.

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Defendant appealed his conviction. Defendant again argued that the trial court erred

in allowing the State to introduce the tag number as hearsay. For the first time, Defendant

also argued that the admission of the tag number violated his right to confrontation pursuant

to the federal and state constitutions. Defendant specifically contended the contractor’s

written statement was “testimonial” within the guidelines set forth by the United States

Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). If testimonial, the statement

was admitted in violation of Defendant’s right of confrontation because Defendant did not

have a prior opportunity to cross-examine the contractor. Id. at 68; see Davis v. Washington,

547 U.S. 813, 821 (2006).

The Court of Criminal Appeals determined that the written tag number was hearsay

because the trial court admitted the statement to prove what it asserted, that is, the tag

number belonged to the white van leaving the parking lotshortly after the Yorkshire Cleaners

robbery. In a single sentence, the court concluded that no hearsay exception applied. After

analyzing the Supreme Court’s reasoning in Crawford and Davis and considering the multifactor test that we recounted in State v. Lewis, 235 S.W.3d 136, 143 (Tenn. 2007) (citing

State v. Maclin, 183 S.W.3d 335, 349 (Tenn. 2006)), the court also held that the contractor’s

statement was testimonial,such that its admission violated Defendant’s confrontation rights.

Because Defendant established plain error affecting a substantial right, the court vacated

Defendant’s conviction and remanded for a new trial.

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We granted the State’s application for permission to appeal, which raises the lone

question of whether the contractor’s written identification of the white van’s tag number is

inadmissible testimonial hearsay.

The motion for new trial also challenged the sufficiency of the evidence and the 12

appropriateness of the sentence. These issues were also raised to and rejected by the Court of

Criminal Appeals. Neither issue is raised before this Court. 

After vacating the conviction based on the violation of Defendant’s confrontation rights, 13

the Court of Criminal Appeals went on to analyze and reject Defendant’s challenges to the

sufficiency of the evidence and his sentencing. Defendant also contended that the cumulative effect

of the trial court’s errors deprived him of the constitutional rights to due process and a jury trial. The

court deemed the cumulative error claim to be unsupported by argument and, therefore, waived. In

any event, the court pointed out that the grant of a new trial on confrontation grounds obviated the

cumulative error issue. 

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Standard of Review

Generally, the admissibility of evidence rests within the trial court’s sound discretion,

and the appellate court does not interfere with the exercise of that discretion unless a clear

abuse appears on the face of the record. Lewis, 235 S.W.3d at 141. A trial court abuses its

discretion only when it applies an incorrect legal standard or makes a ruling that is “‘illogical

or unreasonable and causes an injustice to the party complaining.’” Id. (quoting State v. Ruiz,

204 S.W.3d 772, 778 (Tenn. 2006)).

Whether the admission of hearsay statements violated a defendant’s confrontation

rights is, however, a pure question of law. Lilly v. Virginia, 527 U.S. 116, 125 (1999);

Lewis, 235 S.W.3d at 141-42. The proper application of that law to the trial court’s factual

findings is likewise a question of law, subject to de novo review. Lewis, 235 S.W.3d at 142.

ANALYSIS

The Confrontation Clause of the Sixth Amendment to the United States Constitution

directs, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. The right of confrontation is

fundamental and applies to the states through the Fourteenth Amendment. Pointer v. Texas,

380 U.S. 400, 403 (1965); State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008).

Furthermore, article I,section 9 of the Tennessee Constitution contains its own confrontation

provision: “[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the

witnesses face to face.” The Tennessee provision is phrased differently from the federal

provision. Nonetheless, while “[t]he ‘face-to-face’ language found in the Tennessee

Constitution has been held to impose a higher right than that found in the federal

constitution,” State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992), we have never found

evidence excluded under our own state constitution’s confrontation clause that was not also

excluded under the corresponding provision in the federal constitution, Lewis, 235 S.W.3d

at 144. Indeed, despite the differences in phrasing, “‘this Court has largely adopted the

standards used by the United States Supreme Court . . . in determining whether the Tennessee

constitutional right has been violated.’” Id. (quoting Maclin, 183 S.W.3d at 343) (alteration

in original).

Within the past decade, the Supreme Court’s standards for evaluating Confrontation

Clause violations have changed. In Crawford v. Washington, the Supreme Court held that,

“[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands . . .

unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68. Therefore,

unless the declarant is unavailable and the defendant had a prior opportunity to crossexamine the declarant, any testimonial statement of a witness absent from trial is

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inadmissible. Id. at 59; Corona v. State, 929 So. 2d 588, 594 (Fla. Dist. Ct. App. 2006); State

v. Mizenko, 127 P.3d 458, 460-61 (Mont. 2006). By contrast, “[w]here nontestimonial

hearsay is at issue,” the Crawford decision “afford[s] the States flexibility in their

development of hearsay law[.]” 541 U.S. at 68. In other words, as the Supreme Court

subsequently explained in Davis v. Washington, nontestimonial hearsay “is notsubject to the

Confrontation Clause.” 547 U.S. at 821. Accordingly, in the courts of this state, the

14

admissibility of a nontestimonial hearsay statement is governed by the Tennessee Rules of

Evidence. Lewis, 235 S.W.3d at 145.

Whether the Statement Is Hearsay

Up to this point in our post-Crawford jurisprudence, we have dealt with statements

that were undisputed hearsay. The present case is different, however, because the trial court

ruled that the written tag number was not hearsay, though the Court of Criminal Appeals

disagreed. As Crawford noted parenthetically, the Confrontation Clause “does not bar the

use of testimonial statements for purposes other than establishing the truth of the matter

asserted.” 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)); see also

Davis, 547 U.S. at 824 (confirming that the Confrontation Clause “applied only in the

testimonial context” in Supreme Court cases decided “[w]ell into the 20th century”).

Accordingly, since Crawford, federal and state courts alike have found no Confrontation

Clause violation where the out-of-court statement—whether testimonial or not—was

admitted for some purpose other than the truth of the matter asserted. See, e.g., United States

v. Warman, 578 F.3d 320, 346 (6th Cir. 2009); United States v. Jiminez, 564 F.3d 1280,

BeforeCrawford established “testimonial hearsay,” unavailability, and a prior opportunity 14

to cross-examine as the touchstones of Confrontation Clause analysis, the hearsay statement of an

unavailable declarant would be admissible where the statement had “adequate ‘indicia of

reliability.’” Ohio v. Roberts, 448 U.S. 56, 66 (1980). Those indicia included “fall[ing] within a

firmly rooted hearsay exception” or carrying “particularized guarantees of trustworthiness.” Id. In

the immediate aftermath of Crawford, we continued to apply the Roberts standard in determining

the admissibility of nontestimonial hearsay. See Maclin, 183 S.W.3d at 343, 353. 

Subsequently, Davis explained that nontestimonial statements were outside the scope of the

Confrontation Clause. 547 U.S. at 821. And, in a later case declining to apply Crawford

retroactivelyon collateral review in federal proceedings, the Supreme Court explicitlydeparted from

the Roberts framework in analyzing nontestimonial statements and explained that “[u]nder

Crawford, . . . the Confrontation Clause has no application to such statements and therefore permits

their admission even if they lack indicia of reliability.” Whorton v. Bockting, 549 U.S. 406, 420

(2007). Accordingly, at our next opportunity, we held that “when hearsayevidence is nontestimonial

and otherwise admissible under our Rules of Evidence, a separate analysis under Roberts is

unnecessary under either the federal or state constitutions.” Lewis, 235 S.W.3d at 145.

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1286-87 (11th Cir. 2009); State v. McGee, 284 S.W.3d 690, 701-02 (Mo. Ct. App. 2009);

Del Carmen Hernandez v. State, 273 S.W.3d 685, 688-89 (Tex. Crim. App. 2008).

Therefore, in deciding this case, before we address whether the written tag number

is “testimonial,” we must first satisfy ourselves that the statement is hearsay and thus

potentially eligible for Confrontation Clause protection. See United States v. Mendez, 514

F.3d 1035, 1043 (10th Cir. 2008). This point was contested in the trial court and on the

initial appeal. The State persuaded the trial court that the written tag number was not hearsay

and argued the same before the Court of Criminal Appeals. The Court of Criminal Appeals

rejected the State’s argument and held that the trial court violated the rule against hearsay

when it allowed the written tag number into evidence. On brief and at oral argument before

this Court, the State has reversed its prior position and now concedes that the statement was

hearsay. We accept the State’s concession. See Barron v. State Dep’t of Human Servs., 184

S.W.3d 219, 223 (Tenn. 2006) (stating that court is not bound to accept party’s concession

and may independently analyze the conceded issue).

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.

801(c). A written assertion counts as a “statement.” Id. 801(a). In this case, Polson told the

contractor standing nearby that she had been robbed and asked the contractor to observe the

tag number of the vehicle driven by the man whom she believed had just left the Yorkshire

Cleaners. The contractor, who was closer to the vehicle than she was, did so. The contractor

then came inside the business and wrote down the tag number for Polson. Accordingly, this

written statement asserts that the tag number belonged to the white minivan that the

contractor observed leaving the strip mall parking lot.

Sergeant Williams testified that Polson provided a tag number for the vehicle she said

belonged to the robber and that he included the tag number in his offense report. Officer

Quinn then testified that he saw the tag number in the offense report, researched that number,

and discovered that it was registered to a vehicle in Defendant’s name. Based on this

testimony, we conclude that the State introduced the contractor’s written statement for its

truth, that is, the tag number belonged to the white minivan in which the man who had

robbed the Yorkshire Cleaners left the scene. Since it was made out of court by a declarant

not available for cross-examination, it is hearsay.

Whether the Statement Is Testimonial

Having determined that the contractor’s statement was indeed hearsay, we now turn

to the “threshold question” of Confrontation Clause analysis: whether the statement is

“testimonial.” See United States v. Hinton, 423 F.3d 355, 358 (3d Cir. 2005). The United

-12-
States Supreme Court has defined “testimonial” only incrementally, hewing closely to the

specific facts of each case and refraining from comprehensive elaboration of what the term

means. In Crawford, the Supreme Court extensively traced the history of “the principal evil”

targeted by the Confrontation Clause: “the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence against the accused.” 541 U.S. at

50. The Court explained that the Confrontation Clause “applies to ‘witnesses’ against the

accused—in other words those who ‘bear testimony.’” Id. at 51 (quoting 2 Noah Webster,

An American Dictionary of the English Language (1828)). The Court in turn defined

testimony as a “‘solemn declaration or affirmation made for the purpose of establishing or

proving some fact.’” Id. (quoting Webster, supra). The Court explained that someone

making a formal accusation to government officials “bears testimony” in a way that someone

casually remarking to an acquaintance does not. Id.

After articulating several possible “formulations” of a testimonialstatement, the Court

ultimately concluded that the “testimonial” category “applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” Id. at 51-52, 68. That minimal definition was sufficient to decide Crawford,

where the declarant made the challenged hearsay statements in police custody, responding

to detectives’ questions while being considered as a possible suspect. Id. at 65. The

admission of those testimonial statements violated the petitioner’s Sixth Amendment rights

because there was no opportunity to cross-examine the declarant. Id. at 68.

In Davis, the Supreme Court was asked to “determine more precisely which police

interrogations produce testimony.” 547 U.S. at 822. The Court held that, in the context of

police interrogation, “[s]tatements are nontestimonial . . . under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police assistance to meet

an ongoing emergency.” Id. By contrast, statements made during interrogations are

testimonial “when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.” Id.

This “primary purpose” test in Davis was sufficient for the Court to decide the

companion cases, both domestic assaults. A 911 caller’s identification of the defendant was

a nontestimonial statement because it was “plainly a call for help against bona fide physical

threat” with a primary purpose “to enable police assistance to meet an ongoing emergency.”

15

Id. at 827-28. Unlike the formalized interrogation in Crawford, the declarant in Davis

described events as they were unfolding, faced an ongoing emergency, responded to

The Court treated the 911 operator as an agent of law enforcement and considered her 15

actions to be those of the police. Davis, 547 U.S. at 823 n.2.

-13-
questions designed to resolve the emergency, and provided “frantic answers” in a dangerous

setting void of any formality. Id. at 827.

By contrast, in the “much easier” companion case of Hammon v. Indiana, the Court

held that the victim gave testimonial responses to police questioning, including a written

statement on a battery affidavit, after the disturbance had ended and while her husbandassailant was kept by another officer in a separate room. Id. at 829-30. Instead of “a cry for

help []or the provision of information enabling officers immediately to end a threatening

situation,” an objective perspective established that “the primary . . . purpose of the

interrogation was to investigate a possible crime.” Id. at 830, 832. The Court specifically

distinguished statements “seeking aid” that “showed immediacy” from a “narrative of past

events . . . delivered at some remove in time from the danger.” Id. at 831-32.

16

To this point, we have likewise wrestled with the definition of “testimonial” primarily

in the context of statements made to law enforcement or its agents. We began with State v.

Maclin, a consolidated pair of appeals that we decided after Crawford but before the

Supreme Court issued an opinion in Davis. Carefully reading Crawford, we discerned that

“testimony involves a formal or official statement made or elicited with a purpose of being

introduced at a criminal trial.” 183 S.W.3d at 346. While noting that the presence or absence

of an oath was not dispositive, we also rejected a per se approach that would have classified

every accusatory statement to a police officer during an investigation as “testimonial.” Id.

at 346, 348. Borrowing language from Crawford, we decided that the “overarching

consideration” was “whether the statement was made ‘under circumstances which would lead

an objective witness reasonably to believe that the statement would be available for use at

a later trial.’” Id. at 349 (quoting Crawford, 541 U.S. at 52). We articulated the following

list of non-exclusive factorsto aid in deciding whether a particularstatement is “testimonial”:

Since Davis, the United States Supreme Court has addressed the Confrontation Clause in 16

four other decisions, none of which requires a detailed analysis to resolve the case presently before

us. In Whorton v. Bockting, the Supreme Court held that Crawford did not apply retroactively to

cases already final on direct review when Crawford was decided. 549 U.S. at 409. By contrast,

Danforth v. Minnesota held that states retained the discretion to apply new rules of criminal

procedure retroactively in their own post-conviction proceedings. 552 U.S. 264, 266 (2008). Giles

v. California delineated the scope of the “forfeiture by wrongdoing” exception to the defendant’s

right of confrontation. — U.S. —, 128 S. Ct. 2678, 2693 (2008). Finally, Melendez-Diaz v.

Massachusetts, a “rather straightforward application” of Crawford, held that sworn affidavits

(denominated as “certificates of analysis”) showing the results of forensic tests performed on cocaine

bags seized during the defendant’s arrest were testimonial statements, and the defendant was entitled

to an opportunity to cross-examine the analysts who authored the affidavits. — U.S. —, 129 S. Ct.

2527, 2532 (2009).

-14-
(1) whether the declarant was a victim or an observer; (2) whether contact was

initiated by the declarant or by law-enforcement officials; (3) the degree of

formality attending the circumstances in which the statement was made; (4)

whether the statement was given in response to questioning, whether the

questioning was structured, and the scope of such questioning; (5) whether the

statement was recorded (either in writing or by electronic means); (6) the

declarant’s purpose in making the statements; (7) the officer’s purpose in

speaking with the declarant; and (8) whether an objective declarant under the

circumstances would believe that the statements would be used at a trial.

Id.

Applied to the facts in Maclin, we described as “testimonial” the victim’s “detailed

narrative of the defendant’s assault” in response to police officers’ general question whether

the victim was okay. Id. at 352. Our analysis emphasized that the victim had initiated

contact with police by calling 911, was no longer in immediate danger when police

responded, and included “extraordinary detail” in her response. Id. By contrast, in the

“much easier” companion case of State v. Anderson, we held that a group of teenage

witnesses offered nontestimonial statements when they flagged down a police officer and,

upon being asked “What’s going on?,” pointed to a building sounding a burglar alarm and

gave a physical description of the intruder. Id. at 353. We concluded that the witnesses’

statements “merely intended to direct police intervention to a crime in progress” without

anticipating their statements would be used at trial. Id. Likewise, we concluded that the

officer’s intent “was not to develop evidence for prosecution or trial, but merely to determine

what was happening and what type of police intervention was needed.” Id. We emphasized

the officer’s “preliminary investigational mode” in trying to determine the source and cause

of the burglar alarm, the witnesses’ informal manner in flagging down the officer, and the

general nature of the officer’s question to the witnesses. Id.

With the benefit of the Supreme Court’s decision in Davis, we returned to the

Confrontation Clause in State v. Lewis. In that case, the defendant was convicted for

facilitation of the attempted especially aggravated robbery and criminally negligent homicide

of the owner of an antiques store. At trial, the proof established that, when employees of the

business next door heard noises in the antiques store and went to investigate, the owner cried

out for help, asking them to call 911 and explaining that he had been shot. A police officer

arrived at the scene and asked the owner questions about what had happened. After

paramedics arrived and began treating the owner’s wounds, he told the officer that “the

lady’s information is on the desk.” When the officer asked which “lady” the victim meant,

the victim replied, “the lady with the vases.” When asked whether this lady was connected

to the crime, the victim responded, “I know she is.” The officer found a paper on the desk

-15-
counter with the defendant’s name, driver’s license number, and the words “two vases.”

Prior to the crime, the defendant had been in negotiations to sell two vases to the owner. 235

S.W.3d at 139-40.

On appeal, the defendant challenged the admission of the victim’s statement “I know

she is” as a violation of the Confrontation Clause. Id. at 146. We recited language from

Davis regarding the distinctions between testimonial and nontestimonial statements made to

law enforcement, id. at 143-44, and regarding the factual distinctions among the contexts

surrounding the statements made in Crawford, Davis, and Hammon, id. at 146-47. We held

that the statement “I know she is” qualified as testimonial. Id. at 147. Our analysis

emphasized that the assailant had left the store, the victim had spoken with the employees

from the business next door, and the 911 call had already taken place. Id. Although still at

the crime scene, the victim was responding to inquiries by investigating officers. Id. The

statement was a summary of past criminal events, rather than a description of an ongoing

emergency. Id.

17

In our most recent decision addressing the definition of “testimonial,” we

acknowledged that the Supreme Court’s decision in Davis “abrogated” our prior decision in

Maclin because the Court adopted a “primary purpose test . . . requir[ing] courts to examine

the context in which a statement is given.” Cannon, 254 S.W.3d at 302. We then held that

“[s]tatements are testimonial if the primary purpose of the statement is to establish or to

prove past events potentially relevant to later criminal prosecutions.” Id. at 303.

In Cannon, we applied the primary purpose test to four sets of statements made by a

rape victim. First, we held that statements to emergency room personnel, as memorialized

in the victim’s medical records, were nontestimonial because (1) Crawford cited business

records as an example of nontestimonial statements and (2) the primary purpose of the

statements was medical diagnosis and treatment. Id. (citing Crawford, 541 U.S. at 56).

Second, statements to the police officer who responded to the victim’s 911 call were

testimonial because there was no ongoing emergency, and the primary purposes of the

victim’s statements “were to describe and to establish a past crime” rather than to make a

“cry for help.” Id. at 304 (internal quotation omitted). Third, the victim’s statements to a

detective at the emergency room were testimonial because the emergency room personnel

had already stabilized the victim, and the primary purpose of both the detective and the

victim was the exchange of information about a past crime. Id.

Although we classified the statement as testimonial, we nonetheless sustained the trial 17

court’s admission of the statement into evidence because it was a dying declaration. Joining every

other jurisdiction that had decided the issue, we held that the dying declaration hearsay exception

“survives the mandate of Crawford regardless of its testimonial nature.” Lewis, 235 S.W.3d at 148.

-16-
Fourth and finally, we held that the victim’s statements to the sexual assault nurse

examiner were testimonial. Id. at 305. We considered these statements to raise a question

of first impression explicitly unresolved by Davis—“[t]he proper classification of out-ofcourt statements to persons other than law enforcement personnel”—although we noted that

the Supreme Court had treated the 911 operator in Davis as an agent of the police. Id. at 304.

We concluded that the primary purpose of the nurse’s interrogation of the victim was to

establish past events relevant to a later prosecution. Id. at 305. We emphasized the nurse’s

testimony concerning her law enforcement training on how to ask questions and collect

evidence; her description of the “investigation” and “forensic examination” that she

performed on the victim; the detective’s participation in the questioning; the delay of the

questioning until after emergency room personnel examined the victim; and the policy of

both the police department and the hospital to have a sexual assault nurse examiner speak

with each victim of a sex-related crime. Id.

18

Even more specifically than the statements to the sexual assault nurse examiner in

Cannon, the case presently before us raises a question that the Supreme Court has explicitly

left undecided: “whether and when statements made to someone other than law enforcement

personnel are ‘testimonial.’” Davis, 547 U.S. at 823 n.2. Unlike Cannon, neither the victim

nor the contractor in this case had any association or agency relationship with law

enforcement. Instead, this case presents an exchange between two truly private parties.

Some of the existing law supports the proposition that conversations between private

parties are categorically nontestimonial. In Crawford, while discussing the scope of the Sixth

Amendment, the Supreme Court explained that “[a]n off-hand, overheard remark . . . bears

little resemblance to the civil-law abuses the Confrontation Clause targeted,” in contrast with

“ex parte examinations [by government officials] . . . the Framers certainly would not have

condoned.” 541 U.S. at 51. Continuing to the definition of “testimony,” the Court drew

another distinction: “[a]n accuser who makes a formalstatement to government officers bears

testimony in a sense that a person who makes a casual remark to an acquaintance does not.”

Id. The Court repeated this distinction in Davis. 547 U.S. at 824.

Other language in Davis also suggests that conversations between private parties

cannot be testimonial. In discussing the history of the Supreme Court’s Confrontation Clause

jurisprudence, Davis cited a case involving the admissibility of a conversation between

fellow prisoners as an example of “statements at issue [that] were clearly nontestimonial.”

Although the testimonial statements were improperly admitted without an opportunity for 18

the defendant to cross-examine the victim, we did not conduct a harmless-error analysis because we

had already held that the defendant was entitled to a new trial on unrelated grounds. Cannon, 254

S.W.3d at 307.

-17-
Id. at 825 (citing Dutton v. Evans, 400 U.S. 74, 87-89 (1970)). Davis also stated

unequivocally that “formality is indeed essential to testimonial utterance,” id. at 830 n.5, and

an exchange between two private parties will often lack the requisite formality when neither

party has any association or agency relationship with law enforcement. While Davis

cautioned that its analysis of police interrogations was “not to imply, however, that

statements made in the absence of any interrogation are necessarily nontestimonial,” id. at

822 n.1, some courts have speculated whether this language only “le[aves] open the question

of whether statements made to government officials other than law enforcement are

testimonial,” rather than holding open the door for classifying any statements to private

parties as testimonial, see State v. Brown, 173 P.3d 612, 632 (Kan. 2007).

Based on the language from Crawford and Davis, some courts have categorically held

that statements between private parties—or, at least, specific types of such statements—are

not testimonial. Today, however, we do not hold that statements between private parties

19

unconnected to law enforcement,such as the exchange between the victim and the contractor

in this case, are per se nontestimonial and thus exempt from Confrontation Clause scrutiny.

The United States Supreme Court has not expressly decided this issue, and, much like that

Court, we will continue to define which statements are “testimonial” only to the extent

necessary to resolve the case before us.

20

See People v. R.F., 825 N.E.2d 287, 295 (Ill. App. Ct. 2005) (“Crawford applies only to 19

statements made to governmental officials; Crawford does not apply to statements made to

nongovernmental personnel . . . .”); State v. Calhoun, 657 S.E.2d 424, 427 (N.C. Ct. App. 2008)

(holding statement to be nontestimonial because it was made to a private citizen); Garcia v. State,

246 S.W.3d 121, 133 (Tex. App. 2007) (holding that statements to friends, co-workers, and divorce

counsel were nontestimonial because they did not fall within the “minimum” categories of

testimonial statements enumerated in Crawford). Other courts have strongly intimated the existence

of such a categorical rule. See, e.g., State v. Feliciano, 901 A.2d 631, 642 (R.I. 2006) (discussing

a “casual remark to an acquaintance” and citing cases variously involving friends, co-workers, and

co-conspirators); State v. Ladner, 644 S.E.2d 684, 689-90 (S.C. 2007) (collecting cases holding that

spontaneous utterances by small children to parents or other close relatives are nontestimonial); cf.

Seely v. State, 282 S.W.3d 778, 787 (Ark. 2008) (treating statements made to nonofficials as

“presumptively nontestimonial,” although the presumption is rebuttable).

As the Supreme Court of Kansas has aptly summarized the state of the law: 20

In light of the ambiguities and uncertainties of the Crawford and

Davis decisions, the unsettled nature of the case law, and the continuing debate

between members of the United States Supreme Court and among legal scholars as

to the efficacy of the testimonial standard and as to what test formulation best

(continued...)

-18-
Drawing from cases involving police interrogations, the law is clear that statements

“‘are testimonial when the circumstances objectively indicate that there is no . . . ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.’” Cannon, 254 S.W.3d at 302

(quoting Davis, 547 U.S. at 822). To account for the absence of law enforcement in this

case, we merely need to replace “interrogation” with “dialogue,” “exchange,” or a similarly

neutral term. Conversely, the statement is nontestimonial if the primary purpose issomething

other than establishing or proving past events potentially relevant to prosecution, such as

providing or enabling assistance to resolve an ongoing emergency. See id. An objective

standard, focusing on the perspective of a reasonable person, governs the determination of

the statement’s primary purpose. Davis, 547 U.S. at 822; Seely v. State, 282 S.W.3d 778,

787 (Ark. 2008).

In the context of statements obtained through questions and answers, courts have

grappled with the issue of whether the declarant’s or the questioner’s intent is the proper

focus in determining the primary purpose. Some courts have focused exclusively on the

declarant’s intent. E.g., Cuyuch v. State, 667 S.E.2d 85, 89-90 (Ga. 2008). These courts

21

cite language from Davis stating that “it is in the final analysis the declarant’s statements, not

the interrogator’s questions, that the Confrontation Clause requires us to evaluate.” 547 U.S.

at 822 n.1. Other courts consider both the declarant’s and the questioner’s intent in

determining the primary purpose. E.g., Seely, 282 S.W.3d at 787; Brown, 173 P.3d at 631;

State ex rel. Juvenile Dep’t v. S.P. (In re S.P.), 215 P.3d 847, 865 (Or. 2009);

Commonwealth v. Allshouse, 924 A.2d 1215, 1221 (Pa. Super. Ct. 2007). These courts point

to the holding in Davis that statements are testimonial when “the primary purpose of the

(...continued) 20

determines when that standard has been met, we will continue to approach the issue

broadly under the possibility that the Supreme Court may intend for conversations

between a declarant and a nonofficial to be testimonial if other aspects of the test

stated in the decisions are met.

Brown, 173 P.3d at 633.

Prior to the Supreme Court’s decision in Davis, evaluating the statement from the 21

perspective of a reasonable person in the declarant’s position was the prevailing view. See People

v. Vigil, 127 P.3d 916, 925 (Colo. 2006) (collecting cases). In the wake of Crawford, courts noted

that two of its three suggested formulations for the definition of testimonial statements focused on

the declarant’s perspective: “pretrial statements that declarants would reasonably expect to be used

prosecutorially” and “statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later trial.” See 541

U.S. at 52 (internal quotations from briefs omitted). 

-19-
interrogation is to establish or prove past events potentially relevant to later criminal

prosecution.” 547 U.S. at 822. Because different passages in Davis can be read to consider

either the declarant’s or the questioner’s intent, these courts incorporate both perspectives

into their objective analysis of the statement’s primary purpose. Still other courts have

established different tests depending on context. At least one jurisdiction considers the

questioner’s intent to be paramount when the statements result from police questioning, but

the declarant’s intent is paramount when law enforcement is not involved in the questioning.

E.g., People v. Stechly, 870 N.E.2d 333, 357, 360 (Ill. 2007). This approach emphasizes that

Davis only dealt with responses to police questioning and refrained from discussing other

types of statements. Id. at 359. When “supplying information in response to direct police

questioning, the declarant is rarely ‘in the driver’s seat,’” thus warranting a different focus

in such cases. Id.

We believe that considering the intent both of a reasonable person in the declarant’s

position and of a reasonable person in the questioner’s position is the approach most faithful

to the Supreme Court’s decisions in Crawford and Davis and most consistent with our

previous applications of those precedents. By making repeated reference to the primary

purpose of the interrogation, Davisincorporatesthe questioner’sintent into the determination

of whether a statement is testimonial. However, Davis also instructs us to evaluate the

declarant’s statements, and we cannot ignore the prior language in Crawford regarding the

reasonable expectations of the declarant concerning the subsequent use of the statement for

prosecution and trial. Given the present state of the law and the limited number of contexts

in which the Supreme Court has defined “testimonial” statements, we are reluctant to make

an affirmative decision to analyze the question from an entirely different perspective when

law enforcement is not involved.

Objectively considering the statement from both the declarant’s and questioner’s

perspectives comports with the way that we have analyzed these questions in prior cases. In

Maclin, Lewis, and Cannon, we thoroughly considered all the surrounding circumstances in

making case-by-case determinations whether a particular statement was “testimonial.” In

Maclin, the sixth factor in our non-exclusive list was “the declarant’s purpose in making the

statements,” and the seventh factor was “the officer’s purpose in speaking with the

22

declarant.” 183 S.W.3d at 349 (footnote added). In determining whether an ongoing

emergency existed in Lewis, we noted the victim-declarant’s purpose in making the

statements—to describe past events—and the officers’ purpose in speaking with the

victim—to investigate a crime after the perpetrator had left the scene. 235 S.W.3d at 147.

We did the same in Cannon, and what makes that case particularly noteworthy is the presence

For cases not involving law enforcement, we can readily substitute “officer’s” with 22

“questioner’s” or a similarly neutral term.

-20-
of the sexual assault nurse, who was, at least nominally,someone other than law enforcement

personnel. 254 S.W.3d at 304-05. We examined at length the primary purpose of her

questioning the victim-declarant. Id. at 305.

We believe the multi-factor test that we first articulated in Maclin and repeated in

Lewis remains relevant in determining whether the statement is “testimonial.” Such factors

as the identity of the declarant, the formality of the surrounding circumstances, the structure

and extent of the questioning, et al. may very well bear on the ultimate, decisive inquiry: an

objective determination of the primary purpose of the statement. We emphasize that the

factors are “non-exhaustive,” Lewis, 235 S.W.3d at 143, and allow for consideration of

additional factual details specific to a particular case. Lower courts ought not apply the

factors mechanically. See United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007)

(“[T]he Crawford analysis is contextual, rather than subject to mathematical application of

bright line thresholds.”). Instead, courts should consider the factors where helpful in

assessing “if the primary purpose of the statement is to establish or to prove past events

potentially relevant to later criminal prosecutions,” rather than to resolve an ongoing

emergency or for some other purpose. Cannon, 254 S.W.3d at 303; see Davis, 547 U.S. at

822.

The Court of Criminal Appeals considered the Lewis factors and concluded that the

contractor’s statement of the written tag number was testimonial. The court opined that,

under the circumstances, an objective witness would have reasonably believed that his

statement would be available for use at trial. The contractor was an observer with whom

Polson initiated contact to obtain identifying information about the car being driven away by

the man whom she believed had robbed the store. The contractor walked over, observed the

answer to Polson’s question, and then returned and wrote down his response. Ultimately, the

intermediate court concluded that the contractor did not make the statement to assist with an

emergency because the emergency had already passed. Instead, the court held that the

contractor made the written statement “‘to establish or prove past events potentially relevant

to later criminal prosecution.’” State v. Franklin, No. W2007-02772-CCA-R3-CD, 2009 WL

29893, at *8-9 (Tenn. Crim. App. Jan. 5, 2009) (quoting Davis, 547 U.S. at 822).

Accordingly, the court held that the statement was testimonial, and, because Defendant had

no opportunity to cross-examine the contractor, its admission violated his Confrontation

Clause rights. We disagree.

Based on our review of the facts, we conclude that the contractor’s primary purpose

for making the statement was to respond to the victim’s cry for help and assist with an

ongoing emergency. Polson exited the store, got the contractor’s attention, and, in quick

succession, informed him that she had been robbed and asked him to get the tag number of

the vehicle she saw leaving the parking lot. Polson then saw the contractor lean over and

-21-
observe the tag number as the minivan drove by. Rather than providing a description of past

events that had occurred well beforehand, the contractor’s written statement memorialized

events that he observed as they were actually happening. Although Polson initiated contact

23

with the contractor, the surrounding context reflects a total absence of the formality and

solemnity a reasonable person would associate with the kind of questioning that produces

testimonial statements. Polson’s “questioning” lacked the bare modicum of structure and

was limited in scope to a single issue: the observation of a tag number that the contractor

could see but she could not.

Under these circumstances, we conclude that the contractor was simply responding

to a plea for help from a distressed individual in need of assistance. An employee from the

business next door to his job site claimed that she was robbed and asked him to observe a tag

number of a vehicle belonging to a man who was leaving the premises. In the heat of that

moment, a reasonable person in the contractor’s position would have had very little time to

think. He was merely providing requested assistance. The fact that the tag number became

relevant to a later prosecution does not automatically make the tag number “testimonial.”

See Mendez, 514 F.3d at 1046.

Even after the actual crime has ended, the emergency may continue as long as the

perpetrator might be found in the vicinity. See United States v. Arnold, 486 F.3d 177, 190

(6th Cir. 2007); People v. Osorio, 81 Cal. Rptr. 3d 167, 176 (Cal. Ct. App. 2008), review

denied (Cal. Oct. 28, 2008). In this case, although the robbery had concluded before Polson

first spoke to the contractor, we believe that the emergency continued at least until the

contractor wrote down the tag number. Polson testified that, based on the threat to “blow

[her] ass off” if she did not hand over the business’s money, she believed that the perpetrator

was armed. Cf. State ex rel. J.A., 949 A.2d 790, 804 n.14 (N.J. 2008) (collecting cases,

including Arnold, for the proposition that “after a shooting or an offense involving a gun, the

immediate threat of the armed suspect returning to the scene constitutes an ongoing

emergency”). Furthermore, after telling her to count to ten, the perpetrator did not leave the

store immediately but rather waited until Polson had nearly completed her count. Polson

admitted that she “took a chance” by heading out into the parking lot so quickly after she

We decline to convert the contractor’s summary of events as they were actually happening 23

into a description of past events merely because some negligible amount of time passed between the

contractor’s personal observation of the tag number in the parking lot and his writing down the

number on the sheet of paper inside the cleaners. The outcome of the case does not depend on

whether the contractor happened to have pencil and paper on hand as the minivan drove by. Based

on Polson’s testimony, the primary purpose for which the contractor wrote down the tag number had

nothing to do with recording proof for prosecution. Instead, he wrote down the number simply

because Polson’s hand was shaking so badly that she could not write it herself. 

-22-
heard the dinging sound at the front door. Therefore, when Polson got the contractor’s

attention and asked him to write down the tag number while the perpetrator of the robbery

was in the parking lot just outside the store, a reasonable person in her position would have

thought that the emergency was ongoing and she remained in harm’s way. For such a

reasonable person preoccupied with obtaining help for an ongoing emergency, the primary

purpose of asking for the tag number would not be establishing or proving past events for the

benefit of a later criminal prosecution, but to assist in capturing the perpetrator.

Because these federal constitutional principles are frequently litigated in other courts,

we consider the decisions of other jurisdictions concerning statements made in comparable

factual circumstances. These decisions indicate a growing consensus that statements

establishing the identity of the perpetrator are nontestimonial when made in informalsettings

during the immediate aftermath of a crime.

In State v. Calhoun, a woman arrived home at the same time a police officer pulled

up in response to a call regarding shots fired in the vicinity. 657 S.E.2d 424, 425 (N.C. Ct.

App. 2008), appeal denied, 666 S.E.2d 651 (N.C. 2008). The woman and the officer entered

the home to find the victim on the floor. When the woman asked the victim who had shot

him, the victim identified two individuals by their nicknames. Then, when the woman asked

the victim to squeeze her hand to confirm that these were the nicknames of the shooters, the

victim did so. The officer observed and recorded the identification. Id. While the court held

that the statement was nontestimonial because it was made to a private citizen, the court also

went on to reason that the statement would have been nontestimonial even if the victim had

communicated directly to the officer. Id. at 427. The court emphasized that, in an

interrogation with the primary purpose of enabling police assistance to deal with an ongoing

emergency, permissible questions may “‘establish the identity of the assailant, so that the

dispatched officers might know whether they would be encountering a violent felon.’” Id.

(quoting Davis, 547 U.S. at 827). Therefore, identity-establishing responses amidst an

ongoing emergency are nontestimonial when the victim responds to a private citizen’s

request for identification. If such identity-establishing responses are nontestimonial when

the victim responds to a private citizen’s question, then a similar result should obtain during

an ongoing emergency when a private citizen responds to the victim’s question.

The contextsurrounding these identity-establishing responses may provide additional

reasons for finding them nontestimonial. In State v. Slater, two men were approached by a

victim “walking down the street at a fast pace crying and screaming.” 939 A.2d 1105, 1114

(Conn. 2008), cert. denied, 128 S. Ct. 2885 (2008). When the men asked what was wrong and

whether they could help, the victim stated that “‘a black male with a big knife just raped

her.’” Id. The men took the victim inside and called the police. Noting that the absence of

law enforcement was not dispositive, the court held that the statements were nontestimonial

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because the victim “clearly was seeking aid” and the men responded with “no indication that

their primary purpose was to do anything but to aid her.” Id. Furthermore, the surrounding

circumstances lacked “any degree of formality, solemnity, or reflection.” Id. at 1114-15. As

compared to our case, Polson was clearly seeking aid when she asked the contractor for the

minivan’s tag number, and there is no indication that the contractor had any primary purpose

besides helping Polson. Where the scene was likewise devoid of formalities, we see no

meaningful distinction in the facts that Polson sought help by asking a question and the

contractor provided that help by obtaining the information that Polson asked for.

Similar analysis led the Brown court to conclude that, minutes after a shooting, when

one witness asked another emotionally distraught bystander what was wrong, the second

bystander gave a nontestimonial response by saying, “That’s my cousin. They said Lovey

shot him.” 173 P.3d at 621, 635. The court reasoned that the statement was made from one

bystander to another, outside of law enforcement’s hearing. Id. at 634. The fact that one

bystander “was clearly shaken by the events and the scene” tended to “obviat[e] any

implication that [the questioning bystander’s] inquiry was to accuse for purposes of criminal

prosecution” and “weigh[ed] toward a conclusion that the statement, although accusatory,

was not made with that purpose in mind.” Id. Again, the court noted the absence of “any of

the formalities and procedures otherwise associated with testimonial hearsay.” Id. at 635.

Here, Polson admitted that she was shaken by the robbery, weighing against the conclusion

that her request for the tag number or the contractor’s response was intended for the purpose

of criminal prosecution.

Indeed, if the questioning issufficiently informal,such identity-establishing responses

have been held nontestimonial even when they are made to law enforcement. In Osorio, a

police sergeant arrived on the scene of a burning building to establish traffic control for the

fire department. 81 Cal. Rptr. 3d at 175. A firefighter directed the sergeant to a victim in

a nearby apartment with a slash injury and apparently in shock. In an exchange that lasted

less than two minutes, the sergeant asked the victim what had happened and obtained a

description of the victim’s assailant, which he broadcast over the police radio. Id. at 175-76.

The appellate court held that the trial court properly allowed the individual’s responses to

“[p]reliminary questions asked at the scene of a crime shortly after it ha[d] occurred” in an

“unstructured interaction” that “bore none of the earmarks of a police interrogation.” Id. at

176 (internal quotation omitted). In the case before us, we have a response to one

preliminary question asked at a crime scene shortly after the crime occurred, in a setting that

was even less formal because law enforcement had not yet arrived on the scene. Again, the

fact that the victim asked the question does nothing in our mind to change the responsive

statement’s nontestimonial status.

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Finally, these kinds of identity-establishing statements have been admitted into

evidence where the declarant providesthem directly to the victim without prompting. In State

v. Chavez, the owner of a burglarized car received a note from a witness containing a

description of the burglar and the license plate number of the burglar’s vehicle. 192 P.3d

1226, 1227 (N.M. Ct. App. 2008), cert. denied, 195 P.3d 1266 (N.M. 2008). The defendant

objected that the description of the burglar (though not the license plate number) was

testimonial hearsay but was overruled by the trial court. Id. at 1228. Sustaining defendant’s

conviction, the appellate court reasoned: “[t]he note was intended for the victim, and the use

to which it would be put was solely at the victim’s discretion. It was not solicited by or given

to the police by the declarant, whose only apparent motive was helping the victim ascertain

the identity of the thief.” Id. at 1229. We have considered a similar analysis in this case,

where the contractor wrote down the tag number to help Polson ascertain the identity of the

Yorkshire Cleaners robber and gave the number to Polson to use entirely at her discretion.

Although Polson solicited the statement and ultimately gave it to the police, the Chavez court

based its holding on the facts that the police neither solicited the challenged statement nor

received it directly from the declarant—facts which are likewise true in this case.

Having considered the factors in our non-exclusive test, all the surrounding

circumstances, and factually similar cases decided by other courts, we hold that the written

license tag number of a vehicle leaving the parking lot shortly after the robbery occurred and

provided by a civilian bystander to the victim was a nontestimonial statement with the

primary purpose of responding to a cry for help during an ongoing emergency. The primary

purpose was not to establish or prove past events of potential relevance to subsequent

criminal prosecution. Therefore, the statement was nontestimonial hearsay, and its admission

into evidence did not violate Defendant’s state and federal constitutional rights of

confrontation.

Whether the Statement Is Admissible Under the Tennessee Rules of Evidence

Because the written tag number did not violate Defendant’s confrontation rights, the

Tennessee Rules of Evidence govern its admissibility. Lewis, 235 S.W.3d at 145. The

24

Although we review the statement’s admissibility under the Rules of Evidence after

24

completing the Confrontation Clause analysis, we emphasize that trial courts are not bound to follow

the same sequence when confronted with potentially testimonial statements. Indeed, trial courts

understandably may want first to determine whether a hearsay statement falls within one of the

applicable exceptions or exclusions. See, e.g., Wright v. State, 916 N.E.2d 269, 275-76 (Ind. Ct.

App. 2009); Commonwealth v. Hurley, 913 N.E.2d 850, 860 (Mass. 2009). In particular, if the

statement is inadmissible hearsay, then it will not come in under our own Rules of Evidence,

(continued...)

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statement is hearsay and thus “not admissible except as provided by these rules or otherwise

by law.” Tenn. R. Evid. 802. In a single sentence, the Court of Criminal Appeals stated that

it had considered the hearsay exceptions set forth in our Rules of Evidence and concluded

that none applied to the written tag number.

Before this Court, the State maintains that the statement is admissible under the

excited utterance exception to the rule against hearsay. Pursuant to Rule of Evidence

25

803(2), the hearsay rule does not exclude “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event

or condition.” We have interpreted the rule to set forth three requirements for a statement

to meet the excited utterance exception. Cf. Neil P. Cohen et al., Tennessee Law of Evidence

§ 8.07[3], at 8-75 to 8-77 (5th ed. 2005). The first requirement is “a startling event or

condition” that “‘suspend[s] the normal, reflective thought processes of the declarant.’” State

v. Stout, 46 S.W.3d 689, 699 (Tenn. 2001) (quoting State v. Gordon, 952 S.W.2d 817, 820

(Tenn. 1997)) (other internal quotations omitted). Second, the statement must “relate to”

26

the startling event or condition. Id. This broad requirement offers “considerable leeway”

such that “the statement may describe all or part of the event or condition, or deal with the

effect or impact of that event or condition.” Gordon, 952 S.W.2d at 820 (quotation omitted);

Cohen et al., § 8.07[3][c], at 8-76. The third and final requirement dictates that the declarant

make the statement while “under the stress or excitement from the event or condition.”

Stout, 46 S.W.3d at 699-700. This requirement considers a variety of factors, including the

interval of time between the startling event and the statement. Id. at 700.

27

(...continued) 24

regardless of whether the statement is “testimonial.” Structuring the analysis this way has the

salutary effect of resolving admissibility on nonconstitutional grounds that make it unnecessary to

reach the constitutional question. See State v. Taylor, 70 S.W.3d 717, 720-21 (Tenn. 2002)

(discussing presumption against deciding constitutional questions); see generally State ex rel. J.A.,

949 A.2d at 806-809 (Rivera-Soto, J., dissenting).

We previously confronted the question of whether alleged “excited utterances” can be 25

classified as testimonial and refused to adopt a per se rule exempting all excited utterances from the

category of testimonial hearsay. Maclin, 183 S.W.3d at 351. At the same time, we also rejected an

approach that refused to consider the excited nature of the utterance as a factor in determining

whether the statement is testimonial. Id.

Stout was abrogated by statute on other grounds as stated in State v. Odom, 137 S.W.3d 26

572, 580-81 (Tenn. 2004).

Other factors potentiallyrelevant to deciding whetherthe declarant made a statement under 27

(continued...)

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Underlying the excited utterance exception is the theory that “circumstances may

produce a condition of excitement which temporarily stills the capacity of reflection and

produces utterances free of consciousfabrication.” State v. Land, 34 S.W.3d 516, 528 (Tenn.

Crim. App. 2000). We have also recognized that a statement made while the memory is fresh

in the declarant’s mind may be more accurate than a later description of the event in court.

Gordon, 952 S.W.2d at 819-20 (quoting Neil P. Cohen et al., Tennessee Law of Evidence §

803(2).1, at 532 (3d ed. 1995)). We have described the “ultimate test” of whether a

statement meets the excited-utterance standard as “spontaneity and logical relation to the

main event and where an act or declaration springs out of the transaction while the parties

are still laboring under the excitement or strain of the circumstances and at a time so near it

as to preclude the idea of deliberation and fabrication.” State v. Smith, 857 S.W.2d 1, 9

28

(Tenn. 1993).

In this case, we conclude that the recording and delivery of the written tag number

meet the requirements of an excited utterance. First, although the “startling event” is

typically the act giving rise to the underlying legal controversy—in this case, the Yorkshire

Cleaners robbery—“a subsequent startling event or condition which is related to the prior

event can [also] produce an excited utterance.” Gordon, 952 S.W.2d at 820. To be precise,

the startling event for the contractor was not the robbery itself, but instead Polson’s sudden

departure from the cleaners and announcement to the contractor that she had been robbed by

the man who had just left the cleaners. This announcement was manifestly related to the

robbery itself. The evidence supports the conclusion that Polson made this announcement

while in an excited state. She admitted at trial that she was “a little shaky” when she exited

the store, particularly because it was the first time she had been robbed. Sergeant Williams

further testified that, even when he arrived on the scene minutes later, Polson was still “very

upset and scared.” When a person in this condition announces that they have been robbed,

that announcement is a “startling event” sufficient to suspend the normal, reflective thought

processes of the person who hears it.

(...continued) 27

stress or excitement include “‘the nature and seriousness of the event or condition; the appearance,

behavior, outlook, and circumstances of the declarant, including such characteristics as age and

physical or mental condition; and the contents of the statement itself.’” Stout, 46 S.W.3d at 700

(quoting Gordon, 952 S.W.2d at 820).

In addition to the three requirements enumerated supra, the excited utterance exception has 28

a competency requirement: “the declarant must have had an opportunity to observe the facts

contained in the extrajudicial statement.” Land, 34 S.W.3d at 529; Cohen et al., § 8.07[4], at 8-78. 

Polson’s testimony that the contractor saw the tag number as the minivan drove by satisfies this

competency requirement.

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Second, the contractor’s statement was related to the startling event. Along with

announcing that she had been robbed, Polson asked the contractor to observe the tag number

of the vehicle that the man leaving the store had gotten into. The contractor recorded the tag

number in response to Polson’s request.

Third, the contractor observed and recorded the tag number quickly, suggesting that

the contractor was still under the stress and excitement of Polson’s announcement that she

had been robbed. Polson testified that, as she exited the store, the white minivan was already

beginning to move. Therefore, the contractor’s observation of the tag number took place just

a few moments after Polson announced that she had been robbed. The contractor was

standing two to three feet away from the vehicle as it passed by. Since it was moving away,

he had little time to reflect before acting. Polson testified that the contractor then came back

inside the store, where he found Polson shaking too severely to write down the tag number

herself. Given the quick succession of events, the seriousness of robbery, and the

contractor’s close proximity to the minivan when observing the tag number, the totality of

the circumstances indicates that the contractor observed and recorded the tag number in a

manner that “preclude[s] the idea of deliberation and fabrication.” Smith, 857 S.W.2d at 9.

The written tag number that the contractor provided in response to Polson’s question meets

the requirements for admission as an excited utterance. See id. (explaining that excited

29

utterances should not be excluded simply because they were elicited in response to a question

asked by another).

Remaining Issues

Our resolution of the single issue presented to us reinstates Defendant’s conviction.

Typically, this would result in a remand to the Court of Criminal Appeals to consider any

issues pretermitted by its original ruling. In this case, however, the Court of Criminal

Appeals also considered and rejected all of Defendant’s other challenges concerning the

sufficiency of the evidence, his sentence, and cumulative error. Although Defendant does

not raise these issues before this Court, we have exercised our discretion to address them for

the sake of thoroughness. See Tenn. R. App. P. 13(b). For the reasons explained below, we

agree with the Court of Criminal Appeals’ resolution of these issues.

First, Defendant challenges the sufficiency of the evidence to establish his identity as

the robber. The proper inquiry is, after considering the evidence in a light most favorable to

Because we conclude that the statement is nontestimonial hearsay admissible as an excited 29

utterance, we need not reach Defendant’s argument that the State failed to prove that the contractor

was unavailable to testify at trial, and we offer no opinion on the merits of that argument. See

Cannon, 254 S.W.3d at 306. 

-28-
the prosecution, whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443

U.S. 307, 319 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). We give the State

the strongest legitimate view of the evidence introduced at trial and all reasonable and

legitimate inferences which may be drawn from that evidence. Evans, 108 S.W.3d at 237;

State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 599

(Tenn. 1999). Because the verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, Defendant bears the burden on appeal of showing

why the evidence is insufficient to support the jury’s verdict. Evans, 108 S.W.3d at 237;

Carruthers, 35 S.W.3d at 557-58. In this case, Defendant has not carried his burden. The

victim identified Defendant in a photo lineup two days after the robbery and then identified

Defendant again at trial. Dugger and Smith likewise identified Defendant in photo lineups

that placed him at the strip mall shortly before the robbery took place. A bystander observed

and recorded the tag number of a vehicle registered to Defendant leaving the strip mall

shortly after the robbery took place. Based on this evidence we are persuaded that a rational

trier of fact could have found beyond a reasonable doubt that Defendant committed the

robbery.

We likewise reject Defendant’s challenge to the length of his sentence and the denial

of community corrections. On appeal the party challenging the sentence imposed by the trial

court has the burden of proving it is erroneous. Tenn. Code Ann. § 40-35-401, sentencing

comm’n cmts. (2006); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When the length,

range, or manner of sentence is challenged, the appellate court conducts de novo review with

a presumption of correctness, conditioned on the affirmative showing that the trial court

considered propersentencing principles and all relevant facts and circumstances. Tenn. Code

Ann. § 40-35-401(d); State v. Carter, 254 S.W.3d 335, 344-345 (Tenn. 2008). If we find that

the trial court erred in considering any sentencing principles or facts, then we review the

sentence de novo without the presumption of correctness. Carter, 254 S.W.3d at 345.

In conducting de novo review, we must consider provisions contained in Tennessee

Code Annotated section 40-35-210(b) (2006). The 2005 amendments to our Sentencing Act

eliminated mandatory weighing of mitigating and enhancement factors, rendering them

purely advisory. See Tenn. Code Ann. § 40-35-210(c); Carter, 254 S.W.3d at 344. However,

sentencing courts still must “consider” each guideline that is relevant but may weigh each

guideline in their own discretion. Id.

Robbery is a Class C felony. Tenn. Code Ann. § 39-13-401. As a Range III offender,

Defendant was eligible for a sentence of ten to fifteen years. Id. § 40-35-112(c)(3) (2006).

Here, the trial court found the existence of two enhancement factors: previous history of

criminal convictions in addition to those necessary to establish Range III status, and

-29-
Defendant’s failure to comply with conditions involving release into the community. See id.

§ 40-35-114(1), (8) (2006).

The record supports both of the trial court’s findings. For a Class C felon such as

Defendant to qualify as a Range III persistent offender, he must have received at least five

prior felony convictions within the same, higher, or next two lower felony classes. Id. § 40-

35-107(a)(1) (2006). Here, within Defendant’s twenty-year-long criminal history, the State

cited nine felonies in its “Notice of Enhancement and Impeachment,” all documented in the

presentence report: four convictions for driving while a habitual motor vehicle offender,

three convictions for possession of a controlled substance with intent to sell, and one

conviction apiece for solicitation of a felony and petty larceny. Therefore, beyond the five

prior felony convictions that establish Defendant as a Range III offender, he has a history of

additional criminal offensesthat the trial court properly considered as an enhancement factor.

Furthermore, the presentence report documented a violation of probation in 1987 that

establishes Defendant’sfailure to comply with conditions of a sentence involving release into

the community. Although Defendant asserts that such a judicial finding violated his right

30

to a jury trial under Blakely v. Washington, 542 U.S. 296 (2004), Defendant admits this issue

is merely being preserved for future review, as we have already held that Blakely does not

implicate our Sentencing Act following the 2005 amendments, see State v. Banks, 271

S.W.3d 90, 144-45 (Tenn. 2008). In short, the trial court properly exercised its discretion in

sentencing Defendant to a twelve-year term.

Defendant next arguesthat the sentence should have been into community corrections,

rather than the Department of Corrections. By likewise rendering advisory the guidelines for

alternative sentencing, the 2005 amendments eliminate the presumption that a Class C felon

is a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6)

(2006); Carter, 254 S.W.3d at 347. Additionally, Defendant fails to meet the eligibility

criteria of Tennessee Code Annotated section 40-36-106(a) (2006) because he was convicted

of a crime against Polson’s person. See State v. Weaver, No. W2006-00786-CCA-R3-CD,

2007 WL 1215061, at *3 (Tenn. Crim. App. Apr. 25, 2007). Defendant has a long history

of criminal conduct, including the nine felonies previously discussed, and an alternative

sentence would depreciate the seriousness of Defendant’s offense. See Tenn. Code Ann. §

40-35-103(1)(A)-(B) (2006). No special need for alternative sentencing has been shown.

Cf. id. § 40-36-106(c). Therefore, we affirm the trial court’s decision to sentence Defendant

to the Department of Corrections.

Because the probation violation had taken place twenty years before the sentencing hearing 30

for the robbery conviction in this case, the trial court stated on the record and in its findings of fact

that it would not assign weight to Defendant’s failure to comply with conditions of release into the

community.

-30-
In the absence of any reversible error in the issues that Defendant raised before the

Court of Criminal Appeals, we likewise reject Defendant’s argument that the trial court’s

errors cumulatively deprived him of the constitutional rights to due process and a jury trial.

Conclusion

Based on an objective review of the surrounding circumstances, we conclude that the

primary purpose of the written tag number was to provide assistance during an ongoing

emergency, rather than to establish or prove past events of potential relevance to subsequent

criminal prosecution. We also hold that the written tag number satisfied the requirements of

the excited utterance exception to the rule against the admission of hearsay testimony.

Therefore, the trial court, while failing to recognize the statement as hearsay, properly

allowed it into evidence. Accordingly, we reverse the judgment of the Court of Criminal

Appeals and reinstate Defendant’s conviction for robbery and sentence of twelve years.

Since it appears Defendant is indigent, we tax the costs of this appeal to the State of

Tennessee.

_________________________________

CORNELIA A. CLARK, JUSTICE

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