IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 9, 2008

STATE OF TENNESSEE v. DARNELL HUBBARD

Direct Appeal from the Criminal Court for Shelby County

No. 06-08051 Lee V. Coffee, Judge

No. W2007-02482-CCA-R3-CD - Filed August 20, 2009

A Shelby County Criminal Court Jury convicted the appellant, Darnell Hubbard, of the first-degree

premeditated murder of his wife, and he was sentenced to life without the possibility of parole. On

appeal, the appellant contends that the trial court erred by admitting evidence of his prior acts of

violence against the victim. He also challenges the trial court’s admission of evidence relating to

an ex parte order of protection that the victim obtained against him and other statements the victim

made to her son and police. We conclude that the trial court erred in admitting hearsay statements

from the victim in violation of the appellant’s confrontation rights. However, in light of the

overwhelming evidence of the appellant’s guilt, the errors were harmless beyond a reasonable doubt.

Accordingly, we affirm the appellant’s conviction.

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

NORMA MCGEE OGLE,J., delivered the opinion of the court, in whichALAN E.GLENN and CAMILLE

R. MCMULLEN, JJ., joined.

James Hale, Memphis, Tennessee, for the appellant, Darnell Hubbard. 

Robert E.Cooper,Jr., AttorneyGeneral and Reporter; Rachel E. Willis, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In the early morning hours of June 12, 2006, the appellant stabbed Lexie Hubbard twelve

times, killing her. At trial, the victim’s fifteen-year-old daughter, Ashley Jones, testified that she

arrived home around midnight and saw her eleven-year-old brother and the victim watching
-2-

television together in the dining room. The victim’s son and another daughter were asleep in their

bedrooms, and the appellant, “Ricky,” was in the victim’s bedroom. Jones went to bed. She was

awakened by a crashing sound, and she heard the victim say, “No, Ricky, no. Don’t do it; don’t do

it.”

Jones rushed to her mother’s bedroom and saw the appellant pull a nine-inch knife out of the

victim’s chest while the victim was “slouched” over on the floor. Jones yelled for her older brother,

Demarlon Davis, and told him the appellant had stabbed their mother. Jones ran to the kitchen,

obtained two knives, and gave them to Davis. The appellant emerged from the bedroom; swung the

knife he had used to stab the victim at Jones, Davis, and others in the house; and ordered them to

move. During the confrontation, the victim moved into Jones’ bedroom and locked the door. The

appellant grabbed the victim’s keys and ran outside, and Davis chased him. Jones initially ran after

Davis and the appellant but returned to the house because she was concerned about the victim.

Before paramedics arrived, the victim was breathing hard and was in and out of consciousness. A

firefighter at the scene informed Jones that the victim had died. 

Jones testified that the victim wanted a divorce from the appellant so that she could marry

someone else. Three days before the stabbing, the appellant called and left messages on the victim’s

cellular telephone. The victim let Jones listen to one of the messages in which the appellant, in an

angry voice, threatened to kill the victim. Jones said that the appellant had threatened to “get” her

and her mother in the past. She said that the appellant often threatened and tried to fight with the

victim when Jones’ brothers were not around but that when the victim’ssons were present it “would

be a peaceful day.” Jones recalled that the victim called the police a few days before the stabbing

because the appellant was trying to get into their home. The police came but told the victim that the

appellant was allowed in the house because they were married.

Jones said that she occasionally cleaned her mother’s room and that a few times she found

a large knife from the kitchen knife set tucked under the mattress on the appellant’s side of the bed.

The knife the appellant used to kill the victim was one of the knives. Jones removed the knives she

found in the victim’s bedroom and hid them elsewhere because she was worried that the appellant

was going to kill the victim. 

Jones testified that a couple of years before the victim’s death, she saw the appellant threaten

to kill the victim with a knife. On that occasion, the appellant waited until everyone in the house was

asleep. Jones awoke to see the appellant standing over the victim with a knife in his hand. The

appellant threatened to kill the victim, but the victim and her children convinced him to leave

instead. Jones also recalled another instance when she saw the appellant punch the victim, “busting”

her lip.

The victim’s son, Demarlon Davis, testified that on the night of the stabbing he heard the

appellant urging the victim to go to bed. He also heard the appellant tell the victim that if he could

not have her, nobody would. The victim told Davis that the appellant threatened to kill her and that

she did not feel right with the appellant in the house. Davis offered to force the appellant to leave,
-3-

but the victim declined and said that she was going to sleep. Davis went to bed and was awakened

by his sister’s screams. Davis said that upon hearing the screams, he “ran down toward like in [his]

momma’s room and [his] momma’s whole gown was soaking wet with nothing but blood.” The

victim told him that she was “fixing to die” and that the appellant had stabbed her “a whole lot of

times.” Davis saw the appellant come out of the victim’s bedroom with a knife. The appellant was

“swinging” the knife at Davis and his daughter. Afterward, the appellant ran from the house. Davis

chased the appellant until the appellant was apprehended by police.

Dr. Bruce Levy, the Chief Medical Examiner for the State of Tennessee, described the

victim’s multiple stab wounds. He said that the victim had twelve sharp force injuries. Ten wounds

were described as “major stab wounds,” and one pierced the right ventricle of the heart. The victim

bled to death as the result of the injuries.

The victim’s sister, Leslie Adams, testified about the appellant’s relationship with the victim.

She said that the victim and the appellant fought frequently and often lived apart. According to

Adams, the victim moved to the home where she was living at the time of her death in order to get

away from the appellant. When the victim lived at her previous residence, she asked Adams to stay

with her at times when the appellant was at the residence because she was afraid of him. Adams

never saw the appellant hit the victim, but, on one occasion, she saw him try to stab her. She said

that on that occasion, the victim and appellant were arguing over something petty and the appellant

tried to stab the victim with a long kitchen knife. Adams said that she jumped between the appellant

and the victim to prevent the stabbing. 

Adams also testified regarding an altercation involving the appellant and the victim at their

place of employment. Adams said the appellant had “whupped” the victim with a chair and poured

bleach on her. Adams said that after the altercation, the victim left work and went to Adams’ home.

The victim was on her way to “press charges” against the appellant. The victim was very upset and

was crying. The victim told Adams that “that n-----, well, . . . you know, said in a violent way that

he had done whupped on her jaw.” Adams said that the appellant had knocked the victim’s teeth out

and that she was “all bruised up.” The victim was “shaken” and said that she could not believe that

the appellant “flipped” and “did this.” Adams had heard the appellant threaten the victim many

times and had heard him tell her that if he could not have her, nobody would. The victim told

Adams that the only way the appellant would “get” her would be in her sleep.

Debora Coffman, a counselor with the Shelby County Citizen’s Dispute, testified that she met

with the victim on November 9, 2005, and helped the victim apply for an ex parte order of protection

against the appellant. The victim told Coffman that she was afraid of the appellant because he had

threatened to “get” her and because he had struck her with a chair and his fist in the past. Although

an ex parte order of protection was issued, the case was dismissed a couple of weeks later because

neither party showed up for the court hearing.

Memphis Police Department Sergeant Degrah Bell testified that she investigated the victim’s

domestic violence complaints against the appellant. In April 2002, the victim filled out a police
-4-

report, alleging that the appellant had attacked her with a metal chair while she was working.

Sergeant Bell met with the victim. The victim was afraid and told Sergeant Bell that the appellant

had attacked her because she had refused to give him a ride home. After a prosecutor determined

that there was probable cause, Sergeant Bell prepared a warrant for aggravated assault against the

appellant. In 2004, Sergeant Bell spoke with the victim by telephone to investigate another police

report the victim had filed against the appellant alleging domestic violence. The victim told Sergeant

Bell that the appellant attacked her physically and threatened to kill her with a knife and some

bleach. The victim said that no further action was needed on the police report because the appellant

had moved out of the home and she felt safe. 

II. Analysis

On appeal, the appellant argues that the trial court improperly admitted evidence of his prior

bad acts in violation of Tennessee Rule of Evidence 404(b) and that the trial court erred when it

allowed the state to introduce hearsay evidence of statements the victim made about the appellant

in violation of his confrontation rights. The appellant does not dispute that he is responsible for the

victim’s death, but he argues that the trial court’s errors in admitting the evidence of his prior acts

of violence and threats against the victim improperly inflamed the jury when it considered whether

the homicide was first or second degree murder. 

A. Rule 404(b)

With respect to Tennessee Rule of Evidence 404(b), the appellant challenges the trial court’s

admission of Ashley Jones’ testimony that she found knives hidden in the victim’s bedroom, her

testimony regarding the prior incident when she saw the appellant threaten the victim with a knife,

and her testimony that she saw the appellant “punch” the victim. He also contends that the trial court

erred by allowing Leslie Adams to testify that she had seen him threaten the victim with a knife on

a previous occasion and that Adams should not have been allowed to testify about the injuries the

appellant inflicted upon the victim at work. 

Generally, a party may not introduce evidence of an individual’s character or a particular

character trait in order to prove that the individual acted in conformity with that character or trait at

a certain time. Tenn. R. Evid. 404(a). In other words, a party may not use character evidence to

show that a person acted in a particular way because he or she had a propensity to do so. State v.

Moore, 6 S.W.3d 235, 239 (Tenn. 1999); State v. Parton, 694 S.W.2d 299, 304 (Tenn. 1985)

(observing that evidence of another crime is not admissible to show that the defendant is the kind

of person who would tend to commit the offense); State v. Tizard, 897 S.W.2d 732, 743 (Tenn.

Crim. App. 1994) (noting that character evidence may not be used to show propensity to act).

Similarly, evidence “of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b).

However, such evidence may be admitted for other purposes if relevant to some matter

actually at issue in the case and if its probative value is not outweighed by the danger of its
-5-

prejudicial effect. Tenn. R. Evid. 404(b); State v. Wyrick, 62 S.W.3d 751, 771 (Tenn. Crim. App.

2001). Issues to which such evidence may be relevant include identity, motive, common scheme or

plan, intent, or the rebuttal of accident or mistake defenses. Tenn. R. Evid. 404(b), Advisory

Comm’n Cmts.; Parton, 694 S.W.2d at 302. Admissibility of other crimes, wrongs, or acts is also

contingent upon the trial court finding by clear and convincing evidence that the prior crime, wrong,

or act was actually committed. Tenn. R. Evid. 404(b); Wyrick, 62 S.W.3d at 771. The jury may

consider evidence admitted under 404(b) as substantive evidence at trial. Wyrick, 62 S.W.3d at 771.

Before the trial court may permit evidence of a prior crime, wrong, or act, the following

procedures must be met:

(1) The court upon request must hold a hearing outside the jury’s

presence;

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

conduct conforming with a character trait and must upon request state

on the record the material issue, the ruling and the reasons for

admitting the evidence;

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

clear and convincing; and

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

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Provided that the trial court has complied with these procedures, this court

will not overturn the trial court’s decision to admit or exclude evidence under Rule 404(b) absent

an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

1. Ashley Jones’ Testimony

The appellant contends that the trial court erred in allowing Ashley Jones’ testimony about

finding knives in the victim’s bedroom and her testimony that she witnessed prior threats and acts

of violence the appellant committed against the victim. Initially, we note that the appellant failed

to raise any issue with respect to Ashley Jones’ testimony in his motion for new trial. Rule 3(e) of

the Tennessee Rules of Appellate Procedure specifically provides that

in all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence, . . .

or other action committed or occurring during the trial of the case, .

. . unless the same was specifically stated in a motion for a new trial;

otherwise such issues will be treated as waived.
Effective July 1, 2009, Rule 52(b) of the Tennessee Rules of Criminal Procedure was deleted in its 1

entirety, and the plain error language was added to Rule 36(b) of the Tennessee Rules of Appellate Procedure. 

See Tenn. R. App. P. 36(b) and Tenn. R. Crim. P. 52, Advisory Comm’n Cmts. (2009).

-6-

Accordingly, the appellant has waived these issues. 

We further conclude that the appellant is not entitled to plain error relief with respect to the

admission of the testimony of Ashley Jones. See Tenn. R. App. P. 36(b). “When necessary to do

substantial justice,” this court may address an “errorthat has affected the substantial rights of a party

at any time, even though the error was not raised in the motion for a new trial . . . .” Id. For an issue

to be considered plain error, each of the following five factors must be met:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached; (c)

a substantial right of the accused must have been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and (e)

consideration of the error is “necessary to do substantial justice.”

 

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (quoting Tenn. R. Crim. P

52(b) ) (footnotes omitted); see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the 1

Adkisson test for determining plain error). Furthermore, the “‘plain error’ must be of such a great

magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (quoting

United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)). 

The record reflects that the trial court held a jury-out hearing in compliance with Tennessee

Rule of Evidence 404(b) before admitting Jones’ testimony. The trial court concluded that Jones’

testimony concerning the knives Jones found hidden on the appellant’s side of the bed and her

testimony about the acts of violence and threats she witnessed were admissible to show

premeditation and intent, lack of accident or mistake, motive, and a complete picture of the events

surrounding the killing. The trial court further concluded that the probative value of the testimony

was not outweighed by any danger of unfair prejudice. We agree with the trial court’s assessment.

The admission ofJones’ testimony did not breach a clear and unequivocal rule of law that adversely

affected a substantial right of the appellant; therefore, the appellant is not entitled to plain error relief.

2. Leslie Adams’ Testimony

Next, the appellant contends that the trial court erred by allowing Leslie Adams’ testimony

about the prior incident when the appellant attempted to stab the victim with a knife. Here again,

the record reflects that the trial court complied with the procedural requirements of Rule 404(b). At

the conclusion of the jury-out hearing, the trial court ruled that Adams’ testimony was clear and

convincing evidence of the prior incident and that the testimony was admissible to show “intent,

knowledge, premeditation, . . . motive” and to show the “complete story” of violence and hostility
-7-

that led to the killing. The trial court did not abuse its discretion when it admitted the testimony for

the stated purposes.

In his appellate brief, the appellant also challenges the trial court’s admission of Adams’

testimony about injuries the victim told her she received as the result of the appellant hitting her with

a chair at work. The appellant has waived the issue by failing to include it in his motion for new

trial. Tenn. R. App. P. 3(e). Moreover, we note that the appellant is not entitled to plain error relief

on the issue. The record supports the trial court’s determination that the victim’s statements to

Adams following the attack were excited utterances under Tennessee Rule of Evidence 803(2). 

B. Hearsay and Confrontation

Next, the appellant contends that the trial court erred by allowing into evidence statements

the victim made to Debora Coffman, Demarlon Davis, and Sergeant Degrah Bell. He contends that

the admission of the statements violated hearsay rules and his constitutional right to confront the

witnesses against him. He argues that the trial court erroneously relied on State v. Ivy, 188 S.W.3d

132 (Tenn. 2006), and the forfeiture by wrongdoing hearsay exception because there is no proof in

the record that he killed the victim to procure her unavailability as a witness. The State concedes

that admission of the hearsay evidence was error but contends that the error was harmless beyond

a reasonable doubt. 

Hearsay is defined as “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). Generally, hearsay statements are inadmissible unless they fall under one of the recognized

exceptions to the hearsay rule. Tenn. R. Evid. 802. The “forfeiture by wrongdoing” exception

allows the admission of a hearsaystatement “against a party that has engaged in wrongdoing that was

intended to and did procure the unavailability of the declarant as a witness.” Tenn. R. Evid.

804(b)(6). “Even intentional misconduct, such as killing a witness, does not qualify unless done for

the purpose of procuring the witness’s unavailability.” Neil P. Cohen et al., Tennessee Law of

Evidence § 8.39[2][c] (LEXIS publishing, 5th ed. 2005). In determining whether hearsay is

admissible under the rule, the trial court must conduct a jury-out hearing and “find that a

preponderance of the evidence establishes 1) that the defendant was involved in or responsible for

procuring the unavailability ofthe declarant; and 2)that a defendant’s actions were intended, at least

in part, to procure the absence of the declarant.” Ivy, 188 S.W.3d at 147. For the exception to apply,

there must be “a showing that a defendant’s actions were intended, at least in part, to prevent a

witness from testifying.” State v. Brooks, 249 S.W.3d 323, 325 (Tenn. 2008).

The forfeiture by wrongdoing exception to an accused’s confrontation rights under the Sixth

Amendment to the United States Constitution likewise requires a showing that the defendant

“engaged in conduct designed to prevent the witness from testifying.” Giles v. California, ___ U.S.

___, 128 S. Ct. 2678, 2683 (2008) (emphasis in original). The Sixth Amendment to the Constitution

provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” In addition, article I, section 9 of the Tennessee Constitution provides
-8-

that “in all criminal prosecutions, the accused has the right to . . . meet the witnesses face to face.”

“Although the language of the federal and state constitutional provisions is somewhat different, in

determining the rights of an accused under article I, section 9, [Tennessee courts] have traditionally

adopted and applied the standards enunciated by the United States Supreme Court.” State v.

Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); see also State v. Lewis, 235 S.W.3d 136, 144 (Tenn.

2007).

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme Court

analyzed the Sixth Amendment right to confrontation and drew a distinction between the admission

of testimonial and nontestimonial hearsay. The Court explained that the admission of nontestimonial

hearsay is exempt from Confrontation Clause scrutiny; however, the “Sixth Amendment demands

. . . unavailability and a prior opportunity for cross-examination” for the admission of testimonial

hearsay. 541 U.S. at 68, 124 S. Ct. at 1374. Although the Court declined to define “testimonial”

comprehensively, it explained that the term “applies at a minimum to prior testimony . . . and to

police interrogations.” Id. Since Crawford, the Court has clarified that statements to police are

nontestimonial when “the primary purpose of the interrogation is to enable police assistance to meet

an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006).

However, statements made in the course of police interrogations under circumstances indicating 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” are testimonial. Davis, 547 U.S.

at 822, 126 S. Ct. at 2274; see also Cannon, 254 S.W.3d at 302. 

The Crawford court also acknowledged the forfeiture by wrongdoing doctrine as an exception

to an accused’s confrontation rights. The court explained that “[t]he rule of forfeiture by wrongdoing

(which we accept) extinguishes confrontation claims on essentially equitable grounds.” Crawford,

541 U.S. at 62, 124 S. Ct. at 1370. In other words, “if a witness is absent by [the defendant’s] own

wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of

that which he has kept away.” Reynolds v. United States, 98 U.S. 145, 158 (1879). “The rule has

its foundation in the maxim that no one shall be permitted to take advantage of his own wrong.” Id.

at 159.

The Court further explained the forfeiture by wrongdoing exception to the right of

confrontation in Giles v. California, ___ U.S. ___, 128 S. Ct. 2678, 2683 (2008). Three weeks

before the defendant shot her to death, the victim in Giles complained to police that Giles had

choked and threatened to kill her. Giles, 128 S. Ct. at 2681-82. The prosecution introduced

evidence of the prior domestic violence report in the murder trial to rebut Giles’ contention that he

shot the victim in self-defense. Id. Without considering whether Giles intended to prevent the

victim from testifying, the trial court and California appellate courts held that admission of the

testimony was proper under both a state law hearsay exception and under the forfeiture by

wrongdoing exception to the Confrontation Clause. The Supreme Court rejected the state court

analysis and held that the forfeiture by wrongdoing exception to the Confrontation Clause requires

a showing that the defendant intended to prevent the unavailable witness from testifying. Id. at 2682.
-9-

In reaching its decision, the Giles court provided some guidance with respect to the types of

evidence that may be available to establish a defendant’s intent to prevent testimony in cases

involving domestic violence. The court explained: 

Acts of domestic violence often are intended to dissuade a victim

from resorting to outside help, and include conduct designed to

prevent testimony to police officers or cooperation in criminal

prosecutions. Where such an abusive relationship culminates in

murder, the evidence may support a finding that the crime expressed

the intent to isolate the victim and to stop her from reporting abuse to

the authorities or cooperating with a criminal prosecution – rendering

her prior statements admissible under the forfeiture doctrine. Earlier

abuse, or threats of abuse, intended to dissuade the victim from

resorting to outside help would be highly relevant to this inquiry, as

would evidence of ongoing criminal proceedings at which the victim

would have been expected to testify. 

Id. at 2693.

In the present case, the appellant argues that there is no evidence in the record demonstrating

that he killed the victim to prevent her testimony and that the trial court erred by applying the

forfeiture by wrongdoing exception to the hearsay rule and Confrontation Clause. The State

concedes that it failed to prove by a preponderance of the evidence that the appellant killed the

victim to procure her unavailability as a witness and that the victim’s statements – both testimonial

and nontestimonial – were therefore not admissible under the forfeiture by wrongdoing exception

to the hearsay rule or Confrontation Clause. After carefully reviewing the record in this case, we

agree with the parties that the trial court erred by admitting statements the victim made to Coffman

to obtain the order of protection, statements the victim made to Davis, and the domestic violence

allegations the victim made to Sergeant Bell. 

1. Coffman Testimony

The record reflects that the trial court initially ruled that Debora Coffman’s testimony

concerning statements the victim made while obtaining the temporary order of protection would be

inadmissible based on hearsay and confrontation concerns. However, without presenting any

evidence, the State convinced the court to change its ruling based on State v. Ivy, 188 S.W.3d 132

(Tenn. 2006), during a jury-out hearing after opening statements. In finding that the testimony

concerning the allegations the victim made in obtaining the temporary order of protection fit within

the forfeiture by wrongdoing exception, the court explained:

The Court finds that they are hearsay statements, but under 804(b)(6),

the Court further finds given the rulings of the Supreme Court in the

David Ivy case, that the Crawford and Maclin concerns are
-10-

extinguished by this defendant making his victim unavailable, not

necessarily for a murder prosecution, as every victim would be

unavailable for a murder prosecution, but also, unavailable for any

other actions that the victim might have pursued against this

defendant, and the Court will allow the contents in these statements

that were made by this alleged victim to Miss Coffman to be admitted

in the State’s case in chief as the Supreme Court has seen fit to rule

that those statements should be admissible under those circumstances.

The Court does find that they are relevant as indicated earlier

for the intent and knowledge and premeditation, to show all of the

circumstances surrounding the intent, to show, as the trial court ruled

in the David Ivy case, what the motive of this killing might have been,

and to paint an accurate picture of the hostility that existed in the

relationship between . . . Darnell Hubbard . . . and Lexie Hubbard, and

for all of those reasons, all of the facts and circumstances surrounding

that offense will be admissible for those limited purposes as indicated

earlier.

Statements the victim made about the appellant in order to obtain an order of protection

against him were testimonial in nature. Before applying the forfeiture by wrongdoing exception to

the Confrontation Clause and hearsay rule, the trial court was required to find by a preponderance of

the evidence that the appellant’s actions were intended, at least in part, to prevent the victim’s

testimony. Giles, __ U.S. ___, 128 S. Ct. at 2683; Brooks, 249 S.W.3d at 328; Ivy, 188 S.W.3d at

147. Although the court noted that the victim was unavailable for other actions that the victim might

have pursued against the appellant and that statements the victim made in obtaining the order of

protection were relevant to the appellant’s motive, the court made no finding with respect to the

appellant’s intent to prevent the victim from testifying. The case involving the ex parte order of

protection had been dismissed, and the State presented no evidence that the appellant’s actions were

designed to prevent the victim’s testimony. Accordingly, the victim’s statements to Coffman and the

affidavit the victim completed to obtain the order of protection should have been excluded. 

2. Demarlon Davis

When Demarlon Davis began to testify that the victim told him that the appellant “constantly”

threatened to kill her when they were alone, the defense objected on hearsay grounds. The State

responded that the forfeiture by wrongdoing exception applied, and the court overruled the objection

based on its previous rulings. Davis was allowed to testify that the victim had multiple problems with

the appellant when they were alone and that the victim told him that the appellant threatened to kill

her. The trial court should have excluded the testimony as inadmissible hearsay. The forfeiture by

wrongdoing exception to the hearsay rule was inapplicable in the absence of proof that the appellant’s

actions were intended to prevent the victim’s testimony, and the State presented no proof establishing

the applicability of any other hearsay exception. 
-11-

3. Sergeant Bell

Finally, the appellant challenges the admission of Sergeant Bell’s testimony concerning the

victim’s prior complaints to police. Sergeant Bell testified that the victim filed a police report in 2002

asserting that the appellant had attacked her with a metal chair, and a warrant charging the appellant

with aggravated assault was issued. She said that she talked to the victim again in 2004 when the

victim filed a report claiming that the appellant physically fought her, grabbed her by the neck, and

threatened to kill her with a knife and some bleach. The victim told Sergeant Bell that no further

action was needed on the 2004 report because the appellant was no longer living with her.

 

The trial court held a jury-out hearing in accordance with Rule 404(b) of the Tennessee Rules

of Evidence before admitting Sergeant Bell’s testimony. In concluding that Sergeant Bell’s testimony

was admissible, the court again cited State v. Ivy, 188 S.W.3d 132 (Tenn. 2006), and said that the

evidence was relevant “to give the jury a complete picture of the violence that [the appellant] visited

upon this victim and the threats that he has made, to show a motive for this killing, his threats having

been made previously that if he could not have Miss Hubbard, that no one would.” The court also

found that the testimony was admissible to show hostility that existed in the relationship, to

corroborate the testimony of other witnesses who had been questioned about whether prior incidents

between the appellant and victim had been reported to police, and as being probative of

premeditation. We conclude that the admission of Sergeant Bell’s testimony, without a finding that

the appellant was motivated, at least in part, to prevent the victim’s testimony, violated the hearsay

rules and the appellant’s confrontation rights. 

C. Harmless Error Analysis 

Having determined that the trial court erred by admitting the victim’s hearsay statements to

Debora Coffman, Demarlon Davis, and Sergeant Bell, we must now decide the effect of the errors.

In conducting harmless error analysis, our supreme court has identified three categories of errors: (1)

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

State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008); State v. Powers, 101 S.W.3d 383, 397 (Tenn.

2003); State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-

15 (Tenn. 1999).

Structural constitutional errors involve “defects in the trial mechanism” that “compromise the

integrity of the judicial process itself.” Rodriguez, 254 S.W.3d at 371. Structural constitutional

errors “have an impact upon ‘[t]he entire conduct of trial from beginning to end’” and require

automatic reversal. Momon v. State, 18 S.W.3d 152, 165 (Tenn. 1999) (quoting Arizona v.

Fulminante, 499 U.S. 279, 311, 111 S. Ct. 1246, 1265 (1991)). The denial of the right to counsel,

denial of the right to self-representation at trial, denial of the right to a jury trial, and racial

discrimination in grand jury selection are examples of structural constitutional errors. Rodriguez, 254

S.W.3d at 361; Momon, 18 S.W.3d at 165-66.

Constitutional errors that are not structural do not require automatic reversal. “However, the
-12-

burden on the State to demonstrate that a non-structural constitutional error is harmless remains quite

stringent. The existence of a non-structural constitutional error requires reversal unless the State

demonstrates beyond a reasonable doubt that the error is harmless.” Rodriguez, 254 S.W.2d at 361.

The test to be applied is “whether it appears ‘beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.’” Id. (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn.

2002)). 

As for non-constitutional errors, a defendant challenging a conviction has the burden of

demonstrating that the error “more probably than not affected the judgment or would result in

prejudice to the judicial process.” Tenn. R. App. P. 36(b); 254 S.W.3d at 361. Appellate courts

consider the entire record in evaluating whether the error affected the outcome of the trial. Id. To

the extent that the trial court erred by admitting non-testimonial hearsay statements the victim made

to Davis, the appellant bears the burden of demonstrating that the error affected the outcome of the

trial or prejudiced the judicial process. 

Like other Confrontation Clause errors, the trial court’s admission of the statements the victim

made to Coffman and Sergeant Bell are non-structural constitutional errors. Delaware v. Van Arsdall,

475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986); Cannon, 254 S.W.3d at 306. Thus, in order to

sustain the appellant’s conviction, the state has the burden of proving beyond a reasonable doubt that

the errors did not contribute to the appellant’s conviction. In our view, the State has met its burden.

First degree murder is the premeditated and intentional killing of another person. Tenn. Code

Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise of reflection and

judgment.” Tenn. Code Ann. § 39-13-202(d). Premeditation can be inferred from the manner and

circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Our

supreme court has delineated several circumstances from which a jury may infer premeditation,

including, but not limited to, declarations of the intent to kill, evidence of the procurement of a

weapon, the use of a deadly weapon upon an unarmed victim, the particular cruelty of the killing,

preparations before the killing for the purpose of concealing the crime, and calmness immediately

after the killing. Id.

Even without the erroneously admitted evidence of the victim’s prior statements, the record

in this case is replete with proof that the appellant intentionally and with premeditation killed the

victim. It is undisputed that the appellant killed the unarmed victim by stabbing her twelve times.

Jones, Davis, and Adams all heard the appellant threaten the victim many times. On numerous

occasions, Davis and Adams heard the appellant tell the victim that if he could not have her, nobody

would. Both Jones and Adams had seen the appellant use a knife to threaten the victim in the past,

and Jones had found large kitchen knives, including the knife used to kill the victim, hidden under

the appellant’s side of the mattress in the victim’s bedroom. Jones also testified that the victim

wanted to end the relationship with the appellant and described how the victim unsuccessfully sought

police help to keep the appellant out of her home a few days before the killing. Jones told the jury

about the angry message the appellant left, threatening to kill the victim just three days before the

stabbing. Hours before the appellant carried out the threat, Davis heard the appellant again tell the
-13-

victim that if he could not have her, nobody would. In light of the overwhelming proof of the

appellant’s guilt, we are convinced that the erroneously admitted hearsay evidence had no impact on

the jury’s verdict. Accordingly, we affirm the appellant’s conviction.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial court. 

_______________________________ 

NORMA McGEE OGLE, JUDGE