### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 1, 2002

STATE OF TENN ESSEE v. QUINN L. HAMILTON

Appeal from the Criminal Court for Davidson County No. 97-C-2004 Cheryl Blackburn, Judge

No. M2001-02748-CCA-R3-CD Filed De cember 5, 2002

A jury convicted the D efendant, Quinn L. Hamilton, of aggr avated r obbery , a Class B felony, and evading arrest, a Class D felony . The trial court sentenced the Defenda nt as a Range I

I mult iple offender to consec

utive ter ms of nine

teen y ears and seven y

ears, resp ectively, for

an effective sentence of twenty-six y

ears, to be served in the Department of Correction. In this appeal as of rig ht, the Defend ant conte

nds that the trial co urt erred in declaring the victim witness unavailable and allowing his prior tes timony to be a dmitted at trial as substantive evidence. We affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and A LAN E. G LENN , JJ., joined.
John E. Rodgers, Jr., Nashville, Tennessee, for the appellant, Quinn L . Hamilton.
Paul G. Summers, Attorney Gene ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; Victor S. Johnson, District Attorney Gene ral; and Bret T.Gunn, Assistant District Attorney Genera l, for the appellee, State of Tennessee.

OPINION

The robbery in this case

occurred on February

28, 1997. On May 20, 1997, the victim, Quan Shelton, testi fied at the De fendan t’s pr elim inary hear ing. The Defendant’s attorney was present

and cross-examined Mr. Shelton. Mr. Shelton testified that two men robbed him at about one o’clock in the afternoon on February 28, 1997. Mr. Shelton was walking down the street alone when two black men accosted him. The y ounger man was on a bicy cle. The olde r man walked u p to Mr. Shelton, pulled a handgun, put the gun to Mr. Shelton’s stomach, and remove d the gold necklace that Mr. Shelton was wearing. The man th en beg an reac

hing into Mr. Shelton’s pockets, demanding “the cheese ” and thr

eatenin g to kill

Mr. Shelton. Mr. Shelton testified that he had $550 in cash, which the Defendant took.-2-

Mr. Shelton did not know either of the two men who robbed him. He subsequently identified the man on the

bicycle from photographs he reviewed at the police station which were produced by the police department based on Mr. Shelton’s description of the man. The man identified by Mr. Shelton was Mario Woodard, a juvenile. Mr. Shelton testified that he identified the Defendant from another photo line-up produced by the police at a later time.

Mario Woodard testified at the Defendant’s trial. He stated that he kne w the Defendant prior to the robbery , and saw the robbery take place as he was riding by on his bicycle. He

testified that he saw the Defendant holding a g un and saw the Defendant robthe victim of money. Mr. Woodard testifie d that he w as “sure ” it was the Defe ndant.

Detective Shellie Ke

ndallMalone testified at trial that she investigated the robbery . She met withMr. Shelton on March 20, 1997, and to ok de sc ri pt io ns of

th e t wo me n i nv ol ve d i n t he ro bb er y. She enter ed the relevant information into the computer and beg an generating photog raphs of men who matched the data. Attempting to identify the older suspect, Mr. Shelton initially viewed 2,022 photographs but did not ide ntify a suspect. De tective Malone then began try ing to identify the younge r suspect, inputting the relevant data fo r him. Mr. Shelton reviewed 175 photographs and identified Mario Woodard. DetectibeShelton te stified th at Mr. She lton expre ssed no uncertain ty about his identification of Mario Woodard.

Woodard was subseque

ntly arrested and agreed to cooperate with the police. He identified the Defendant as the other suspect. On May 1, 1997, D etective

Malone a gain me t with Mr. Shelton and showed him a photo lin e-up of s i x men. O ne of the photos was of the Defendant. Detective Malone testified that, upon viewing the line-up, Mr. Shelton “immediately pointed to the picture of t he [D]efenda

nt.” Detective Ma

lone stated that Mr. Shelton “w as cert ain” of h is identif icatio n

. Detective Malone also testified that the Def endant ’s residence was located two blocks from the sce ne of th e r ob be ry.

The State also

introduc ed at tria

l a transc ript of Mr. Sh elton’s testimony at a suppression hearing held on September 23, 1998. During the suppression hearing, def ense counsel was present and cross-examined Mr. Shelton. Mr. Shelton testified that he identified the Defendant as the man who robbed h im from a p hoto line-up of six persons. He further identified the Defendant in the courtro om. He testif

ied that D etective

Malone di d nothing

to indica te to him that the Defendant’s photo wasa photo of

the man who robbed

him.
During the pr elim inary hear ing, Mr. Shelton testified that he had joinedthe armed services and would be reporting for basic training in August 1997. In J an ua ry 2 00 0, a f ew da ys before the Defendant’s first tria

l date, the State

filed a motion seeking to declare Mr. Shelton unavailable and requesting the court

to allow his prior testimony to be admitted at trial. I n support of

its motion, the Statefiled a letter

dated Janu ary

6, 2000 fr om Captain

Elizabeth W. Watson, Mr. Shelton’s company1 Th e letter wa s filed as a n exhib it with the co urt, app arently during a heari ng. The exhi bit l abel on t he let ter indica tes that it was intro duc ed b y th e State “to conti nue the tri al date.” The technical r ecord does not contain a concomitant motio n to co ntinue, a nd, b ased on the dates o n the rele vant d ocu men ts, we assu me the letter was used in conjun cti on with t

he State’s moti on to declare Mr. Shel ton unava il able (whi ch may have be en ora ll y amen ded to i nclu de a motion to continue).

-3- commander. 1 The letter st ates tha t Mr. Shelto n was at th at time stationed in Germany, but ha d twice been AWOL. For that reason, Captain Watson would “not support him attending this court case.” In response to the State’s mot ion, t he trial court ordered a transcript of Mr. Shelton’s suppre ssion hearing testimony

to be prepared. The trial was also continued until May 22, 2000.

On April 14, 2000, the State filed a second motion to have Mr . Shelton de clared unavaila ble and request

ing that his prior t

estimony be admitted. Attach

ed to this second moti o n was another letter from Captain Watson stating that Mr. Shelto n would

be deploying

to Kosovo for six months

on April 28, 2000, andthat he would be unavailable for trial. The trial court granted this motion and ruled that the State would be able to introduce Mr. Shelton’s testimony at the preliminary he aring and at the suppress ion hear

ing as su bstantive evidenc e at the D efenda

nt’s tria l.

The Defendant’s trial was again c ontinued. A few day s before the new trial date of January 8, 2001, the State filed a third motion to declare Mr. S helton unava ilable. T his motion st

ates, in pertine nt part, th at: 6. Around the beginningof November [2000], Mr. Shelton returned to Germany f

romKosovo. He immediately beg an having discipline problems including being absent-without-leave.

7. From convers at ions with Mr. Shelton’s commander prior to the Christmas holiday s, the State learned that Mr. Shelton would not be allowed t o travel and in fa ct, did not

wish to tra

vel.

8. On January 2, 2001, the State lear ne d t hat the situation had changed. Mr. Shelton was willing to tra ve l if he could go thro ugh Atlanta, Georgia. His commander stated tha t he would

be allowed to travel , but it was too l ate for any flight s thro ugh Atlanta. Since that date, the State has been unable to contact Mr. Shelton.

The State re spectfully s ubmits that Mr. Shelto n is beyond the reach of Tennessee’s subpoena power. Only by his full cooperation and matu re decisions and behavior on his part could the logistical problemof g etting Mr. Shelton to Nashville for this trial be solved. Becau se of

his location and behavior, the problem remains unsolved. The Stateof Tenne ssee still wishes to prosecute [the Defendant] and asks that the Court grant this motion.2 As the Causby court noted, a thi rd requir ement - - th at t he evidenc e be neit her cruci al nor deva stat ing - - was app lie d in Stat e v. Henders on , 554 S. W.2d 117, 119 (Tenn. 1977) and State v. Armes , 607 S.W .2d at 238-39. The Causby court det ermined tha t this requi rement need not be met“i n th e cas e of s uch a w ell [-] est abli shed h ears ay ex cepti on as for mer tes timony .” Stat e v. Causby , 706 S. W.2d at 631 n. 1.

-4- The record contains no indication of what, if any , additional proof was submitted in support of this third motion. The trial court granted the State’s motion and admitted Mr. Shelton’s prior testimony at tri al p urs uan t t o Te nne ss ee R ul e of Evi den ce 8 04( b)( 1). In pertinent part, that rule provides that

a witness’s prior testimony at another hearing in the same proceeding is not excluded bythe hearsay ruleif (1) the witness is “unavailable” and (2) t he party agains t whom the t

estimony is substan

tively offered had both an opportunity and a similar motive to develop the unavailable witness’s testimony by direct, cr

oss, or redirect examination. SeeTenn. R. Evid. 804(b)(1).

The Defendant now contends tha t the trial court’s admission of Mr. Shelton’s prior testimony

as substan tive evi dence at his trial violated his constitutional rights to confront his accusers. See U.S. Const. amend. VI (“I n all criminal prosecutions, the accused shall enjoy the right . . . to b e confronted

with the w itnesses a

gainst h im . . . .”) ; Tenn. Con st. art. I , § 9 (“Th at in all crimina l prosecu tions, the accused hath

the right . . . to meet the witnesses face to face . . . .”). The Defendant argues that Mr. Shelton was available by the time the trial was actually held on January 8, 2001, and that the Sta

te “filed it s third moti on to decl are the witness un availab le beca use it would have been troubles ome to bring

the witne ss from

Germany f

or the purpose of testify

ing.” The State responds th at th e t ri al co ur t a ct ed co rr ec tl y.

Our supreme court ha s declar

ed that the same sta

ndards a nd crite ria appl y to boththe United States and Tennessee Constitutions’ rights of confrontation. See State v. Causby , 706 S.W.2d 628, 631 (Tenn. 1986). Both

prov ision s “re strict[] the rang e of admi ssible he arsay in two way s. First, the admission of the hearsay testimony must be n eces sary, i.e., the declarant must be unavailable. Second, once the declarant is shown to be unavailable, some indicia of reliability must be shown.” Id. 2 With respe ct to the f irst prong , “it must

be shown that

the [witne ss] whose pr

ior testimo ny i s offered at trial istruly

‘unavailable’ after a g ood faith effort by the prosecutorial authorities to obtain his [orher] presence.” State v. A rnold , 719 S.W.2d 543, 548 (Tenn. Crim. App. 1986). See al s o Tenn. R. E

vid. 804(a

)(5) (“ ‘Unava

ilability of a witne ss’ includes situations in which the declarant

. . . [i]s absent from the hearing and the proponent of a statement ha s been unable to procure the declarant’s attendance by process[.]”) Proof of the witness’s unavailability must consist of more than the prosecutor’s own statements to the court. See State v. Armes , 607 S.W.2d 234, 237 (Tenn. 1980). We will uphold

the trial court’s determin ation tha t a witnes s is unava

ilable absent a n abuse of discretion. See Hicks v. St ate , 490 S.W.2d 174, 179 (Tenn. Crim. App. 1972).

Under the facts and circumstances of this case, we conclude that the trial court did not abu se its discretion in declaring Mr. Shelton to be unavailable for the Defendant’s trial on January 8, 2001. Alth ough the record before us contains no additional proof in support of the State’s third motion, the first two motions were accompanied by letters from Mr. Shelton’s commanding officer indicating the difficulties with securing Mr. Sh elton’s a ttendanc e at tria

l. The sec ond lette

r from Ca

ptain3 We note that the Causby court adopted Fed eral Rule of Evidence 804(b)(1) as a statement of the ( then) current

law in Tennessee for the adm issibility of prio r testimo ny. See State v. Causby , 706 S.W .2d at 631. As quoted by the Causby court, the fede ral rul e and Tenn esse e’s pres ent hears ay ex cepti on for prio r testimo ny are su bstan tively iden tical. Comp are id. with Tenn. R. Evid. 804(b )(1).

4 The Defendant does not argue that he lacked ei therthe opportunity or a si milar motive to cross- examine Mr. Shel ton at the pr ior hea rings. Cf. Tenn. R. Evid. 804(b )( 1). As set for th a bove, the Defenda nt w as r epres ente d by counsel at both hearings an d defense counsel cro ss-examined M r. Shelton at bo th hearings. The examinations focused

on Mr. Shelton’s identi ficati on of the Defendant. Ind eed, the sup pression hearing was hel d in response to the De fenda nt’s pre-tri al motion to suppress Mr. Shelton’s i dentifi cations of the D efend ant. W e con clude that the issue s in the prior proceedings were suf fici entl y si milar

to th ose at t

rial that a simi lar motive f

or cross- examination exi sted, so as to satisf y the prerequistes of admissibility under Tennessee Rule of Evidence 804 (b)(1). See State v. Curti s Lee Majo rs , No. 01C01- 9602 -CR-00076, 1997 Tenn. Crim. App. LEXIS 732, at *14-15 (Nashvi lle, July 30, 1997) (holdi ng that former testimo ny was p rop erly ad mitted unde r Rule 804(b)(1) where the ultimate issue i n question at preli minary hearing and trial was wh ether the defen dan t was the p erson who c omm itted the ro bbe ry).

-5- Watson indicates that Mr. Shelton was scheduled to be in Kosovo through October 2000. The prosecuting attorne

y’ s repre sentation s i n the third motion, though unsubstantiated, are consistent withthe inference in Captain Watson’s second le tter that Mr. Shelton would be returning to Germany after his tour of duty in Kosovo. G ermany is without

the trial court’s subpoena power. See Tenn. R. Crim. P. 17(e) (“ A subpoena re quiring the attendance of a witness at a he aring or trial may be served any place within the

state .”) (em

p hasi s added). The trial court had already continued the Defendant’s trial nume

rous times

. We find no abuse of discretion in the trial court’s determination that Mr. Shelto n was, again, unavaila ble for tr ial in January 2001. This issue is, accordingly, without merit.

We turn no w to the seco nd prong of the admissibility of he arsay state ments vis a vis the Confronta

tion Clause : that the proffered statements contain some indicia of reliability

. See State

v. Causby , 706 S.W.2d a t 631. “The indicia

of relia bility require ment is met by those hear say exceptions resting upon such solid foundations that admission of virtually any evidence within them comports with the right of confrontation.” Id. Our supreme court has concluded that “the for mer testimonyexception to the hearsay rule rests upon sucha solid foundation.” Id. 3 Accordingly , once the trial court

determined Mr. Shelton to be unavailable, his prior sworn testimony at the preliminary hearing and the suppression hearing became a dmissible as substantive evidence at the Defendant’s trial. See id. The Def

endant’ s challe

nge to th e trial c ourt’s ru

ling on th

e admissib il it y of Mr. Shelton’sprior tes timony is theref ore witho ut merit. 4
The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE