### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Ja nua ry 23, 200 8 S es sio n

STATE OF TENNESS EE v . MARTHA ANN FREEMAN AND



### RA FA EL D EJESU S R OCH A- PE REZ

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2005-C- 2044 J. Randall Wyatt, Jr ., Judge

No. M2006- 02751-CCA -R3-C D - F iled Marc h 28, 2008

A Da v i d s o nC o u n t y

j u ry co n v i ct edt h e D ef

en d an t s , M ar t h a A n nFr ee m an an d R afael De J esus RochaPerez, of the f

irst-deg ree mur d er o f Martha F ree man’s husband. O n appea l, Fre eman a lleg es that the trial cour

t erre d by : (1) admitting a nude photogra p h of Rocha- Perez; (2) re fusing to allow Fr eema n to play a re cordingof a 911 c all; and (3) r efusingto g rant her m otion to sever

. Rocha-Per ez alleg es t he trial c ourt err ed by allowing a police of

fice r to testify

conce rning a stateme nt Fre eman made in violati o n o f t h e Confrontation Clause. B oth Defe ndants alleg e ther e wa s insufficient evidenc e to support their c onvictions. After a thoroug h revie w of the rec ord and a pplicable law , we
a ff ir m th e jud g me nts of

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the cour t, in which D AVI D H. W EL L ES and T H O M A S T. W O O D A LL , J J ., joined.

Richard Mc Gee and Glenn F unk, Na s h v i l l e, Tennessee , for the A ppellant, Martha

Ann Fr eema

n. Peter J. Strianse and Ana Esc obar, N ashville, Tenne ssee f or the Appe llant, Rafae l DeJesus RochaPerez.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt er; Mic ha e l E . M oo re , So lic ito r G e ne ra l; B e nja min A. Ball , Ass ist ant A tto rn e y Ge ne ra l; V ic tor

S. Joh ns on , I I I , D ist

ri c t A tto rn e y

Ge ne ra l; Katrin Miller a

nd J

. W

. Hupp, Assi stant District Attorney s Gene ral, for the Appellee , State of Tenne ssee.

OP IN ION I. F acts A. P r e -t r ialM ot ion s

The De fenda

nts were indicted on cha

rg es of f irst-deg ree preme ditated murder of F ree man’sJef f r ey Fr eeman, t he vi ct i m, wi l l be r ef er r ed t o as “ t he vi ct i m. ” M ar t ha A nn Fr eeman wi l l be r ef er r ed t o as 1
“F re e m a n .”

2 hu sb and , Jef

fr e y F re eman. Pr ior

to t ri a l, t he tr ia l c ourt

he ard te sti mony

c on c e rn inga

mot ion to 1 allow Fr eema

n to introduce the ta

pe of a 911 call and a

motion to s ever

the Def endants’ tr ials. At that hear ing, Ra eg ene B ever ly testified that she lived a cross the stre et from the F ree mans in 2005. On the af ternoon of A

pril 11, 2005, she hea

rd pounding at her f

ront door. B ever ly

opened he r fr ont door, and F ree man enter ed her house. Wit hout looking Be verly in the ey e, F ree man stated “ A man killed my husband.” B ever ly

asked if she had ca lled 911, to which Fr eema n responde d, “No.” Be verly turned, picke d up her c ell phone, and dia led 911. While Beve rly talked to t he oper ator, Fr eema n “just st[ ood] t here .” The operator asked Be verly a few questions until Be verly handed the phone to Fr eema

n. Fr eema

n did not respond to the oper ator’s que stions, so Be verly then took back the phone.

I n descr ibing Fr eema

n’s demea

nor, B ever ly

stated that she wa s “somewhat stern” a nd was not crying; B ever ly never g ave Fre eman any tissues. Fr eema n simply sat down on B ever ly ’s interior steps. Relaying a

nswers throug h Be verly , Fr eema n stated she knew the man who killed her husba nd and that her

husband had “ found him.” Bever ly told the operator that Free man did not know if the man was still inside her house.

On cr oss-examination, Beve rly stated she ha d not been in the F ree mans’ house ve ry often. She de sc ri be d th e m a s f

ri e nd ly ne ighbors, and

the y wo uld of te n ta lk i n th e y ard . B e ve rl y a lso testified that some we eks prior to the he aringshe ca lled Fr eema n’s attorney

to chec k on Fr eema

n’s mental hea lth out of “conc ern[] for her we lfare .”

Kar en Ne al testified that she also lived ac ross the stree t from the F ree mans. Nea l stated that she wa s up at 7:45 a.m. on the morning of April 11, 2005. As she was prepa ring for wor

k, she saw Fr eema n, who appe are d to be alone, standing on her front porch with a cig are tte in he r hand. N eal testified that Fr eema

n was “ very

still ” and “ rathe r unusual,” a nd Nea l was conc erne d that she mig ht need he lp.

On cr oss-examination, Neal st ated that she would not have noticed if someone w as looking out the door or wi n d o w at Fr ee m an. S he did not know her observations were importa nt until s he discussed it with another ne ighbor , who sug g ested she c all the police. On r edire ct-e x am in a tion, Neal clar ified that F ree man was not “in di stress or a panic or cr y ing” but “emotionless” and “ zoned out.”

L ori Estridg e, a Walg ree ns pharmac ist, testified that sh e wa s a cu stodian of re cords at Walgr eens. Estridg e stated that a technic ian filled a pr escr iption for Fr eema n on April 10, 2005, at 10:01 p.m. under her supervision. Estridg e initialed the sale. Estridg e further descr ibed some of the medications F ree man had f illed at Walgr eens a

nd the ef fec ts they may have on a

person.

Tara Cantrell test i fi ed she wa s employ ed at the F ree mans’ compa ny , Resi-Fax , for thre e y e ars . A lth ou g h F re e man w a s not at the bu sin e ss day -t o- da y , the vic tim wa s. He us ua lly c a me int o3

work a round 8:00 a.m. and w as there when Cantre ll left at 5:00 p.m. Cantrell testified that she

rec eived a phone call from Fr eema n betwee n 8:00 a

nd 8:30 a .m. on the morning of April 11, 2005. Fr eema n told her that the victim would not be at wor k that day due to illness. Free man was not upset

or cr y ing, a nd she sounded “ normal.”

I n a su bs e qu e nt h e ari ngon

the mot ion, Beverl y was re c a lle d a nd qu e sti on e d. B e ve rl y te sti fi e d that F re e man c ou ld be de sc ri be d a s “ sh a kin g ,” “ pa nic kin g ,” and “ sc are d” whe n s he first enter ed B ever ly ’s house. On c ross-examination, Be verly stated that she sa

w nothing to indicate that Fr eema n had bee n held hos tag e. F rom Fr eema n’s ac tions, it appea

red to B ever ly

that the incident had just taken plac e.
By written orde r, the trial c ourt found th at t h e re co rd ing of the 911 ca ll should not be admitted at trial as it was he arsa y not falling under any

exception, specifica lly

the excited utteranc e exception. See Tenn. R. Evid. 803(2). Elaborating on that finding
, the cour t stated that “the a ctions by the Def endant F ree man, coupled w ith the substantial tim e interva l betwee n the victim’s death a nd the 911 ca ll, do not support the notion t hat her statements were spontane ous and log ically sprung from the stre ss of her husband’s murder.” The trial court next found that the def endants should not h a v e th e ir tr ia ls s e v e r e d b e c a u s e F r e e ma

n h a s n o t s h o w n “ c o mp e ll in g p r e ju d ic e , ” and the Def endants’ de fense s are not “irre concilable .” Additionally , Fr eema n made no showingthat RochaPe re z wo uld

te sti fy fo r he r if the ir tr ia ls we re se ve re d. I n a se pa ra te wr itt e n o rd e r, the tr ia l c ourt a lso denied Rocha -Pere z’s moti on for se vera nce f or similar rea sons.

B. Trial

At the tr ia l on

the c ha rg e s o f m ur de r, the fo llo wi ng e vid e nc e wa s p re se nte d: R a e g e ne B e ve rl y testified that s he was the Free mans’ neighbor and had been since 2000. S he and he r husband lived

acr oss the street f

rom the F ree mans, and she would, on occa sion, take ca re of the Fr eema

ns’ dog and hamsters. Beve rly stated t hat s he also worke d for Martha Free man at her home per forming computer i np u tfo r h er

b u s i n es s

. I n2 0 0 3 o r 20 0 4
, t h e F re em an s ’ b u s i n es s , R es i -F ax , h adgro wn l ar ge e n o u gh to move from the F ree mans’ home to a location in Br entwood. At that point, the victim left his job to run Resi-Fax full time.

Be verly testified that, i n September of 2004, she noticed that Fre eman’ s car was no long er
a t th e Fr e e mans ’ h ou se . F or so me mon ths sh e did

no t se e F re e man, un til Sup e rb ow l Sund a y in Janu ary 20 05

. B e ve rl y state d sh e la st sa w the vic tim in the ir y ard on Ap ri l 9, 20 05 , s tand ingwi th Fr eema n. Be verly

did not notice any

thing pe culiar a

bout the way

they wer e ac ting.

The followingMonday , April 11, 2005, Be verly opened her front door to Fre eman, who w as “pounding ” on it

. Fr eema n enter ed Beve rly ’s hous e and said something to B ever ly , which prompted Be verly to c all 911. Be verly spoke to the 911 operator for a period of time, a nd then she g ave the phone to Fr eema

n. Fr eema

n then g ave t h e phone bac k to Be verly who continued to spea

k to the operator. A short time later, e merg ency vehicles a

rrived at the scene

. Be verly stated she ne ver sa w any one run f

rom the F ree mans’ house dur ing this per iod of time.4

On cr oss-examination by

Fr eema n’s attorne y , Be verly

testified that s he and Fre eman we re friends, but the y did not socialize on a wee kly basis. Be verly rec alled that Fr eema n ’s m o t h er, Marg are t Coc krill, move d in w ith the Fr eema ns afte r Be verly quit working there . Fr eema n car ed for Cockrill until her death. B ever ly stated that whe n she saw F ree man on Superbowl Sunday she

o ff er ed to begin taking walks with Fr eema n. That did not occur , howeve r, and she did not see F re e man mu c h mo re . Be ve rl y did state that two we e ks a ft e r t he Sup e rb ow l, F re e man e xpla ine d to her that she was on medic atio n

. Be v er l y further testified that Fr eema

n was “ shaking ” whe n she enter ed the house on April 11, 2005. Be verly assumed she w as scar ed. Fr eema n acte d as if she w as “panic king” and “a

nx ious,” and it appe are d as if she w as “in shock.”

On cr oss-examination by Rocha-Per ez’s attorney , Be verly stated she c ame to know Ta ra a nd Anthony Cantrell t h ro u gh Fr eema n’s business. Anthony

Cantrell would per form odd jobs at the Fr eema n residenc e. B ever ly

testified that s h e d i d not see Anthony Cantrell in or ar ound the Fr eema ns’ re sidence the wee kend of A pril 10 and 11, 2005.

On re direc t-examination, Beve rly descr ibed Fr eema

n’s behavior furthe r. She stated that she

never saw F ree man cr

y , so she neve r off

ere d her a Kleenex

. Fr ee m an’s be havior “ calmed dow n” afte r the initial moments.

Br ian Hampton, a firef

ighte r, t estified that he and his company wer e called to respond to the Fr eema ns’ re sidence in r esponse to a “potential[ly ] ex pired pe rson.” When they arr ived, Fr eema

n exit ed fr om a house a cross the stre et. She “a ppear ed to be cry

ing and hy sterica l and she did make it k no wn tha t sh e wa s a

re sid e nt i n the ho us e .” Ha mpt on be g an q ue sti on ingF re e man a

bo ut b a sic information. He a sked F ree man when the incident occ u rr ed an d “s he nodded y es” or “what [ he] consider to be a y es” to “ twenty to thirty minutes.”

I n descr ibing f

urther F ree man’s st ate, Hampton said she wa s “excited,” “ ag itated,” “ cry ing,”

“ fl a ili ng a bo ut wi th h e r h and s and

that so rt of thi ng .” “ She a

pp e are d to be up se t and

wa s in a hig hly

e xcit a ble state .” An

ho ur la te r, sh e wa s “ c a lm. ” Whe n Ha mpt on e nte re d the ho us e , he
, a lon g wi th medical pe rsonnel, discove red the victim’s body

. The victim ha d water dripping off his body , but “lividity had set up.” The victim “a ppear ed to have been there for a long time.” Rigor ha d alre ady be g un , “ wh ic h ta

ke s a c e rt a in num

be r o f h ours to o c c ur .” Ha mpt on de sc ri be d th e bo dy

a s ly ingin a slee ping ba g , partially

zipped. There w as a pla stic bag over the victi m ’s h ea d , and the ba g was “tied or ta ped.” H ampton did not notice any blood, a nd he deter

mined that the vicitm was dea d and not goingto be re vived.

Ka re n K ir by te sti fi e d th a t, o n Apr il 1 1, 20 05
, aro un d 3:3 0 or 3:4 5 p .m. , s he saw a Hi sp a nic

man run t h ro u gh her ne ighbor hood. He wa s running from a w ooded ar ea into a house under construction. Kirby

descr ibed the man a s having shoulder-le ng th hair, we aring shorts to his knees and a ma roon tee -shirt., and in cour t she identified this man as Rocha- Perez. I mmediately afte r she saw him run i nto th e h o u s e , s h e s aw p o li c e c ar s dr iv in g u p I n c li n e D r iv e , th e s tr e e t w h e r e the Fr eema ns live. L ater , Kirby

told the police what she saw.5

Serg eant Da

nny Colli ns, with the Metropolitan Police Depa rtment, testified that he w as dir e c te d to I nc lin e Dr ive to be g in his inv e sti g a tio n. Col lin s st a te d th a t K ir by ’s hu sb and

fl a g g e d h im d o w n w i t h i n f

o r m a t i o n a b o u t a H i s p an i c m anw h o h a d

r u ni n t o a h o u s e

. O ni n f

o r m a t i o nf r o m K i r b y, Colli ns and anothe r office r enter ed a residenc e on Palomar Court a t approxim ately

6:20 p.m., and they encounte red two indivi duals. These individuals were a ppare ntly examining the house a

nd building proc edure s, and t h ey told the office rs they hear d something upstair s. The off icer s beg an clea ring the house a

nd ultimately

found Rocha- Perez in the attic ra fters.

Offic er Joseph Hig h testified that he wa s the first pol i ce o ff i ce r to arr ive at the F ree man residence o n Ap ri l 1 1
, 2005. He wa ited for other office rs to arr ive, and, whe n they did, they

sear ched the residenc e. The y discovere d the victim, who had no sig ns of life, on th e master b at h ro o m fl o o r i na s l ee p i n g b ag.

Offic er Hig h also explained how he re sponded to a house on Palomar Court with Serg eant Colli ns and Off

icer Hinkle. Serg eant Collins a nd Offic er Hinkle went inside the re sidence to clear it w hil e Of

fi c e r H ig h r e ma ine d at th e ba c k d oo r to pr e ve nt a ny on e fr om e sc a

pin g . Within

min ute s, Offic er Hig h hear d Serg eant Colli ns and Offic er Hinkle y elling in Spanish and Engl i s h t o “show y our hands.” Offic er H igh r an up to w h ere the others w ere and aide d in arre sting the suspe ct by handcuf fing , sear ching , and plac ing him in the patr ol car

. Tony Cantrell testified that he w as fr iends with Mr. and Mrs. F ree man, and he worke d for Fr eema n, clea ning the house and r

unning he r er

rands. He stated he also knew Rocha-Per ez, but Tony Cantrell indicated that Roc ha-Per ez’s hair was shorter than he reme mbere d. Cantrell testified that in Dece mber 2004 Fr eema n reque sted he c ome to the Candlewood Suites in Br entwood to pickup Rocha-Per ez. She asked Cantrell to take Rocha-Per ez to Murfre esboro and provide d him a map. Cantrell neve r discussed this trip with the victim.

Cantrell furthe r testified that o n T h u rs day , April 7, 2005, he wa s working at the F ree man residenc e rese aling their back de ck. He was una ble to finish the job beca

use of r ain, so he lef

t the house. He did not return until Monday , April 11, 2005. When h e ar ri v ed
, an office r aske d that Cantrell take him to wher e Rocha -Pere z li ved in Murfr eesbor o, which he did.

On c ro ss- e xami natio n b y

Roc ha -P e re z’s a tto rn e y , Ca ntr e ll t e sti fi e d th a t he me t F re e man in 2001 when he was pe rfor

ming odd jobs f

or a neig hbor, Ms. Nea l. Cantrell stated that, at that time, he wa s working for a

wre cker s er v i ce an d clea ning r esidenc es on the side. Cantre ll cleane d F re e ma n’ s w i n d o w s , p a i n t e d t h e w i n d o w s , an d c l e an e d t h e g ar a g e

. C an t r e l l a l s o d e s c r i b e d his ina bil ity to f ini shre sta ini ngthe de c k o n Apr il 7 , a nd he state d th a t he tol d F re e man an d th e vic tim that he would re turn Monday , April 11, to finish the job. Eventually , Cantrell l ea rned about F re e man’ s h ome bu sin e ss a nd that sh e ne e de d s ome he lp. Cantr e ll s ug g e ste d h is w if e , T ara Cantr e ll, and F ree man hired he r.

T o n y C an t re l l fu rt h er t es t i fi ed t h at i n2 0 0 1 -2 0 0 2
, h e a l s o h el p edFr ee m an b y “b ab y s i t t i n g” her e lderly

mother whe n the Fr eema

ns went out of town. Cantre ll stated he did not know if Fr eema n6

ever chec ked his bac kg round, but he a dmitted in court to a conviction of possession with t he intent to distribute more than five g rams of coca ine in 1996. Cantrell testified that F ree man re mained at the extended-stay hotel for about six months. She sometimes reque sted that he run e rra nds for he r wh ile sh e wa s at th e ho te l, i nc lud ingtakin g he r t o th e AT M. Cantr e ll s ta te d th a t it wa s h is impression that the relationship betwe en F ree man and Rocha -Pere z was coming to an end whe n she called f or him to retrieve Rocha-Per ez. When he arrived to g et Rocha- Perez, Fr eema n had pac ked up all of his belong ings, a nd Cantrell left for

Murfre esboro. F ree man instructed him to st op at an ATM and take from her acc ount $100.00 for Rocha-Pere z. C antre ll stated that he wa s closer f riends with Fre eman than the victim, and he neve r disclosed to the victim that Fr eema n was stay

ing at an extended-stay

hotel with Rocha-Per ez.

On re -direc t examination, C antre ll testified that he was not a war e that a re lationship between Fr eema n and Rocha -Pere z had restar ted af ter he took Roc ha-Per ez to Murfre esboro. Cantrell furthe r explained that he planned on completing the deck-staining job on Monday , April 11, afte r his other job le t out a t 2:3 0 p. m. On c ro ss- e xami natio n b y

F re e man’ s atto rn e y , Ca

ntr e ll t e sti fi e d th a t he did not kill J eff

ery Fr eema n.

David Bixby , the manag er at the Candlewood Suites, testified that Fr eema n chec ked-in on Oc tob e r 1 2, 20 04 , a

nd c he c ke d- ou t on

Janu ary 29 , 2 00 5. B ixby

state d th a t Ro c ha -P e re z sta y e d in the ro om wi th F re e man, and on on e oc c a sio n he sa w the vic tim
, Jef

fr e y F re e man. Th e vic timc a me by the hotel and a sked to speak with Fr eema n. Bixby witnessed them mee t and talk in the lobby

. Scotty Dodd, the housekeeping supervisor at Candlewood Suites, testified that he knew of F re e man a

nd he r f e llo w gue st, Roc ha -P e re z. Do dd state d that Roc ha -P e re z wa s p re se nt e ve ry tim e he ser viced F ree man’s room. On c ros s -e x amination by Rocha-Per ez’s attorney , Dodd stated that F re e man w a s “ov e rl y fr ie nd ly ” and , a s su c h, he ke pt h is d ist anc e fr om h e r. Do dd fe lt unc omf

or ta ble around F ree man.

Detec tive J oseph Winter testified that he wa s assig ned the task of deter min i n g to which

a pa rtme nt C antr e ll t oo k Ro c ha -P e re z, and he loc a te d Ro c ha -P e re z’s a pa rtme nt. On

c ro ssexamination by

Fr eema n’s attorne y , Detec tive Wint er te stified that when he arr ived at the F ree man residenc e F ree man was the re. She le ft with Detec tive Cor co ra n t o gi v e a stateme nt at the Police Hea dquarte rs. She then re turned and assisted with the i nvestig ation. After they finished on t he nig ht of April 11, F ree man appa rently decide d not to stay

at the re sidence

.

Detec ti v e David Achord te stified that he executed a sear ch wa

rra nt of the Murfr eesbor o
a pa rtme nt o n Apr il 2 2, 20 05 . H e fo un d a ba g a t the re sid e nc e , ins ide wh ic h wa s F re e man’ s b us ine ss
car d. On cross-examination by Fr eema n’s attorne y , Detec tive Achor d stated that he a lso searc hed Fr eema n’s computer s for evidence
, including e-mails. Among the e- mails found betwee n Fr eema n and the victim, a number

contained the name “ Snookums.” One wa s dated Septembe r 7, 2004, and one January

20, 2005. Detec tive Achor d further testified that he perf ormed a walk-throug h of the residenc e. He stated that the victim’s ca r wa s found par

ked in the g ara g e with the g ara g e door closed; F ree man’s ca

r wa s found par

ked in the drive way . He a lso found some trash ba g s in the7

residenc e, one of

which conta ined a we t bath mat

. No trash ba g s were found in the victim’s ca r. Detec tive Achor d also discovere d an empty presc ription bottle in the residenc e for hy d ro co d one, issued on April 10, 2005, but he found no loose pills i n the house. He did, however , note a shotg un in a sepa rate bedroom, but he state d that they found no shotg un shells in the residenc e.

Detec tive Achor d testified that, subs eq uent to the initial investigation, he a ccompa nied F re e man to the po lic e pr e c inc t w he re F re e man v olu nta ri ly ans we re d q

ue sti on s. Af

te rw a rd s, Detec tive Achor d reque sted she re turn to the house to walk them throug h it. She voluntarily ag ree d to do so, and the wa lk-throug h was tape-re corde d. In addre ssing the Murfre ssboro sear ch, De tective Achor d stated that they

encounte red a woman named Be atrice Ruiz

. Ruiz spoke “pa ssable Eng lish” until Detective Ac hord attempted to e x plain the sea rch w arr ant proc ess; Ruiz then seeme d to have trouble under standing

.
Dr. Thomas D eer ing, a

n Assistant Medical Examiner wit h Metro Na shville, testified that he perf ormed a n autopsy on J eff

ery Fr eema

n on April 12, 2005. Dr. De eringexamined the 5' 7", 231 pound victim and found scra pes on the vi ctim’s head, bla nching of the skin ar ound the nec k, ligature

mark s aro un d th e wr ist s, a “ bla c k- e y e ,” and br uis ing and sc ra

pe s insi de the mouth. Th e vic tima lso had “multiple hemorr

hag es in his scalp,” blunt trauma to the head, and bruises on the fr ont of the left sh ou lde r a

nd le ft c he st. B a se d o n th e se inj ur ie s, Dr . D e e ri ngte sti fi e d th a t he de te rm ine d th e c a us e of death to be strang ulation, e ither from a ligature or hands. The injuries to the he ad and f ace wer e
no t su ff ic ie nt t o c a

us e de a th, bu t th e y

may hav e caus ed hi m to lo se c on sc iou sn e ss. Al tho ug h it

wo uld o n l y t a k e a m a t t e r o f s e c o n d s f o r a p e r s o n t o l o s e c o n s c i o u s n e s s b y s t r an g u l a t i o n, it w ou ld take “ sever al minutes” to kill someone. Dr. De eringtestified that, a l though the victim was found in wet clothes, ther e wa s nothing spec ific to say he was drow ned, and it wa s theoretica lly possible. Any blood present would have likely come f rom the victim’s “busted lip.”

Dr. De eringnext i dentified photog raphs taken at t he autopsy , specific ally of the lig ature marks and bruising on the neck and wrists. Dr. De eringidentified bruising and blanc h marks for the jury

. Significa

ntly
, Dr. Deering stated t hat t he li g ature marks on the wr ists happened be fore death. Br uising a round t h e wr i s t s means that the vic tim was bound while he wa s alive and he strug g led ag ainst the ties on his w rists. Additionally
, there wer e scra pes around the wrists indicating resistanc e ag ainst the bonds. Dr. De ering stated that the bruising around the ey e wa s sever e enoug h to require “moder ate” forc e or a

“pre tty g ood hit.”

I n atte mpt ingto e sti ma te the tim e of de a th, Dr . D e e ri nge xpla ine d th a t he c ou ld no t pr e c ise ly pinpoint the tim e. He did say , howeve r, that whe n the victim wa s found, lividity had set in, and he had a larg e blanch mark on his a bdomen from ly ing fac e down. This indicate d the victim had bee n dead f or a “ number of hour s” whe n he wa s found at 4:00 p.m. on April 11, 2005. Dee ring estimated that the vi ctim died “a

ny wher e fr om the eveningof 4/10 to ear ly in the morning on 4/11 . . . plus or minus probably

sever al hours.” When pr essed f or a more specific time, Dr. De eringstated that 10:00 p.m. on April 10 to 2:00 a.m. on April ll was the “best” he could do. The victim was definitely dead for at least eig ht hours befor e he w as found, “ may be ten, may

be twelve .” Dr. De eringtestified that a spot on the sl eeping bag in which the victim was found could be blood, as well as a spot nea r theIt a p p e a rs tha t t h e w itne ss w a s a c tua lly J o h n H o lli n s o f H o lli n s, W a g ste r, W e a the rly a n d R a b in. 2

8 s h o u l d er o f t h e t ee -s h i rt t h e v i ct i m wa s we ar i n g.

On cr oss-examination by Fr eema n’s attorney
, Dr. Deering testified t hat t he time of de ath was a roug h estimate, and it wa s possible that the victim died a ny time betwee n 6:00 p.m. on April 10 and 8:00 a.m. on Apr il 11. Dr. Dee ring estimated that the victim rec eived f our to seven blows to the he a d. Th e blo w t o th e e y e re qu ir e d mo de ra te fo rc e and

c ou ld h a ve be e n a c c omp lis he d wi th a fi st. The orbital bone s were not broken a round the e y e. The nose abr asion was also consistent with being hit wi th a fi st, a s w a s th e blo w to th e top of the he a d a

nd the on e to t

he fo re he a d. Any

on e of the se injuries could have cause d the victim to lose consciousness.

The lig ature marks ar ound the neck could have been cause d by a number of t hings, inc luding hands or shirt being pulled up around the neck. I n theory
, one could stop breathing, and the hea rt would continue to beat for a f ew minutes. Dr. D eer ing a g ree d that a number of sce narios posed by counsel c ould expl ain these injuries. F irst, the victim could have been hit , stunned, bound, and then strang led. Second, it was a lso possibl e that the injuries to the he ad could h ave been c aused a fter death. Third, the victim co u l d h ave be en held unde r water by the nec k. Dr. De eringtestified, howeve r, that while the third scena rio was theore tically possible, it wa s not as plausible bec ause the

wr ist mark s in dic a te the vic tim wa s sti ll a liv e , and on e wh o wi sh e s to dr ow n so me on e wo uld lik e ly wait unt il the heart stops or beats so slowly as t o be ineffec tive. Dr. Deering stated “c ountless” other

scena rios could also explain the facts. The doctor wa s unable to dete rmine how many attacke rs wer e involved in the killing.

On c ro ss- e xami natio n b y Roc ha -P e re z’s a tto rn e y , Dr

. De e ri ng te sti fi e d that the tim e of de a th

was a n estimate based mostly on the pi cture s taken at the s cene

. The bag found on the vi ctim’s head could have cau s e d

th e ma r k s o n h is n e c k an d c o u ld h a v e p la y e d a r o le in th e v ic ti m’ s d e a th

. T he marks on the wr ists were non- specific in that Dr. De eringcould not specific ally say what ty pe of ob je c t w a s u se d to tie up the vic tim

. Dr . De e ri ng a g re e d th a t a pe rs on c ou ld h anghim se lf

wi th m ild forc e.

On re direc t-examination, Dr. Dee ring testified that the “butt end” of a shotgun could also be used to inflict the victim’s injuries. Additionally , a pillowcase or some other cover ing pla ced ove r the victim might pre vent tear ing of the skin when hit.

JohnHo lla

nd s , a Na sh vil le a tto rn e y

wh o h and le s d ivo rc e c a se s, te sti fi e d th a t he me t w ith 2 the victim on Dece mber 29, 2004, to discuss leg al rights associate d with divorce. H ollands g ave the victim some init ial advice , but the victim never r eturne d.

L ori Estridg e, the Phar

macy Manag er at Walgre ens on Edmondson Pike in Nashville, testified that she was in c harg e of rec ords at that particula r Walgr eens. Estridg e testified that, ba sed

on reco rd s, F re e man p ur c ha se d a pr e sc ri pti on

on Ap ri l 10 , 2 00 5, at 10 :01 p. m. O n c ro ssexamination by

Fr eema n’s attorne y , Estridg e testified that the p rescription was for hydrocodone

.9

E s t r i d g e d e s c r i b e d

t h e m e d i c a t i o n s t h a tF r e e m anp u r c h a s e d a tW a l g r e e n s b e g i n n i n g i nJ an u a r y, 2005, until April 10, 2005: All eg ra, a n an t i h i s t amine; Alpra zolam, used to treat anxiety , and side eff ects include drowsiness par ticularly when take n with anti- depre ssants or pain killers; L exapro, used to treat depre ssion; L ipitor, used to treat c holesterol; Ambi en, a sleep induce r; Adac an, used to lower blood pre ssure; Ga bapentin, used to tre at seizures; Hy drocodone , a pain killer with a side

e ff e c t of dr ow sin e ss; bir

th co ntr ol pa tc he s; Te ma zep a m, use d as ins omn ia the ra py ; Eff e xor, an a nti

depre ssant; and Nitrolpurantin, an a ntibioti c.

On re direc t-examination, Estridge te stified that Fr eeman ’s only listed condition was hy perte nsion, and there wer e no m ed i ca tions on the list that would treat bi-polar disorder or
sc h iz o p h r e n ia

. O n r e c r o s s

- e xa mi n a ti o n , E s tr id g e te s ti f ie d th a t mo s t o f th e me d ic a tions were presc ribed by

Dr. Ny quist, a psy chiatrist. Estridg e noted that the hy drocodone presc ription was not presc ribed by

Dr. Nyquist.

Offic er G eorg e B outon testified that he investig ated the crime scene and photogr aphed the house. Off

icer Bouton noted that there was no e vidence of a f orce d entry , and he de scribed a number of photog raphs he took that were shown to the jury . Noted we re tra sh bag s in various locations, a shotgun, a

nd an Eng lish/S panish elec tronic translator.

Tara Cantrell testified that she is mar ried to Anthony

(“Tony”) Cantr ell, and they have thr ee
c hil dr e n. She me t th e F re e mans thr ou g h he r hus ba nd and the n w or ke d f or F re e man at th e ir

ho us e on I ncline Dr ive beg inning in September 2002. The business, Resi-Fax , outgr ew the r esidenc e and moved to an off

ice in B rentwood a

pproxi mately

one y ear later. O nce the busine s s m o v ed to the Br entwood l o ca t i o n, the victim beg an runningthe company . The victim usually came to work at 8:00 to 8:30 a.m., and he left work at 6:00 or 7:00 p.m. every night. He did not call in sick, and he

occa sionally

worke d on wee kends.

Cantrell testified that she was working the morning of April 11, 2005, when she rec eived a

c a ll fr om F re e man a t aro un d 8:3 0 or 9:0 0 a .m. She tol d Cantr e ll that the vic tim wa s “ ill and wo uld not be in that day .” Cantrell only later lear ned that the victim was dea d. Cantrell testified that she knew the F ree mans wer e having marital problems, a nd Fr eema

n told Cantrell that she had moved out of the house. Cantre ll stated that the victim alway s wore his we dding ba nd.

Cantrell furthe r testified that he r husband wa s at a mot orcycle meet in St. L ouis the wee kend of April 9-10, 2005. H e re turned home Sunday night, Apr il 10, at 11:00 p.m. Cantre ll identified a business car d of F ree man’s that the police discovere d at the apar tment in Murfre esboro. She state d that the handwr itten phone number on the car d was F ree man’s ce ll phone.

On cr oss-examinatio n b y Fr eema n’s attorne y , Cantrell ac knowledg ed that F ree man’s participation in the business dim inished from 2003 until 2 0 0 5

. Cantrell testified that she notice d “seve re ups a

nd downs” in F ree man’s b eh av i o r in 2004, and Cantre ll acknowledg ed picking -up a presc ription for F ree man on one oc casion. Cantrell also testified t hat, after the victim’s death, the business closed bec ause of his death and “ some other thing s, as well.”10

On cr oss-examination by

Rocha-Per ez’s attorney , Cantrell testified that, at some point, she beca me awa re that Fre eman moved out of the house a

nd into a hotel. Cantrell knew that her husband had bee n to the hotel, and h e reported to Cantre ll that a Hispanic man w as there with Fre eman. Cantre ll f u rth e r te s ti f

ie d a b o u t th e mo to r c y c le tr ip h e r h u s b an d to o k

. H e b e g an w a s hing the Fr eema ns’ dec k on Thursday , April 7, 2005, and he left for St. L ouis on Fr iday
, April 8, 2005. He returne d on Sunday

night, Apr il 10, 2005, at 11:00 p.m. C antre ll admitted, howe ver, that she was not with her husband dur ing this time.

Cantrell stated that, afte r the victim’s death, Fre eman a sked her to pick-up medication and bring it to the house. L ater , Fr eema n reque sted that she come to the house and cle an up the bathroom, which she did the wee kend of A pril 16-17, 2005.

Kar en Ne al, Free m an ’s n ei g hbor, testified that she w alked by one of he r windows at 7:45 a.m. on April 11, 2005, and noticed Fr eema n standing on her f

ront porch w ith a cig are tte in her ha nd. Fr eema n was not sm oking, and s he st ood motionless. Neal desc ribed F ree man as looking “odd” a nd as if “the re mig ht possibly be something wrong .” Ne al not i ced no one else a round F ree man. On

c ro ss- e xami natio n b y

F re e man’ s atto rn e y , Ne a l state d that sh e watc he d F re e man f or a pp ro xima te ly thirty seconds, a

nd Fr eema

n “appe are d to be staringdown.”

Hazel Fr eema

n, the victim’s mother, testified that he r son w ould usually call her once a wee k, usually on Sunday night around midnight easte rn standard time (11:00 p.m. centra l standard time). Th e nig ht o f A

pr il 1 0, sh e re c e ive d a pho ne c a ll fr om F re e man w ho e xpla ine d to he r t hat th e vic tim was “ ill.” Fre eman told her that she g ave the vict i m m ed i ca t i o n, and he ha d g one to bed. Ha zel Fr eema n did not detec t any

thing out of the ordinary

in Defe ndant Fr eema

n’s voice w hen they

spoke.

Next, by stipulation, t he State re ad into evidenc e a stipulation that stated: “it is stipulated that Marth a F r e e ma

n s ig n e d tw o ( 2 ) b u s in e s s d o c ume n ts o n Ju n e 2 4
, 2 0 0 5 , an d Ju ly 7 , 2005, acknow ledg ing that J ef

fr ey Fr eema n died on April 10, 2005. The sig ned stipulation, givingno further details, was a dmitted into evidence.

Offic er Will i am Ki rb y , with the identification unit, testified that he wa s assig ned to 5424 I ncline Dr ive on April 11, 2005, to pr ocess evidenc e. He showed the jury the bagfound ar ound the victim’s he ad, and he stated that he found the victim we t a nd ly ing on the tile d b at h ro o m fl oor. Offic er K irby

also discover ed a white plastic trash bag in the kitchen pantry with a silver ring inside. On the kit c he n f

loo r w a s a bl ack pl a sti c tr a shba g c on ta ini nga te le ph on e c or d a

nd la te x g lov e s. Of fi c e r Ki rb y fo un d in the up sta ir s ha llw ay ano the r b la c k p la sti c tr a shba g wi th a wh ite pla sti c tr a sh b a g i n s i d e ; i n s i d e o f

t h a tb a g h e f

o u n d a w e tb a t h m a tan d

a w e tp i l l o w c a s e t h a ta

p p e ar e d b l o o dy. The p il lo w c a s e ma

tc h e d o n e f

r o m th e ma s te r b e dr o o m. O f f ic e r K ir b y a ls o f o u n d a paper

sack containing six Play

boy , Penthouse, and Maxi m ma g azines. Stretched out in the foy er the y found a beac h towel. A lo n g-s l ee v ed g ray tee- shirt and a mattre ss were found in the closet of an upstairs bedroom (“ Be droom 2”). A lso in Bedr oom 2, Office r Kirby testified that they

found a plastic Tige r Marke t cup, t wo Dr

. P ep p er cans, one Coke ca n, and one Max im DVD. I n a third bedr oom (“B edroom 3” ) he f

ound a shotg un. I n discussing f inge rprints, Offic er K irby proce ssed the g un and11

soda ca n for late nt fing erpr ints, but none were discovere d.

On cr o s s -examination by Fr eema n’s attorne y , Offic er K irby testified that he a

rrived at the

scene at 4:15 p.m. and left betwee n 8:00 and 10:00 p.m. Office r Kirby stated that the shotg un was fo un d e mpt

y , a nd no sh e lls we re dis c ov e re d in the ho us e

. He re tur ne d to the ho us e on

F ri da y , Apr il 15, 2005, with another identification officer and Detective C orcor an. There
, they collecte d clothes on the floor of

Be droom 3 and additional items f rom the closet in B edroom 2. The y also collec ted vacuuming s and che cked f or additional latent finge rprints. Offic er K irby was told that all of this was done with the conse nt of Fr eema n.

On cr oss-examination by Rocha-Per ez’s attorney
, Of fi cer Kirby

testified that, as fa

r as he knew, the police did not “sec ure” the scene betwee n April 11 and April 15. Offic er K irby stated that he e xami ne d the sh otgun fo r la te nt pr int s bu t no ne we re fo un d – no t e ven par ti al prin ts. Ad dit ion a lly , h e state d th a t he did no t pr oc e ss the bla c k pla sti c ba g fr om the vic tim ’s he a d, the tr a sh bagbox es, or a

small TV-ra dio. He wa s n o t asked to proc ess the doorknob or doorhandle on the front door a

nd storm door. He also did not process the se curity sy stem control pad or

the bac kdoor for f inge rprints.

On re direc t-examination, Office r Kirby explained that he only

proce ssed the s o da ca

n and sh otgun fo r f ing e rp ri nts . M any tim e s, c ri me sc e ne s do n ot c on ta in f ing e rp ri nts fo r v ari ou s r e a so ns

. On re cross-e x amination by Fr e e ma n ’ s a tt o r n e y , O f f ic e r Kirby testified that they

remove d twenty -two items from the house on Apr il 11 and 15. When he re turned on April 15, the house did not look as if it h a d b e e n a lte re d in

any wa y . O ff ic e r K ir by adm it ted
, th ou gh, tha t he wa s n ot at th e ho us e betwee n April 11 and 15.

Of fi c e r S te ve Stone , a

n id e nti fi c a tio n o ff

ic e r, te sti fi e d th a t sm oo th, sli c k s ur fa c e s r e ta in fi ng e rp ri nts be tte r t

ha n p or ou s su

rf a c e s. Offi c e r S ton e a tte mpt e d to ob ta in f ing e rp ri nts fr om a number of obje cts in the house and te stified about those. He was u n ab l e t o lift prints from two banquet TVdinner boxes, a Hispanic Ma x im mag azine, one Play boy mag azine, a GQ mag azine, a TV g uide, three and one ha lf loaves of brea d, digital clock and radio, two TV remote controls, and a purple Game Boy

. Offic er St one was able to obtain “lifts” f rom a pa per plate on the bedside table, a plastic Tig er Ma

rt cup, a Penthouse mag azine, another Play boy m agazi ne, a D iet Coke ca n, and

a Ma xim DV D and DV D c ov e r. Of fi c e r Sto ne te sti fi e d that it wa s dif fi c ult to obtai n fi ngerpr ints from doorknobs as a g ener al rule. O n cross-e x amination by Rocha-Per ez’s attorney , Offic er Stone stated that he w as not asked to proce ss a ny of the plastic trash bag s or the tra sh bag box es found at the sce ne.

L inda Wils on, a fing erpr int ex aminer at the Metropolitan P olice Department, testified that she identified Rocha -Pere z’s finge rprints on a P lay boy mag azine, Penthouse mag azine, and a D r. Pepper c an. Additional fing erpr ints f o u n d at the sce ne we re a lso matched to F ree man. Wils on conclude d that no prints she ex amined came from someone other than Free man or Rocha-Per ez. On

cross-e x amination by Rocha-Per ez’s attorney , Wil son stated t hat s he was not give n to analy ze any of t he plasti c bags found at t he scene, including t he one found on the vi ctim’s head. She also was12

no t g iv e n to an a ly

ze th e v ic ti m’ s w a ll e t o r a p a ir o f late x g lo v e s

. M an y o f th e p rints lifted by the office rs lacke d sufficie nt detail to make an ide ntification.

Detec tive Br ad Corcor an, the lea d detec tive on this case , testified t hat he arr ived on t he sce ne
a t 4 :1 5 p

. m. o n th e a f

te r n o o n o f A p r il 1 1
, 2 0 0 5

. D e te c ti v e Co r c o r an d e s c r ibe d Fr eema n as “coope rative,” and she a llowed the police to searc h the hom e. When he first met Fr eema n she wa s “upset,” but that “ subsided quickly .” Fr eema n then beca

me “ver y matter of fac t” and a ssisted in the investigation. Detective Corc o ra n d es cr i b ed the sc ene a nd noted that the victim was found in a sle e pin g ba g wi th a

pla sti c ba g aro un d h is h e a d. He wa s still c lot he d, bu t his bod

y wa s we t. L ivi dit

y and rig or mortis had set in on the victim. Detec tive Corcora n discovere d a small amount of blood

aro un d th e vic tim ’s c oll ar b ut no ne any wh e re e lse on

his bo dy . H e fo un d b loo d o n a pil low c a se inside of a trash bag

. Detec tive Corcora n stated that “[i] t a

ppear ed to be the evide nce that was g oing to be thrown a

way afte r a c leanup.”

Detec tive Corcora

n testified that he did not reque st the trash bag found on the victim’s head be che cked f

or prints bec ause the bagwas we t, and wet thing s ar e n o t co nducive to che mical po wd e rs . F or

the same re a so n, he did

no t r e qu e st t

hat th e of fi c e rs c he c k th e tr a sh bags for pr int s. H e a l s o d e c i d e d

n o tt o t e s tt h e v i c t i m ’ s w a l l e t b e c a u s e t h e r e d i d n o ta p p e ar t o b e a r o b b e r y. Detec tive Corcora

n also sear ched a bag found at the scene that contained “ linge rie, pa nties, bustia’, and . .

. sexual ty

pe books.” The bagalso containe d a hotel re ceipt fr om the Renaissanc e Hotel a nd a Polaroid of Rocha -Pere z in t he nude. The police also found a computer that contained downloa ded p h o t o gra p h s of Rocha- Perez. Dete ctive Corcor an also discove red a came ra at the scene , which contained a

photo of the victim wea

ring a silver r ing that was found in a ba g at the sce ne.

Detec tive Corcora

n descr ibed the suspec ts’ questioning, spe cifica lly stating t h at offic ers place d Rocha-Per ez in a ten by ten room with his hands handcuf fed in the front. The room had no wi nd ow s and

thr e e or fo ur c ha ir s and

a ta ble. Onc e Ro cha- Pe re z wa s r e mov e d f ro m th e ro om, Fr eema n was take n in. Detec tive Corcora n testified:

Whe n Ms. F re e man wa s ent e ri ng the ro om, I ha d ac tua lly pu lle d the ta ble ba c k ju st a little bit. As she ente rs in, she cr osses the other side of the table and looks down and exclaims. She say s, very excitedly , what’s that doing here ? And I

looked down and ther e wa s a g old man’s we d d i n g b an d

. And I picked it up. And she sa id, that b e l o n g s t o J e f

f e r y.

Fr eema n was rele ased afte r questioning. Detec tive Corcora n then sent off

a number of items to the Tenne ssee B urea

u of I nvestig ation to be tested.

On cr o s s

- e xa mi n a ti o nb y F r e e ma n ’ s a tt o r n e y , D e te c ti v e Co r c o r ante s ti f ie d th a t w h e nhe

arr ive d at th e sc e ne F re e man w a s “ ve ry up se t” and

“ c ry ing .” Whe n h e ask ed if sh e wo uld

a c c omp any

him to t he pr e c inc t to ans we r q

ue sti on s, De te c tiv e Cor c or an wa s c on c e rn e d e no ug h to of fe r h e r a ri de . A ll o f t

he se a rc he s w e re ma de wi th F re e man’ s c on se nt, and sh e c on se nte d to fing erpr ints, blood t ests, and a w alk-throug h of the house. D etec tive Corcora n stated that no shotg un13

sh e lls we re e ve r d isc ov e re d in the ir se arc h o f t

he ho us e . T he y

did dis c ov e r, ho we ve r, an e mpt y presc ription bottl e for

Fr eema n filled on April 10, 2005. After outlining the items seized from the home, Dete ctive Corcor an stated that they did not find any

trash bag s in the victim’s vehicle similar to the ones found in the house. Detec tive Corcora n testified that, when Roc ha-Per ez was found, he

wa s w e ari nga

te e -s hir t th a t re a d, “ B oo m- B oo m’ s Bo xing Sc ho ol, Slu g g e rs fo r Cha nc e No t Chump s. East St. L ouis, Missouri.”

On cross-e x amination by Rocha-Per ez’s attorney , Detec tive Corcora n testified that the teesh ir t Ro c ha -P e re z wa s w e ari ng wa s purc ha se d at O ld N a vy . H e a dmi tte d th a t, a lth ou g h th e ho us e and cr ime scene did not appear to be alter ed, he did not know f or sure. Detec tive Corcora n viewed the video tape and ac knowledg ed t h at t h e t ape did not show Rocha-Pere z handling the r ing later found. He stated that he did not reque st the victim’s finge rnails be c lipped to chec k for e vidence

. I n addre ssing the c loset in which Rocha- Pere z s u p p o s edly lived, Detec tive Corcora n stated he initially believed that the mattress and c loset wer e st ag ed. He later l ear ned that Rocha -Pere z in fact had the “ run of the house ” for a number of hours e ach da

y

. Additionally
, he stated Rocha-Per ez was an illeg al alien.

On redire ct-e x amination, Detec tive Corcora n testified that Fr eema

n was not cr

y ing w hen he first approa ched he r, but she then be g an cr y ing. She only crie d for a “fe w m oments” and was then “ver y matter of f

act.” Fr eema

n did not appear

to be drug g ed, and the offe r to drive he r to the prec inct was a

“cour tesy ” bec ause she spoke of a “condition.” F ree man appe are d to be normal a nd coher ent when D etec tive Corcora n spoke to he r. Clarify

ing, D etec tive Corcora

n stated that RochaPerez was not on ca

mera while the police of

fice rs wer e not in the questi oning room; the came ra w as only turned on whe n he wa s with office rs.
Ag ent Donna N elson, a for ensic scie ntist wit h t h e T en n essee Bur eau of I nvestig ation, testified that she e x amined a f oam matt ress, a

shotgun, a

blanket, clothing , blood samples and vacuuming s. A pair of women’s panties indicate d the pre sence of F ree man’s DNA . A g ray tee- shirt also contained her DNA. A di ffe rent tee-shirt and ball cap matche d Rocha-Per ez. A pair of me n’s underw ear

contained Roc ha-Per ez’s DNA and the DN A of a n unidentified fe male. On the be ach to we l d i s co v er edat t h e s ce n e, Age n tNe l s o nd i s co v er edR o ch a- P er ez ’s s p er m an d M ar t h a F ree man’s DNA; it was po s s i b l e t h at s exual intercourse occur red on the towel. A pair of latex glove s had

“ de g ra de d DN A” ins uf

fi c ie nt to pe rf

or m te sts

. Ag e nt N e lso n s ta te d th a t a numbe r o f t

hin g s c ou ld deg rade DNA, includingwashing with pla in w ater , sun exposure, clea ning solution, dirt, incorre ct packa g ing, or

dusting for

fing erpr ints.

B a se d o n th is e vid e nc e , th e jur y fo un d b oth

De fe nd ants g uil ty

of fi rs t- de g re e mur de r. B oth Def enda n ts w e r e s e n te n c e d to li f

e in p r is o n

. I t is f

r o m th e s e ju d g me n ts th a t th e D e f e n d an ts now
a pp e a l.

II. Ana lys is

On appe al, Fr eema

n alleg es that the trial c ourt err ed in the following way s: (1) by admitting14

a nude photog raph of

Rocha-Per ez; (2) by

ref using to a llow Fr ee m an t o play a re cordingof a 911 call; and ( 3) by

ref using to g rant her motion to s ever . Rocha-Per ez alleg es the trial c ourt err ed by allowing a police office r to te stify about a statement Fr eema n made in violation of the Confrontation Clause

. B o th

D e f e n d an ts a ll e g e th e r e w a s in s u f f ic ie n t e v id e n c e to s u

p p o rt t h e ir c o n v ic ti o n s

. We will address both suffic iency of the e vidence claims tog ether and the r emaining claims in turn.

A. Suf fi ciency of the Evidence

When an accuse d challeng es the suff iciency of the e vidence , this Court’s standard of r eview is whether
, afte r considering the evidenc e in the lig ht most favorable to the State, “ anyrational trier of fa ct could have found the e ssential elements of the crime bey ond a re asonable doubt.” Jack son

v . V irg ini a , 44 3 U. S. 30 7, 31 9 (1 97 9) (e mph a si s i n o ri gin a l) ; see Te nn . R. Ap p. P. 1 3( e ); State v. Go od win , 1 4 3 S

. W

. 3 d

7 7 1
, 7 7 5 (T en n

. 2 0 0 4 ) ( ci t i n g Sta te v . R e id , 91 S.W .3d 247, 276 (Tenn. 2002)). This r

ule applies to f

indings of guilt based upon direc t evidence , circ umstantial evidence
, or a combination of bot h direc t and cir cumstantial evidenc e. Sta te v . P e nd e rg ra ss , 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

I n de te rm ini ng the su ff

ic ie nc y of the e vid e nc e , this Court sh ou ld not re -w e ig h o r r e -e va luate the evidenc e. St at e v. M atthe ws , 8 05 S.W. 2d

77 6, 77 9 ( Te nn . Cr im. Ap p. 19 90 ). No r m a y thi s Court substitut e it s infere nces for t hose drawn by the trier of fac t from the evide nce. State v. Buggs
, 99 5 S. W.2 d 1 02 , 1 05 (T e nn . 1 99 9) ; Lia k as v . S tat e , 286 S.W .2d 856, 859 (Tenn. 1956) . “Que stions

c on c e rn ingthe c re dib ili ty of wi tne sse s, the we ig ht an d va lue to be g ive n the e vid e nc e , as we ll a s a ll fac tual issues raised by

the evidenc e ar e re solved by the trier of

fac t.” State v. Bland , 958 S.W .2d 65 1, 65 9 ( Te nn . 1 99 7) ; Liakas , 286 S.W .2d at 859. “A guilty verdic t by the jury
, approve d by the trial judg e, ac cre dits the t estimony of t he witnesses for the State and resolves all conflicts in favor of the theor

y of the State.” State v. Cabbage
, 57 1 S.W. 2d 83 2, 83 5 (T e nn . 1 97 8) ; State v. Grac e , 493 S.W .2d 474, 476 (Tenn. 1973) . The Te nnessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound f oundation. The trial judg e and the jury see the witnesses fa ce to f

ace , hear their testimony

and obser

ve their de meanor

on the sta nd . T hu s th e tr ia l ju dg e and jur y are the pr ima

ry ins tr ume nta lity

of ju sti c e to deter mine the weig ht a

nd cre dibilit y to be g iven to the testimony of witnesses. In the trial forum alone is the re huma n atmosphere and the totality of the e vidence cannot be re produce d with a written re cord in this Court.

Bo lin v . S tat e , 4 0 5 S

. W

. 2 d

7 6 8
, 7 7 1 (T en n

. 1 9 6 6 ) ( ci t i n g Car ro ll v . S tat e , 370 S.W .2d 523 (Tenn. 1963)). This Court must affor d the State of Tenne ssee the strong est leg itimate vie w of the evidenc e contained in the r ecor d, as we ll as all rea sonable inferenc es which may be dra wn from the e vidence

. Go od win , 1 4 3 S

. W

. 3 d

at 7 7 5 (c i t i n g Sta te v . S

mi th
, 24 S.W .3d 274, 279 (Tenn. 2000)). Bec ause a verdic t of g uilt ag ainst a defe ndant remove s the presumption of innoce nce a nd raises a

presumption of g uil t, t he c on vic te d c ri min a l de fe nd ant be ars the burd e n of sho wi ng that the e vid e nc e wa s le g a lly insufficient to sustain a guilty verdic t. Sta te v . Ca rru the rs , 35 S.W .3d 516, 557-58 (Te nn. 2 0 0 0 ).15

“‘Circ umstantial evidence ’ diffe rs from dire ct evidenc e, and c onsists of proof of collater al fa c ts a nd c ir c ums tance s f

ro m w hic h th e e xiste nc e of the ma in f

a c t ma y be de du c e d a c c or din g to

rea son and common e x p er i en ce o f mankind.” W e bb v . S tat e , 203 S.W . 955, 955 (Tenn. 1918) ;

ac c or d B ish op v . S

tat e , 287 S.W .2d 49, 50 (Tenn. 1956). The Defenda nts argue, and we ag ree , that this case wa s based on c ircumstantial evidenc e.

A c on vic tio n may be ba se d e nti re ly on c ir c ums tanti a l e vid e nc e wh e re the fa c ts a re “ so c le a rl y interwoven an d co nnecte d that the fing er of g uilt is pointed unerr ingly at the De fenda

nt and the Def endant a lone.” Sta te v . S

mi th
, 868 S.W .2d 561, 569 (Tenn. 1993). Stated differ ently , “[B]efore

an ac cused ma

y be convic ted of a

criminal off

ense ba sed upon circ umstantial e v i d en ce al o n e, the fa c ts a nd c ir c ums tanc e s ‘ mus t be so str on g and cogent as to e xclu de e ve ry oth e r r e a so na

ble hy pothesis save the guilt of the defe ndant.” Sta tev . Crawf or d , 470 S.W .2d 610, 612 (1971). “ A

we b o f guil t mu st b e wo ve n a ro un d th e de fe nd ant f

ro m w hic h h e c ann ot e sc a pe and fr om w hic h f

a c ts and cir cumstance s the jury could dra w no other r easona

ble infere nce save the g uilt of the def endant bey ond a re asonable doubt.” Id. The jury decide s the weig ht to be g iven to circumstantial evide nce, and “[t]he infere nces to be drawn from such evidence, a nd the extent to which the circ umstances a re consistent with guilt and inconsistent w ith innoce nce, are questions pr imarily for the jur

y .” State v. Rice , 184 S.W .3d 646, 662 (Tenn. 2006) (citations omitted).

I n th e lig ht m os t f

a vo ra ble to the State , the fo llo wi nge vid e nc e wa s p re se nte d: t he De fe nd a nts beg an a r elationship in 2004. This relationship continued throug h o u t the fa ll and winter of 2004 afte r F ree man moved out of the ma rital home and into an ex tended stay hotel in Bre ntwood, wher e she stay ed with Rocha- Perez. On De cembe r 29, 2004, the victim spoke with a divorc e attorne y about his leg al rig hts, but it is unclear if Fr eema

n ever knew a bout this

. S o m et i m e i n Dec ember 20 04 , F re e man’ s fr ie nd , Ton y Cantr e ll, mov e d Roc ha -P e re z ou t of the e xten de d s tay ho te l and int o an apa rtment in Murfre esboro. Cantrell conclude d that the relationship betwe en the two had ende d. Sometime therea fter, F ree man re turned to t he marital home. Rocha- Perez and F ree man re started the relationship, and Rocha-Pere z moved into t he F ree man house without the v i cti m’s knowledg e. Roc ha -P e rez had th e “run o f t he ho us e ” wh ile the vic timwo rk e d lo ngho ur s at th e F re e mans ’ bu sin e ss.
Tony Cantrell bega

n work outsi de the Fr eema ns’ hom e on the Thursday , April 7. He did not finish beca

use of rain, and he advised the Fr eema ns that he planne d to return Monda y , April 11, afte r work, to finish. On Sunday , April 10, at 10:00 p.m., Fre eman picked up a pr escr iption for hy drocodone , a pain killer with a side eff ect of drowsiness. One hour later , at 11:00 p.m., Fre eman
c a lle d th e vic tim ’s mot

he r to e xpla in to he r that the vic tim wo uld no t be c a lli ng that nig ht b e c a us e he wa s “ill.” At 7:45 a.m. on April 11, a ne ighbor saw F ree man standing on her f ront porch w ith a cig are tte in hand. Fr eema n appea red “ very still ” and “ rathe r unusual.” Ashort time later, at 8:00

o r 8 : 3 0 a

. m

. , F r e e m anc a l l e d R e s i

- f a x t o r e p o rtt h a tt h e v i c t i m w o u l d n o tb e a tw o r

k t h a td ay.

At 3:4 5 p .m. , Ro c ha -P e re z wa s se e n r un nin g thr ou g h the ne ig hb or ho od and int o a ho us e under c onstruction. At 4:00 p.m. on April 11, Fre eman we nt t o h er neig hbor’s house, a nd the

ne ig hb or c a lle d 9 11 . Imme diate ly

a ft e r s he po un de d o n B e ve rl y ’s do or , F re e man a pp e are d to be “ in16

shock,” “p an i ck y , ” and “anxious.” A short time later, howe ver, F ree man was muc h calmer , and Be v e r ly r e c a ll e d th a t s h e n e v e r c r ie d

. T h e f ir s t e me r g e n c y r e s p o n d e r s ar r iv e d a t the sce ne and descr ibed Fr eema

n as “e x cited,” “ ag itated,” “cr y ing,” “fla iling about with he r hands and that sort of thi ng ,” and

“ hy ste ri c a l.” Whe n q

ue sti on e d, F re e m a

n i n d i c a te d th a t th e inc ide nt o nly oc c ur re d tw e nty to thirty minutes before the emer g ency responde rs ar

rived.

The police , firef

ighte rs , and medica l personnel discove red the victim’s body in the master bathroom. The vic tim was wet, i n s i d e o f a slee ping ba g , and on his stomach. Medic al testimony explained that cer

tain marks on the victim’s body indicated that he had been the re f or some time, at least over eig ht hours. There wer e additional mar ks o n t h e v i ct im’s wrists that would have be en made while he was still alive and able to strug g le ag ainst the re straints. There was e vidence of four to se ve n blo ws to the vic tim ’s he a d. Th e vic timwa s u lti ma te ly kil le d b y str angulatio n, wh ic h w ou ld have r equire d “seve ral minutes” of pressure

. Virtually no blood was found at the scene except for that under the bagaround the victim’s head.

The police found evid ence of a clea n-up also in the house. Anumber of tr ash bag s were discovere d conta i n i n g a we t pillow case, a wet bath mat, late x g loves, and a phone cor d. Additionally , a bea ch towel wa s discovere d sprea d out in the living room fl o o r, wh ich containe d Rocha-Per ez’s sperm and F ree man’s DNA . There was no e vidence of a forc ed entr y to the home.

At 6:30 p.m. on April 11, the police discove red, upon infor mation from witnesses, Rocha

Perez in the attic of a

house under

construction two stree ts from the Free mans’ home. The off icer s
arr ested Rocha -Pere z and took him to the police station whe re the y questioned him. L ater , in two separ ate business doc uments, Fre eman sig ned that the victim died on Apr il 10, 2005.

First deg ree mu rd er i s a premeditated a nd intentional killi ng of anothe r. T.C.A. § 39-13- 202(a) (1) ( 2006). The T ennesse e Code Annotated def ines preme ditation:

‘P re me dit a tio n’ is a

n a c t do ne a ft e r t

he e xer c ise of

re fl ect io n and

jud g me nt. ‘Premeditation’ me ans that the int ent to kill mus t have be en for med prior to the a ct itself. I t is not ne cessa

ry that the purpose to kill pre- exis t in the mind of the ac cused fo r a n y d e f

in it e p e r io d o f ti me

. T h e me n ta l s tate o f th e a c c u s e d a t the time the

acc used alleg edly

decide d to kill m ust be ca ref ully considere d in order to de termine wh e the r t he a c c us e d w a s su ff

ic ie ntl y fr e e fr om e xcit e me nt a

nd pa ssi on to b e c a pa ble of pre meditation.

T.C.A. § 39-13-202 ( d) (2006) . Additionally , the Tenne s s ee S u p re me Court found the following circ umstances suff

icient for supporting a finding of pre meditation: the use of a de adly wea pon on
an unar med victim; the pa

rticular crue lty of a killing; the def endant’ s threats or de clar ations of intent to kill; the def

endant’ s procur ement of a wea pon; any prepa rations to conce al the cr ime undertaken befor e the c rime is committed; destruction or sec retion of e vidence of the kil ling; and a def endant’ s calmness a fter a

killing. State v. Bland , 958 S.W .2d 651, 660 (Tenn. 1997) . Fur thermore , “evide nce of re peate d

blows is releva

nt to establish premeditation, althoug h this evidence alone is not sufficie nt17

to establish premeditation.” State v. Sims , 45 S.W .3d 1, 8 (Tenn. 2001)

.

I n our view, the evidenc e, while a lmost entire ly circ umstantial, supports both convictions for fi rst degree pre me dit a te d mu rd e r. We f

ir st a dd re ss t he “ int e nti on a l ki lli ng ” e le me nt. Th e Sta te pr e se nte d e vid e nc e tha

t th e vic timwa s ti e d u

p w hil e he wa s st ill a liv e , a nd he str ug g le d a g a ins t th os e
re str a int s. Th e vic timwa s u lti ma te ly kil le d, tho ug h, by

on e or bo th o f the De fe nd ants str ang lin g him

e ith e r b y the ha nd s o r a lig a tur e . T his woul d hav e take n s e ve ra l mi nu te s. Th is e vid e nc e a lon e is

su ff ic ie nt f or a ratio na l jur

y to c on c lud e be y on d a

re a so na ble do ub t th a t th e vic timwa s “ int e nti on a lly killed.”

Ne xt, w e a dd

re ss w he the r t

he re wa s su ff

ic ie nt e vid e nc e that e a c h d e fe nd ant k ill e d th e vic tim

. The State pre sented e vidence throug h the medica l examin er that the victim died sometime during the nig ht of April 10, to the m orning of April 11. Fr eema n later state d in business documents that the victim died on April 10, 2005. This indicates that F ree man knew w hen the victim was killed. The medic al examiner testified that the victim wa s 5' 7", w eig hed 231 lbs., and his hands we re tied prior to his death. This w ould suppor t a theory that the victim wa s either tied up at g unpoint or that one def endant he ld the victim down while the other tied his wr ists. Additi onall y , Fr eema n called the vic tim ’s mot

he r a t 11 :00 p. m. o n Apr il 1 0, 20 05 , to te ll h e r t he vic timwa s “ ill ” and

un a ble to c a ll that night. This supports an infe renc e that F ree man par ticipated in the killing a

nd attempted to cove r it up: Free man knew that the victim’s mother expected him to call at 11:00 p.m. central standar d time, and, if he did not, she might get suspicious or worried and contac t the police. I f the police wer e
no tif ie d, the ir a tte mpt s to c le an- up the mur de r wo uld be thw art e d. Simi larl y , F re e man c a lle d Re siFa x the nex t morning pr esumably in an attempt to g ain more time to dispose of the body and cle an up the sce ne.

F re e man a lso kn e w that T on y Cantr e ll wa s to re tur n to the ho us e on

the a ft e rn oo n o f A

pr il 11 . Ara tio na l jury

c ou ld c on c lud e that th e tw o D e fe nd ants re a lize d the y we re ru nn ingou t of

tim e to f inish the clea

n-up. The Def

endants split up, with Roc ha-Per ez g oing his ow n way and F ree man g oing to B ever ly ’s house to ca ll the police. Rocha- Perez was subseque ntly discovere d flee ing f

rom the scene of the crime. Finally
, there was no evidenc e of a forc ed entry

. These fac ts, taken tog ether
, support the jury ’s finding that both D efe ndants participated in the killing of the vic tim; we can se e no other re asonable hy

pothesis.

The De fenda

nts both arg ue that the f

acts c ould pote ntially

support a one killer

theory : one ind ivi du a l surp ri se s, hit s, and kn oc ks the vic timun c on sc ious. The ind ivi du a l th e n ti e s th e vic tim and strang les him. Taking only the evidenc e on the victim’s body , this scenar io might be plausible. Ho we ve r, c on sid e ri ng

the re st o f t

he e vid e nc e , w e fi nd

thi s sc e na

ri o unrea so na

ble . I t is hig hly unlikely that a sing le ki ller put the pillowcase on the victim’s head be fore knocking him unconscious if he wa s not bound first. I n our view, the binding must have occur red f irst, wh i ch wo uld have requ ire d tw o p e op le . A dd iti on a lly , b oth De fe nd ants ’ a c tio ns a ft e r t he kil lin g make thi s
unrea sonable: the c lean- up, th e p h o n e calls, R ocha- Perez’s flig ht from the sce ne, and F ree man’s indication that the murder occur red twe nty

to thirty minutes before the 911 ca ll.18

Finally , we a ddress whe ther the Defe ndants acte d with premeditation. One consideration a jury may use in that de termination is that the victim wa s killed with particular c ruelty
, see Bland , 958 S.W .2d at 660: the victim was bound, beaten about the he ad, an d s t rang led. The ma rks on the victim’s w rist indicate that the victim strugg led ag ainst his bonds before he wa s killed. This means t h a ts o m e p e r i o d

o f t i m e e l a p s e d a f t e r t h e y b o u n d t h e v i c t i m u n t i l h i s u l t i m a t e d e m i s e

. A d d i t i o n a l l y,
a rational jury

could have conclude d that Fr eema n was calm afte r t he kil ling: the victim was killed the nig ht of April 10, and F re em an ca l m l y called the victim’s mother to tell her he w as “ill.” Fr ee m an wa s s ee ns t an d i n g o nt h e f ro n tp o rc h h o l d i n g a ci gar et t e at7 : 4 5 a. m

. t h e f o l l o wi n g m o rn i n g,
and F re e man c a lle d Re si- F a x to a dv ise the m the vic tim wo uld no t be a t wo rk that day . M ultip le witnesses testified that F ree man went throug h periods of hy steria a nd calmness.

Additionally , we c onclude that the pr esenc e of the beac h towel at the s cene supports a finding of pre meditation. As the State argued at trial, and as the j ury was fr ee to de termine, the pr esenc e of the tow e l on the fl oo r co uld ind ic a te that the de fe nd ants ha d sex af te r t he y kil le d th e vic tim . T his

scena rio place s both Defe ndants at t he scene of the crime a nd provides cir cumstantial evidenc e that the Def endants we re be having calmly afte r killing the vic t i m , which fur ther supports a f

inding of pr e me dit a tio n. F ina lly , the e vid e nc e a t tria l show e d th a t Ro c ha -P e re z an d F re e man’ s r e la tio ns hip

wa s in tim a te , a

nd a jur y c ou ld have the re fo re c on c lud e d th a t th e y ha d a mot ive kil l th e vic tim . T he se fac ts, taken tog ether , support a finding of pre meditation for both Def endants.

Although the Def

endants stre nuously

argue that the we b of fa cts is not so tight so as t o not

a llo w a no the r r e a so na

ble hy po the sis , we dis a g re e . The re is s uf fi c ie nt e vid e nc e to s up po rt the fi rs t deg ree murder c onvictions for both Fr eema n and Rocha-Per ez. We c onclude that a “r ational trier of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt.” Jack son

v . V irg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; see Ten n. R. Ap p. P. 1 3( e ); Sta te v . G oo dwi n , 143 S.W .3d 7 7 1
, 7 7 5 (T en n

. 2 0 0 4 ) ( ci t i n g Sta te v . R e id
, 91 S.W .3d 247, 276 (Tenn. 2002) ). The D efe ndants are not entitled to relief on this issue.

B. Photo of Rocha-P ere z

Next, Fr eema

n argues t hat t he trial c ourt err ed in allowing the State to introduce a photogr aph of Rocha- Perez found in the Fr eema ns’ house. The photo is of Rocha-Per ez mostly nude, exhibiti ng his g e nit a lia . F re e man ar g ue s tha t the ph oto g ra ph is not re le va

nt, and , if re le va

nt, the re le va

nc e is not substantially outweig hed by the dang er of unfair pr ejudice or

confusion of the issues. See Tenn. R. Evid. 402, 403.

Under Rule 401, “‘Rele vant evidenc e’ me ans evide nce ha ving a ny ten dency to make the

e xiste nc e of any fa c t tha t is of c on se qu e nc e to the de te rm inatio n of the a c tio n mor e pr ob a ble or le ss pr ob a ble tha n it wo uld be wi tho ut t

he e vid e nc e .” Rul e 40 2 s ta te s, “ Al l r e lev ant evi den c e is admissible except as provided by the Constitut ion of the United States, th e C onstitut ion of T en n es s ee, the se rules, or other rule s or laws of g ener al application in the courts of Tenne ssee. Ev ide nc e wh ic h is no t r ele van t is no t a dmi ssi ble .” F ina lly , Ru le 40 3 s ta te s, “ Al tho ug h r e le va nt,

e vid e nc e may

be e xclu de d if

its pr ob a tiv e va lue is s ub sta nti a lly ou tw e ig he d by the da

ng e r o f u nf a ir19

pr e jud ic e , c on fu sio n o f t

he iss ue s, or mis le a din g the jur y , o r b y c on sid e ra

tio ns of un du e de lay , w a ste of tim e , o r n e e dle ss p re se ntatio n o f c umu la tiv e e vid e nc e .” “ Th e de c isi on re g ard ingthe a dmi ssi bil ity of photogr aphs pursuant to these Rules lies within the sound discretion of the tria l court and w ill not be over turned on a

ppeal a bsent a clear showing of an abuse of that discre tion.” State v. Y oung , 196 S

. W

. 3 d 8 5 , 1 0 5 (T en n

. 2 0 0 6 ) ( ci t i n g State v. Bank s , 564 S.W .2d 947, 949 (Tenn.1978) ).

First, we conclude that Fr eema n has not shown the trial cour t abused its discretion in finding the photog raph r eleva

nt. At issue was the killing of Fr eema n’s husband, a

nd the exist ence of an intimate relationship betwee n Fr eema n and Rocha -Pere z provides a motive for th at ki lling. The photogr aph helps prove the ex istence of the intimate relationship. Thus, t he photog raph is re levant under Rule 401 a

nd admissible under Rule 402.

Ne xt, w e c on clu de th at Fr e e man h a s n ot s ho wn that th e tr ia l c ourt

a bu se d it s d isc re tio n in concludingthat the probative value wa s substantially outweig hed by a “da

ng er of unfair pr ejudice, confusion of the issues, or misleading the jury
, or by considerations of undue delay , waste of time,

or ne e dle ss p re se ntatio n o f cumulativ e e vid e nc e .” F re e man a rgue s th a t th e ph oto g ra

phse rv e d to inflame the juror s and was c umulative beca use no one de nied the existence of a sexual relationship. After a re view of the photogr aph, we conclude it is m arg inally inflammatory . We ag ree with the trial court who stated, “it’s not as gra phic as y ou might thi nk it would be.” Additionally
, a mot ive for the kil lin g is v e ry

imp or tant t o th e c a se

. Th e a dd iti on a l f a c t th a t th e ph oto g ra

phwa s f ound in t he ho us e reinfor ces this point. We conclude that the trial court committed no abuse of disc retion in making the Rule 403 deter

mination, and, as such, F ree man is not entitled to relief on this issue.

C. 911 Tapes

Fr eema n next arg ues that the trial court err ed in pr eventing her from introducing a tape of the 911 call made from B ever ly ’s house. The trial court ruled the tape w as hea rsay not subject to any exception, and, t h u s , t h e t ri al cour t excluded the tape. See Tenn. R. Evid. 801, 802. Fr eema n initially challeng es the de termination that the tape i s n o t s u b j ec t to any

exception, arguing f

or the application of Rule 803( 2): the excited utteranc e exception. Alternatively , Fr eema n argues that the trial court’ s decision pre vented he r from asser ting a defe nse, in violation of Six th Amendment to the United States Constit ution. W e will first addre ss the excited utteranc e exception, which, as noted above, require s Fr eema

n to show that the trial cour t committed a clea

r abuse of discre tion. State v. Y oung , 196 S.W .3d 85, 105 (Tenn. 2006)

Gene rally , out of court state ments introduced to prove t h e t ru t h of the matter asser ted ar e inadmissible as hear say . Tenn. R. Evid. 801, 802. The excited utter ance exception allows hear say to be admitted when the statement is “ [a] statement relating to a startling e vent or c ondition made wh ile the de c lara

nt w a s und e r the str e ss of e xcit e me nt ca us e d by the e ve nt or c on dit ion .” Te nn . R. Ev id. 80 3( 2)

. Th e Te nn e sse e Sup re me Court ha s q uo te d th e ra

tio na le fo r a dmi tti ngsu c h s ta te me nts

a s f oll ow s:
First, since this ex ception applies to stateme nts where it is likely there was a

lack of20

re f l e c t i o n

- an d p o t e n t i a l f

a b r i c a t i o n

- b y a d e c l ar an t w h o s p o n t an e o u s l y e xc l a ims a state me nt i n r e sp on se to a n e xcit ing e ve nt, the re is l itt le lik e lih oo d, in t he or y a t le a st, of insincer ity

. . . . Second, ordina rily the statement is made w hile the memory of the event is still fr esh in the decla rant’s mind. This me ans that the out-of- court stateme nt

a bo ut a n e ve nt m ay

be mor e a c c ur a te tha

n a muc h late r i n- c ourt

de sc ri pti on

of it.

St ate v. Gordon , 952 S.W .2d 817, 819-20 (Te nn. 1997) (quoting Cohen, Paine & Sheppear d, Tenne ssee L aw of

Evidence , § 803(2).1 at 532 (3d ed.1995) ). Thus, the followingrequire ments are neede d: (1) “the re must be a startling ev ent or c ondition;” (2) the stateme nt [ must] ‘re late to’ the startling e vent or c ondition;” and (3) “the statement [must ] be made while the de clar ant is under the stress or e x citement fr om the event or condition.” Id

. at 820. “[T] he ultimate test is spont aneity and log ic a l r e la tio n to the ma in e ve nt a nd wh e re an a c t or

de c lara tio n s pr ing s o ut o f t

he tr ans a c tio n w hil e the pa rt ie s are st il l lab or ingun de r t he e xcit e me nt a

nd str a in o f t

he c ir c ums tanc e s a

nd a t a tim e so

n e ar it a s to p r e c lu d e th e id e a o f d e li b e r a ti o n an d f a b r ication.” Id

. (q u o t i n g Sta te v . S mi th , 857 S.W .2d 1, 9 (Tenn.)
, cert. de nied
, 5 10 U.S. 996 (1993)). We a re to c onsider the time interva l betwee n the event and the statement “and the nature and ser iousness of the eve nt or condition; the appea ranc e, beha

vior, outlook, and circ umstances of the dec lara nt, including suc h char acte ristics as

a g e and ph y sic a l or men ta l con dit ion ; and the c on te nts of the state me nt itse lf , w hic h ma

y ind ic a te the pre sence or abse nce of stress.” Id

.
After considera

tion of these fac tors, we conclude that Fr eema n has not shown the trial cour t abused its discre tion. Consi deringthe fa ct that the victim wa s killed dur ing the night of April 10, by Fr eema n’s own stateme nt, and Fr eema n did not make her st atement until roug hly 4:00 p.m. on Ap ri l 11
, th e time int e rv a l and the op po rt

un ity fo r f a br ic a tio n w e ig h s tr on g ly

a g a ins t th e sin c e ri ty of the stateme nt. Although there is a startling event, and the state ment relates to the eve nt, we ca nnot conclude that Fr eema

n was unde r the stre ss or excitement of the event at the time the stateme nt was mad e

. T h is is me r e ly a s e lf

- s e r v in g s tate me n t ma d e b e tw e e n tw e lv e an d tw e n ty h o u r s afte r the victim was killed

. Beverly ’s testimony of F ree man’s beha

vior and c hara cter istics support our

c on c lus ion : a lth ou g h F re e man a pp e are d v e ry

e xite d w he n sh e fi rs t arr ive d a t th e ho us e , s he qu ic kly calmed dow n and never cried. She then re turned to a state of hy steria whe n the authorities ar rived, and subseque ntly

calmed dow n ag ain.

Alternatively
, Fr eema

n argues that the statement wa s nece ssary for he r to prese nt a def

ense. Ex clusions of evidenc e may violate th e Due Proc ess Clause of the Four teenth Amendme nt of the United S tates C onstitut ion even if the ex clusions comply with rules of evidence

. State v. Flood , 219 S.W .3d 307, 316-17 (Tenn. 2007). Principles of due proce ss r equire that a defe ndant in a cr iminal t ri al h ave the rig ht to present a de fense and to offe r testimony

. See Chambers v. Mississippi
, 4 10 U.S. 284, 294 (1973); Sta te v . B ro wn , 29 S.W .3d 427, 431 (Tenn. 2000). I n W ashington v. Texas , 388 U.S. 14 (1967), the United States Supre me Court stated:

Th e ri g ht to of

fe r the te sti mony of wi tne sse s, and to c omp e l the ir a tte nd anc e , if

nece ssary , is in plain terms the rig ht to present a de fense
, t h e ri gh t to present the defe ndan t’ s v e r s io n o f th e f a c ts a s w e ll a s th e p r o s e c u ti o n ’ s to th e ju r y s o it may21

decide wher e the truth lies. Just as an acc used has the r ight to conf ront the pr o s e c u ti o n ’ s w it

n e s s e s f o r th e p u r p o s e o f c h a ll e n g in g th e ir te s ti mo n y , he has the rig ht to prese nt his own w itnesses to establish a def ense. This rig ht is a fundamenta l element of

due proc ess of law

.

388 U.S. at 19.

The rig ht to offer

testimony
, h o we v er , i s not absolute: “I n the exercise of this right, the

acc used, as is required of the State, must comply with established rules of

proce dure a

nd evidenc e . . . .” Cha mb e rs , 4 10 U. S. at 30 2. Rul e s of pr oc e dure and e vid e nc e are de sig ne d to a ssu re fa ir ne ss and reliability in the criminal trial process. Id. So long as the rules of proce dure and evide nce a re
no t a pp lie d ar bit ra ri ly or dis pr op or

tio nate ly to d e fe a t th e purp os e s th e y are de sig ne d to se rv e , th e se rules do not violate a de fenda nt’s righ t to present a de fense

. Flood , 219 S.W .3d at 317 (c itations omi tte d)

. Becaus e “ state and fe de ra l r ule make rs have br oa d latit ud e un de r t

he Con sti tut ion

to establish rules excluding e vidence from cr iminal trials,” Scheffer , 523 U.S. at 308, “[a]n evidentiary ruling ordinarily does not r ise to the level of a c onstitut ional violation,” State v. Rice , 184 S.W .3d 646, 673 (Tenn. 2006) . I n deter mining whe ther an ex cl usion of evidenc e rises to the le vel of a constitutional viol ation, we a re dire cted to co n sider the f ollowing: (1) Whether the e x cluded evidenc e is critica l to the defe nse; (2) W hether the evidence bears sufficient i ndicia of reliability ; and (3) Whether

the intere st supporting the e x clusion of evidenc e is sufficiently important. Flood , 219 S.W .3d at 317 (c itations omi tted).

Our fir st inquiry

is whether the excluded evidenc e is critica l to the defe nse. F ree man wished to introduce a

911 tape on whic h she stated that, in ef fec t, Rocha-Per ez killed her husband. We tend to ag ree that, in theory , ey ewitness testi m o n y t o her husba nd’s murder

is critical to Fr eema

n’s defe nse. We ca

nnot conclude, how ever , that the testimony “bea rs sufficie nt indicia of re liability .” Id . I n fac t, the testimony

is a wholly

unreliable self-se rving statement made by the Def endant many hours af ter the c rime occ urre d. Simi larly
, we conclude that the intere st supporting the e x clusion of the evidenc e is sufficie ntly important. That i ntere st is the rig ht of cross- examination. Here, F ree man
was mer ely

trying to testify without being subject t o cross-e x amination. The trial court did not err in excluding the testimony . Fr eema n is not entitl ed to re lief on this issue.

D. Sever ance

Fr eema n next argues t hat t he trial court erre d in ref using to sever the D efe ndants’ trials. The Tenne ssee Rules of Criminal Proce dure address the sever ance of defendant in Rules 8, 13, and 14. A trial cour

t should gra

nt a seve ranc e of de fenda nts if:

(i) bef ore tria l, it is deeme d nece ssary to pr otect a de fenda nt’s rig ht to a speedy

trial or it is deemed a

ppropriate to promote a fa ir deter mination of the g uilt or innocence of one or more de fenda

nts; or
(ii) during trial, with consent of the defe ndant to be sever ed, it is deemed ne cessa ry22

to ac hie ve a fa ir de te rm inatio n of the g uil t or inn oc e nc e of on e or mor e de fe nd ants

.

Te nn . R. Cr im. P. 1 4( c )( 2) (i )- (i i) ; ac c or d S tat e v . H owe ll
, 34 S.W .3d 484, 491 (Tenn. Crim. App. 2000). This decision rests within the s ound discretion of the trial cour t. Ho we ll , 34 S.W .3d at 491 (c i t i n g State v. Coleman , 619 S.W .2d 112 (Tenn. 1981) ). “This c ourt ca nnot i n t erf

ere with the exercise of

the discre t i o n afforded the trial court a bsent clea

r abuse .” Id . (citing Coleman , 619 S.W .2d at 116). “ The test is w hether or not the defe ndant was c lear ly prejudice d in his defense by being joi n t l y t ri ed wi th his co-def endant.” Id . (citing State v. W iseman , 643 S.W .2d 354 (Tenn. Crim. App. 1982)).

F re e man c laim s preju dic e fr om t he fa c t th a t sh e wa s p re ve nte d f ro m a sse rt inghe r d e fe ns e

– that Rocha-Per ez was the sole killer. See ge nerally State v. Flood , 219 S.W .3d 307, 315-16 (Te nn. 2007) (a ddressing rig ht to present a de fense under the Four teenth Amendment to the United States Constit ution). Specifica lly , the trial court did not allow Free man t o introduce the 911 tape on whic h she stated that Rocha -Pere z kil led the victim or a state ment of Rocha- Perez stating w here he found the vi ct im ’ s r in g

. Si n c e w e h av e a lr e a dy d e te r mi n e d th a t t h e 9 1 1 ta p e w a s p r o p e r ly

e xc lude d, Fr eema n was not “c lear ly prejudice d” by the trial court’s decision not to sever

. The tape would not b e a d m i s s i b l e e v e ni f

F r e e m anh a d

b e e nt r i e d

s e p ar a t e l y.

Withre sp e c t to Roc ha -P e re z’s state me nt, we sim ila rl y c on c lud e that F re e man w a s n o t c l e a r ly pr e jud ic e d. Roc ha -P e re z wa s q ue sti on e d in

a po lic e int e rr og a tio n r oo m. T he po lic e re mov e d h im from the r oom, and, as a

table wa s being moved, a man’s g old ring was discove red. F ree man enter ed and identified the ring as the victim’s. Roc ha-Per ez returne d to the room and, a fter que stioning on the subject, he admitted he found the ring

. The fac t that he found the ring was not disclosed to the ju r y b e c a u s e Ro c h a

- Pe r e z h a d n o t y e t b e e n M ir an d iz e d w h e n h e ma d e th e s tate me n t, and the statement wa s exclude d

. Fr eema n wished to introduce this statement to neg ate the “ infere nce the State clea rly wanted the jury

to find [] that Ms. Fre eman ha d g iven the ringto Mr. Rocha-Per ez after the killing of Mr . Fr eema n as a trophy

of some sort.” I

n addre ss i n g t h i s issue, the trial cour t deter mined that Fr eema

n made no showing that Rocha-Per ez would testify to what he state d at the police station if the trials wer e sever ed. Additionally , the trial cour t did not agr ee that the alleg ed infere nce is what the State intended or w hat the jury actua lly would infer.

We ag ree with the trial co u rt , an d Fr ee man has not shown cle ar a buse. In our view, the alleg ed infe renc e is very

tenuous at best. Additionally , there is no reason to be lieve that Rocha -Pere z would testify

at Fr eema

n’s t ri al t o what he stated or whe re he found the ringif the trials we re
se ve re d. Th e re is no c le ar pr e jud ic e to F re e man be c a

us e the re wa s a

fa ir de te rm inatio n o f h e r guil t or innoce nce. See Tenn. Crim. P. 14(c). F ree man is not entitled to relief on this issue.

E. Conf rontation

F ina lly , Ro c ha -P e re z al le g e s th a t th e tr ia l c ourt e rre d in a llo wi ngDe te c tiv e Cor c or a n to testify that Martha F ree man identified the g old ring as the victim’s in violation of C r a w f ord v. W ashington
, 541 U.S. 36, 50 ( 2004), and Bruton v. United States
, 3 9 1 U. S

. 1 2 3 (1 9 6 8 ). Al t h o u ghW e n ot e, i ni t i al l y , t hat t he s t at ement was f i r s t pre s ent ed un der t he exi t ed ut t er anc e e xce pt i on t o t he hea r s ay 3

ru le

. See T en n

. R. Evi d. 801, 802, 803( 2)

. T h i s i s s u e i s n ot c h al l en g ed.

23 not specifica lly

stated as such, Rocha- Perez’s ar g ument, in our view, is a c omplaint about the trial

c ourt ’s de c isi on no t to se ve r t he De fe nd ants

. See State v. Ruby Breede n, Billy Nicely, and Marsha Sutton , No. E2004-01512- CCA-R3-CD, 2005 WL 3199280, at *8 (Tenn. Crim. App., at Knox ville, No v

. 2 0
, 2 0 0 5 ) ( t re at i n g Bruton and Cra wfo rd issues under motion to sever ). We reviewdecisions

conce rning permissive joinder and sever ance of off enses pur suant to Rules of Criminal Procedure 8(b), 8(c)
, 14(b), and 14(c) under an abuse of discre tion standard. Sp ic e r v . S tat e , 12 S.W .3d 438, 4 4 2 (c i t i n g State v. Shirley , 6 S.W .3d 243, 247 (Tenn. 1999) ). 3

1. Crawford v. Washington

I n Crawf ord v. W ashington , the Un ite d St a te s Su pr e me Cou

rt state d th a t “ the pr inc ipa l e vil at which the Confrontation Clause was direc ted was the . . . use of ex parte examinations as evidence ag ainst the ac cused.” 541 U.S. 36, 50 (2 0 0 4 ). To that end, the Court established that testimonial he ars ay is ina dmi ssi ble un le ss the de c lara nt is un ava ila

ble and the de fe nd ant h a d a pr ior op po rt un ity for cr o s s -e x amination. Id . at 68. I n Sta te v . M ac lin , th e Te nn e sse e Sup re me Cou rt state d th a t, “[a]fter Cra wfo rd , the threshold question in any Confrontation Clause ca se is whether a challeng ed state me nt i s te sti mon ia l or no nte sti mon ia l.” 18 3 S. W.3 d 3 35 , 3 45 (T e nn . 200 6)

. “ I f it is te sti mon ia l, the statement is inadmissible unless ( 1) the decla rant is una

vailable a nd (2) the a ccuse d had a pr ior opportunity

to c ross-examine the decla rant.” Id . I f the stateme nt is not t estimonial, then we a re f ree to apply Tenne ssee’ s hear say

law to deter

mine t h e s tatement’s a dmissibi lity

. Sta te v . Le wis , 235 S.W .3d 136, 143 (Tenn. 2007)

. Thus, our first objective is dete rmining if F ree man’s stateme nt is “testimonial.” I n Ma c lin
, the Tenne ssee Supre me Court adopted a non-exhaustive list of factors to c onsider:

(1) whe ther the de clar ant was a v i ct i m o r an observe r; (2) w hether contac t was ini tiate d b y

the de c lara

nt o r b y law- e nf or c e me nt of

fi c ia ls; (3 ) the de g re e of

fo rm a lity attending the circ umstances in w hich the statement was made; (4) wheth er t he statement wa s g iven in response to questioning, whe ther the que stioning wa s str ucture d, and the sc ope of suc h questioning; (5) whether the statement wa s rec orded (either in writing or by elec tronic m eans) ; (6) the decla rant’s purpose i n making the statements; (7) the of

fice r’s purpose in speaking with the dec lara nt; and (8) whe ther

an o bje c tive decl aran t un de r t he c ir c ums tanc e s w ou ld b e lie ve that th e state me nts

wo uld be us e d at a

tr ia l.

183 S. W. 3 d

a t 3 4 5

. T h e U n it e d

St a te s Su

p r e me Co u rt h e lp e d

to f u rth e r d is ti n g u is h b e tween te sti mon ia l and

no nte sti mon ia l st a te me nts a s f oll ow s:

Statements are nontestimonial when made in the course of police inter rog ation under

c ir c ums tanc e s o bje c tiv e ly ind ic a tin g that th e pr ima

ry purp os e of the int e rr og a tio n is24

to enable police as sistance to mee t an ong oing e merg ency . They are testimonial

w h e nt h e c i r c u m s t an c e s o b j e c t i v e l y i n d i c a t e t h att h e r e i s n o s u c h o n g o i n g e m e r g e n c y,
and that th e pr ima

ry purp os e of the int e rr og a tio n is to e sta bli shor pr ov e pa st e ve nts potentially

rele vant to later c riminal prosec ution.

Davis v. W

ashington , 547 U.S. 814, —, 126 S. Ct. 2266, 2273-73 (2006). Pursuant to this guidanc e,
a 9 1 1 c a ll ma d e d

u r in g ana tt a c k

is n o t t e s ti mo n ia l, Id

. at 2276-77, but a re sponse to police questioning after an attack i s testimonial. Id

. at 2277-78 (consolidated case s). The differ ence s being

a s f oll ow s: ( 1) on e is a

de sc ri pti on

of a pr e se nt or on g oin g e me rg e nc y and on e is a de sc ri pti on

of pa st

e me rg e nc y

or oc c ur re nc e ; and

(2 ) on e is inf

or ma l qu e sti on ingfr om a

91 1 o pe ra

tor and the oth e r i s formal que stioning fr om an offic er. Id . at 2276-77.

Ba sed on these de scripti o n s of the diff ere nce be tween te stimoni al and nontestimonial statements, we c onclude that the tr ial court did not err in allowing D etec tive Corcora n to testify

that Fr ee m an i d en t i fied the r ing a s her husba nd’s bec ause the statement wa s not testimoni al. The following fac tors support the conclusion that the s tatement was nontestimonial under Ma c lin : ( 1) the decla rant wa s an obser

ver a s opposed to a victim; (2) the c ontact wa s orig inally initiated by Fr eema n, not the police; (3) a lthough the statement was made in a n interrog ation room, the interviewhad not y et begun and thus the situation was not y et forma l; (4) the statement wa s made spontane ously , not

a re su lt o f a

ny ty pe of qu e sti on ing ; an d (5) th ere is n o e vid e nc e the state me nt w a s r e c or de d. I t is

un cle ar w hat pu

rp os e F re e man h a d in

makin g the state me nt, and it a pp e ars to b e a

sim ple spontaneous ob s er v at i o n. Finally , fac tors (7) a nd (8) we igh in f

avor of finding the statement testimonial because the offic er’ s orig inal purpose was to obta in inf ormation about a homicide a nd an objec tive decla

rant would e x pect the statement to be used at trial.

Under Da v is , we c onclude F ree man ’s s t at em en t to be more akin to a 911 call than police questioning be cause Fr eema n was c onveying a

prese nt se nse observation. Additionally , Fr eema n’s statement wa s not a response to a question, much less for mal questioning by

the police; by

mere coincidenc e she sa

w the ringas she e ntere d the room. Thus, we conclude that the statement wa s “nontestimonial;” and the r ule of Crawf

ord v. W ashington was not off

ended.

2. Brut on v. United Stat

es

Under Bruton v. United States , th e Un ite d St a te s Su pr e me Court ru le d that, a t a joi nt t ri a l, it wa s err or to a llow into evidenc e a co-de fenda nt’s statement that implicates the de fenda nt without the c o- de fe nd ant t e sti fy

ing . 3 91 U. S. at 12 6; see P e t t y j o h n v

. N e wbe rry , 2 0 0 0 U

. S

. A p p

. LE X IS 17532 (6th Cir.2000) (“ th e p ro h i bition applies not only to a non-testifying c odefe ndant’s confe ssions, but also to s tatements made by the code fenda

nt that impli cate the def

endant” ) (c iting Un ite d S tat es v . B ar tle , 835 F.2d 646, 651 ( 6 t h C i r. 1 987)). This would be a violation of the defe ndant’s constitutional rig hts under the Confrontation Clause of the Six th Amendment. Bruton , 391 U.S. at 126. I n analy

zing this issue, the trial court determined that “there’ s no Bruton problem be c a us e the re wa s no sta te me nt ab ou t Roc ha -P e re z ma de by Ms. F re e man, ” and

the state me nt d id

n o t i mplicate Rocha -Pere z. Se e Do rse yv . S tat e , 5 6 8 S. W. 2 d 6 3 9
, 6 4 2 ( T e n n

. Cr im

. A p p

. 1978)25

(“[T]he rule in Bruton does not apply to confe ssions which do not impl icat e t h e non-c onfessing defe ndant . . . .”) (citing United States v. Alvare z , 5 1 9 F.2d 1052 ( 3d Cir. 1975), cert. de nied
, Hernande z v. United States , 423 U. S. 9 14 (1 97 5) ; United States v. Gray , 462 F.2d 164 ( 5th Cir. 1972), cert. de nied
, 40 9 U .S. 10 09 (1 97 2) ; W hit e v . S tat e , 497 S.W .2d 751 (Tenn. Crim. App. 1973) ; Tay lor v . S tat e , 493 S.W. 2d 47 7 (T e nn . Cr im. Ap p. 19 72 ); Ma x we ll v . S tat e , 441 S.W .2d 503 (Tenn. Crim. App. 1969); ABAStandards Relating to J oinder a nd Severa nce § 2.3( a)( ii) (1967)).

The issue be fore this Court i s whether the statement i m p l icates Rocha -Pere z. As the trial court found, the statement on i t s fa ce does not mention Rocha-Per ez. I t is merely Fr eema n’s response to the appea

ranc e of the victim’s ring in the interrog ation room. Only when introduc ed with surrounding fac ts – Rocha Perez was in the room prior to the finding of the ring ; the ring was not in the room befor e Rocha -Pere z arrived – doe s this st atement implicate Roc ha-Per ez’s involvement in the murder of the victim.

I n Ri c ha rd

so n v . M ar sh , the United States Supreme Court took up the question of whethe r statements incriminatory

only by “evide ntiary

linkag e” or

“conte x tual implication” violate the Confrontation Clause. 481 U.S. 200, 206 ( 1987). The f acts of Ma rsh are g ener ally these: Mar

tin, Wil liams and Marsh a g ree d to commit a robber y ; Wil liams’s confe ssion was introduce d at his joint trial with Marsh, and the statement explained that Martin picke d him up and drove him to the sce ne; on the way , they

discussed the robbe ry and Martin stated that “he w ould have to take them out after the robbe ry .” Id . at 20 2- 03

. Th e on ly iss ue wi th re sp e c t to Ma rs h wa s wh e the r sh e ha d the sp e c if ic intend to participate in the killings; thus the statement in the confe ssion was indirect e vidence that Mars h w a s awa

re of the int e nt o f M art in o nly la te r g ive n c on te xt w he n Ma rs h te sti fi e d s he wa s in the car on the ride to the sce ne. Id

. a t 20 3. Ma rs h ma int a ine d th a t th e ra dio wa s to o lo ud fo r h e r t o hear any conver sation betwee n Martin and Williams. Id

. The Court stated, “ I n Bruton , the code fenda nt’s confe ssion ‘expressly implicat[ ed]’ the defe ndant as his ac complice.” Id

. at 2 0 8 (c i t i n g Bruton , 3 91 U. S. at 12 4, n. 1) . “ B y c on tr a st, in t

his

case the conf

ession was not incriminating on its fa ce, and beca me so only when linked with evidence introduced later at trial (the def endant’ s own testimony).” Id . The Court thus ruled that the admission of the confe ssion, accompa nied by a limit ing instruc tion, did not consti tute err or. Id . at 211.

I n dissent, J ustice Stevens ar g ued that the c onfession was “powe rfully incriminating ,” and

“ of c ri tic a l im

po rt anc e be c a

us e it w a s th e on ly

e vid e nc e dir e c tly

lin kin g re sp on de nt w iththe sp e c if ic intent, expressed befor e the robbery , to kill t he victims after war ds.” Id

. a t2 1 4

- 1 5

. F u rt h e r , “ If Wil liams had taken the witness stand and testi fied, respondent’s lawy er could have c ross-examined him to c ha lle ng e his c re dib ili ty and to e sta bli shor su g g e st that the c ar ra dio wa s play ing so lou dly that Marsh c o u l d not have ove rhea rd the c onversation between the two men from the ba ck seat.” Id . at 215-16.

We conclude Ma rs h is instruc tive in almost every respe ct. As in Ma rsh , the statement fr om Fr eema n only implicates Rocha-Per ez w ith “ evidentiar y linkag e” or “c ontext ual implication” from26

Detec tive Corcora

n. Thus, the trial court’s ruling on this issue was not in err or. We note, howeve r, that the Ma rsh case specific ally states that the trial court g ave a limit ing instruction to the jur y that they could only

consider Williams’s confession ag ainst Wi lliams, not Marsh. No suc h instruction

wa s gi v en in this case. We conc lude, thoug h, that the fa ilure to g ive a limiting instruction was harmless for

a number

of re asons. Fir st, Rocha-Pere z fai l ed to re quest a limiting instruction. Pursuant to Un ite d Sta te

s v . S he rli n , the l ack of a li miting i nstruction when one was not re quested is n o t re v er s i b le er

ror in this instance. 67 F .3d 1208, 1216 n.1 (6th Cir. 1995) (“ We note that the

re co rd i n this case doe s not indicate that the district cour t ga ve a limiting instruction to the jury reg ardingthe evidentiar

y scope o f T ea g ue’s state ment. We do not, however , find the lac k of instruction problematic in this ca se bec ause Sher lin did not request such an instruc tion. See U nited States v. Lockle ar , 24 F.3d 641, 646 n. 2 ( 4th Cir.) (noting that defe ndant waives r ight to limiting instruction if he fa ils to ask for one)
, cert. de nied , 513 U.S. 909, 115 S. Ct. 278, 130 L . Ed.2d 195 (1 99 4) ” ). Se c on d, we fi nd the e vid e nc e wa s not ne c e ssa ry to c on vic t Ro c ha -P e re z as de sc ri be d in the su ff ic ie nc y of the e vid e nc e se c tio n a

bo ve

. F ina lly , we se e the ri g ht to e xclu de the e vid e nc e in this case as i llusory : had R ocha- Perez been suc cessf ul in obtaining a se vera

nce, a n objection to the evidenc e at h is tr ia l w o u ld h a v e b e e n b a s e d o n h e ar s ay

. T h e tr ia l c o u rt r u le d th a t th e r e wa s an exception to the hear say

rule, thus the evide nce w ould likely have be en admitted ag ainst him.

Considering the above cited ca s es, we conclude Rocha-Per ez had not shown that the trial court e rre d in refusingto gr ant a motion to sever.

III. Conclusi on

After a thoroug h revie w, we conclude that there was suff icient evidenc e to support the jury ’s finding s, the photogr aph of Rocha-Per ez w as not a dmitted in err or, the 911 tape w as not prec luded in error , the trial cour

t did not err in ref

using to sever

the Def endants’ tr ials, and the Confrontation C l au s e w as n o to ff

en d edb y t h e i n t ro d

u ct i o no f Fr ee m an ’s s t at em en ti d en t i fy i n g t h e v i ct i m ’s ri n g. As su c h, we a ff

ir m th e jud g me nts of

the tr ia l c ourt

.

________________________________ ROBERT W. WEDEMEYER, J UDGE