# FILED
October 19, 1999 Cecil Crowson, Jr. IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE MARCH 1999 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9808-CR-00275 Appellee, * HAMILTON CO UNTY VS. * Hon. Douglas A. Meye r, Judge CHARLES ERIC GOODWIN, * (Attempted Second Degree Murder and Second Degree Murder) Appellant. *

For Appellant : For Appellee : Allen R. Beard, Attorney Paul G. Summers 615 Lindsay Street, Suite 110 Attorney General and Repor ter Chattanooga, TN 37403-0110 R. Stephen Jobe Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Second Floor, Cordell H ull Building Nashville, TN 37243-0493 C. Leland Davis and Caldwell Huckabay Assistant District A

ttorneys General City and County Court s Building Chattanooga, TN 37402

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Charles Eric Goodw in, was convicted i n a bench trial of the second degree murder of Greg ory Billups, Jr., and the attempted second degree murder of Eddie Birdsong . The trial court imposed con current, Range I sentences of twenty-fiv e years and twelv

e years, respectiv

ely. In this appeal of right, the defendant challeng es the sufficiency of the eviden ce as to each conviction and contends that certain of the test imony should not have been ex cluded from consideration.

We affirm the judgment of the trial court.
During the early mor

ning hours of June 8, 1995, William Anthony Taylor drove the defendant to t he Chattanooga residence of Betty Calloway, the defendant's girlfriend. Ms.Calloway liv ed in a two-story house on Duncan Avenue that had been converted into apar tments. After leaving the car and as he approached the residence, the defendant s aw the victim, Gregory Billups, Jr., and Ostonia Woodall talking outside the apartments. The defendant made a remark to Ms. Woodall which resulted in an al tercation between the defendant and Bi llups. After initially attempti ng to stop the fight, Eddie Bi rdsong, who was a brother to Billups, joined the fray.According to witnesses, the altercation among the men lasted between ten and fifteen minutes and ended when the defendant, who had been beaten and had lost a shoe, ran to an automobile owned by Rod ney Gordon. Taylor, who was a codefendant in the bench trial, had l ittle involvement i n the fight, according to at least one o f the state's witnesses, ex cept to try to stop it.
Later, the defendant, driving his own automobile, retur ned to the residence with Taylo r, Gordon, James Duke, James Davenport, and perhaps others. He was present when the victim Birdsong w as assaulted and when the v ictim Billups3 was murdered.

The evidence was disputed at trial. Stephanie Feaster, a sister to Billups, testified that she was at her second story apartment with her one-year-old son. Billups, Birdsong, and Ms. Woodall, who had a ne wborn daughter, were also present. Ms. Feaster r ecalled hearing a loud cr ashing sound and, after wal king downstairs to inves

tigate, observed Bil lups choking the defendant. She st ated that Taylor was attempting

to break up the fight and that Bi rdsong was able to sepa rate the combatants. A fight then erupted between Birdsong and the defendant after which Ms. Feaster r

eturned to her apartment. Later, Ms. Feaster overheard Billups and Birdsong, neither of w hom were armed, laughing about how badly the defendant had been beaten. After an interv al of time, Billups and Birds ong decided to go to a grocery store for beer. Ms. Feaster recalled that Billups armed himself with an ice pick as B irdsong walked ahead dow n the stairway. M s. Feaster then heard two gunshots and Bi llups, who went dow nstairs to investig ate, directed her to return to the apartment, lock the doors, and call the polic e. Ms. Feaster stated that she hid behind a door when she heard a voice outside calling out, "It's another m----- f---- upstairs, let's

get him." Ms. Feaster t estified that she then heard a cra sh at her door, saw the defendant and Taylor standing next to Bill ups, and observed Taylor shoot Billups once from relati vely close rang e. Ms. Feaster recall ed that immediately after the shooting , Taylor and the defendant fled down the stairway.

Ostonia Woodall, Billups' girlfri end, also testified for the state. She stated that the initial fight erupted due to a remark the defendant had made to her. She stated that Billups took ex ception, a fight ensued, and that Tay lor and Birdsong attempted to intervene. She st ated that Birdsong then fought w ith the defendant and ultimately chased him aw ay through an alley

way. Ms. Woodall testified that sometime later she heard gunshots and then some one say, "There is one more in4 the house, there is another one i n the house." Ms. Woodall called the police and, as she was speaking w

ith a 911 dispatcher, heard a g unshot inside the apartment.
Eddie Birdsong testified that he had intervened in the ini tial fight because he had discovered hi s brother, Billups, chok ing the defendant while Tay lor was on Billups' back.Birdsong recalled pus hing Taylor off his brother and then separating Billups and the defendant. He stated that when he was struck by the defendant, who continued to try to fight with Billup

s, he "then ... whooped him." Birdsong described the demeano r of the defendant as "on something." Bir dsong testified that sometime later he w ent downstairs and agai n saw the defendant who said, "It's over with me." Birdsong stated that he then overheard the defendant talking to someone else, w ho he could not see in the dark. Birdsong related that the defendant then produced a gun and fired in his direction. Birds

ong was able to flee from the scene without being hurt.
Detective Dan Moody

of the Chattanooga Police Depar tment led the investigation. He l earned that the defendant had been hospitali zed with a stab wound and arranged a gunshot residue a nalysis at approxim ately 9:0 0 A.M., on ly a few hours after the shooting. The test was inconclusi ve. Detective Moody

testified that Taylor claimed that he had broken up a fight in whi ch the defendant was involved and, after retur ning to the defendant's residenc e, discovered that the defendant had been stabbed in the initial fray. Taylor made no mention of returning to the Duncan Avenue residenc e in his first statement to the detective but admitted in his second statement that he and the defendant had returned there, saw other individuals chasing

someone, and then heard a gunshot.
Detective Moody als

o questioned the defendant, who cl aimed that he was stabbed when he bent ov er to pick up a necklace after the initial altercatio n with5 Billups. The defendant told the detecti ve that during the second confrontation someone reached over him and fire d a pistol at Billups. I n his initial statement, the defendant made no mention of Frederick Rol lins. Several months l ater, the defendant sent Detective Stev e Angel a letter claimi ng that Rollins had shot B illups and that he and James Duke had wi tnessed the shooting. The defendant cl aimed that Rollins later ki lled Duke, who had sug gested to Rollins that he should confess to the killing of Billups.

Frank King, M.D., the county medical examiner , testified that Billups died from a single gunshot wound that entered his left lateral back an d traveled in an upward direction int o his right chest cav

ity. Dr. King es

timated that the gun was fired from about two feet.

Detective Tim Carroll , who investigated the murder of Duke, testified that Rollins had been charged and convicted of that crime. Detective Carroll also testified that he had investi gated the defendant's claim that R ollins had also shot Billups. After comparing the bullets in each murder, Detective Carroll det ermined that there was no match. Other witnesses established that there was no relationship between the Billups and Duke murders.

The defendant claimed that he was attacked by Birdsong and Bil lups for no reason and that Taylor's only involvement w

as to try to break up the fight. The defendant contended that he was aw are that his mother, when s he learned of his beating, intended to travel to the Duncan Avenue home to conf ront his assailants, and testified that h e returned there to find her. H e claimed that the other men, who had heard about the alter cation, just happened to arri ve at about the same time. The defendant claimed that w hen he saw Birdsong, he signaled that there was no further arg ument between them and that Birdsong did likewise. The6 defendant claimed that Birdsong nev ertheless followed him in a threatening manner as he walked into a dark area. He recalled that one or two shots were then fired.
The defendant explained that, after the in itial fight, he asked Rodney Gordon for a ride to his car because he did not want to l eave it overnight in the projects. He stated that w hen he retrieved his car, his friends in the neighbor hood asked what had happened and learned that he had been beaten by Birds ong and Billups at the Duncan Av enue residence. The defendant claimed that when he returned to the scene, he first saw Birdsong, who said, "W hat's up, nigger? What's up? You want some more?" He testified that he responded, "It's over with, man," and that Birdsong commented, "Well, you shoul dn't have come around here w ith that anyway." The defendant denied that he had a weapon in his possession. He contended that Birdsong followed him all the way to the front of the house where it was particularly

dark. The defendant testified that he hear d a shot at that point and fell to the ground to avoid being struck. The defendant stated that he went around to the front door and into the hallw ay of the apartment, "staying out of sight." The defendant stated that "there was some more guys following ... behind me ... in the hallway," who he i dentified as "240, J.D., [and] Tony Richardson." The defendant testified that he then saw Billups coming down the steps:

And next thing I know , there was a push or something .... I don't know. It was words being exchanged or whatever, somebody pus hing me out o f the way. I fell holdi ng my side, and next thing you know, I heard people kind of like stampede past me. I heard shooting . Once I heard the shooting, people started r unning back ... past me ... pushing me out of . .., and s

omebody

helped m e up ... o

ff the ground.... I don't know whether I was stabbed or shot.
The defendant testified tha t he was taken to his mother's residence where his brother cal led for an ambulance to take him to the hospital. The defendant recalled that when he woke up from surgery, he was handcuff ed. He7 stated that the police performed a te st on his hands in an effort to determi ne the presence of gunpowder. At t rial, the defendant, who had a pr ior felony record, claimed that Frederick R ollins had shot Billups.
Joyce Duke, the mother of James D uke, testified for the defense. She recalled that before his death, he r son had informed her that Roll ins had killed Billups. The state objected to the testimony as hearsay and the trial court ruled it inadmissible. Ms. Duke admitted that the codefendant Taylor w as the father of her daughter's child. She co nfirmed that Rollins had kil led her son.

James Davenport, who admitted that he had been drinking on the night of the shooting and had an unc lear memory of the events, t estified that he was told by the defendant and Taylor of the altercation with Bi llups and Birdsong. Davenport claimed that he s aw Rollins rush pas

t the defendant and shoot Billups. Davenport also claimed that Rollins bragged a fterwards about having shot Billups.

Jamie Jackson, a former correc tional officer in the Hamilton C ounty Jail, also testified for the defense.He recalled that the defendant and R ollins, who were both incarcerated at the time, engaged in an ar gument wherein the defendant accused Rollins of having killed a man. Jackson stat ed that he overheard the defendant shout, "You know you killed him," after whic

h Rollins retorted, "Y

eah, I know that, but nobody els e does."
The defendant's mother, Joyce Goodw in, also testified on behalf of the defense. She claimed that when the defendant returned from the Duncan Avenue residence, his nose was bloody and he had no shoes. She s tated that when she learned that he had been beaten by t wo individuals, M s. Goodwin picked up a friend, Darlene Jones, and drov e to Duncan Avenue. She testified that when she8 arrived, however, the area was full of police officers. She stated that she had been delayed to the Duncan Avenu e residence when she stopped for gas. Upon returning home, she discov ered that the defendant and the police w ere at her residence.

Ms. Darlene Jones testifie d to substantially the s

ame series of events as Ms. Goodwin. She did differ in one regard, howev er, in that she remembered driving straig ht to the Duncan Avenue resi dence and then stopping for gas afterward.

I

Initially, the defendant compla ins that the evidence w as insufficient to support either of his convi ctions. Because the defendant Taylo r was acquitted in the bench trial, the defendant argues that the trial judge's "decision was based on pur e surmise," supportive of neither the state's theory nor that offered by the defense. The defendant bases his argument on th e fact that Ms. Feaster, the only eyewitness to the shooting, testified that Taylor had fired the weapon. He asserts that the trial judge, who determin ed that Ms . Feaster was "simpl y ... wrong ab out what sh e says she saw," had no basis to r eject that portion of her testi mony while accredit ing the balance of her as sertions : "[t]he trial cour t based it s decisio n entirel y on its own tortured interpretation of the e vidence."
The state’s theory was that the defendant, motivated by r evenge after he had been beaten, gathered some of his fr iends from the projects and retur ned to Duncan Avenue to confront Bird song and Billups. The state s ought to prove that the defendant, who had been drinking , shot at Birdsong and then c hased after Billups on the stairway w

here either the defendant or Taylo r shot Billups. The theory of the state was that the defendant was either the perpetrator or was criminally responsible9 for the conduct of Taylor. It cont ended that the defendant told his friends that he "got ganged" and that the poli ce came in response to Ms. Woodall's cal l, where the shot was recorded, and not that of the defendant; that the defendant shot at Birdsong because he was embarrassed by getting whipped by the young er men; and that Billups "stuck the defendant with an ice pick" and sta rted to run before being shot by either the defendant or Taylor. The state's theory was that Ms. Feaster, a seventeen yea r old with her ow n child, was so frig htened by the course of events that she could hav e been mistaken about which of the two defendants fired the fatal shot.

The defense theory was that the defendant returned to the Duncan Avenue residence only because he thought his mother w as there; that he was not armed and that the outside area w as so dark the state could not prove who fired shots at Birdsong. The defense theor y was that the defendant fell to the ground after being stabbed by Bil lups inside the apartments and that Rollins chased Bill ups up the stairway and s hot him.

At the conclusion of the proof, the tr ial judge found that Taylor had been a peacemaker when a fight br oke out between Billups and the defendant and that Birdsong had interv ened and then beaten the defendant. He determin ed that the defendant returned to his resi dence, gathered some friends, and r eturned to challenge Billups and Bi rdsong. The trial judg e concluded that Birdsong, u pon leaving the apartment, obs erved the defendant and followed hi m around the corner of the residence in order to dete rmine why he had retur ned when the defendant "fired twice at him." The tri al judge also found that Bill ups, who had heard the gunshots and had armed himself with an ice pick, directed Ms. W oodall and Ms. Feaster upstairs and stuck the defendant with an ice pick when the latter entered the stairway. He determined that Ms. Feaster was "honestly mistaken" and that in10 reality the defendant had fired the fatal shot into the back of Billups as he ran up the stairway. The tri al judge placed emphasis upon the upward angle of the shot as determined by Dr. King and also concluded that the defendant "w as not in a state of passion" at the time of the shooting s, a state of mind which mig ht have reduced the offense to voluntary manslaug hter. Taylor was ac quitted because, in the w ords of the trial judge, he did not share in the criminal i ntent to commit murder and did not, according to his inter

pretation of the proof offered, fire any of the s hots at Birdsong or Billups.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence a nd all reasonable inferences w hich might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the proof are matters entruste d to the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). W hen the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the lig ht most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13 (e).

Although this case was a bench trial, the findings of the trial judge who conducted the proceedings car ry the same weight as a jury verdic t. State v. Tate , 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). Questio ns concerning the credib ility of the witnesses, the wei ght and value to be giv en their testimony, and all factual issues raised by the pr

oof are matters entrusted to the tr ier of fact. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This cour t may neither reweig h nor reevaluate the evidence. State v. Cabbage , 571 S.W.2d at 835.11 Second degree murder is defined a s the knowing kill ing of another. Tenn. Code Ann. § 39-13-210(a)(1) . Criminal attempt is defined in pertinent part as follows: (a) A person commits cri minal attempt who, acting with

the kind of culpability otherwise required for the offense: (3) acts with i ntent to complete a course of action or cause a result that woul d constitute the offense, under the circumstances surroundi ng the conduct as the person believes them to be, an d the conduct constitutes a substantial step towar d the commission of the offense.
The trial judge made reference to criminal responsibil ity for conduct of another: A person is criminally responsible for an offense

committed by the conduct of another i f (2) acting with the intent to promote or assist the commission of the of fense or to benefit in the proceeds or result of the offense, the person solicits, direc

ts, aids, or attempts to aid a nother person to commit the offense.

The evidence offered at trial w as contested. Some of the proof offered may have been untruthful. Other testimony, while not

untruthful, may have been mistaken due to the variety of emotions produced in the witnesses in conseque nce of the course of events. There w as, however, testimony of each and every element of the offense of the second degree murder of Phil lips and the attempted second degree murder of Birdsong. There was proof that the defendant, after being beaten and possibly embarrassed by the initial alterc ation on Duncan Avenue, summoned the assistance of his friends and r eturned to the residence to confront Birdsong and Billups. A gun was obviously present and there was testimony th at neither Billups nor Birdsong had a gun. There was proof that the defenda nt or his friends were armed and that two shots w ere fired at Birdsong before Bi llups, who, in antici pation of trouble sought to protect himself by the use of an ice pick, was shot in the back either by the defendant or w ith the assistance and parti cipation of the defendant.12 The gunshot, which apparentl y resulted in the death of Bil lups, can be heard on the 911 call made by Ms. Woodall.

As pointed out by the state, there was proof the defendant had a motive and the opportunity to commit the offenses. There was di rect testimony as well as circumstantial evidence which contradicted his claim that he was merely present at the time the shots w ere fired at Birdsong and Bi llups. Furthermore, the trial court had a factual basi s upon which to reject any claim by the defendant that the crimes against Bill ups and Birdsong should hav e been voluntary manslaug hter or attempted voluntary mans laughter. It was the prerogative of the fact finder to determine whether there w as adequate provocation "s ufficient to lead [the defendant] to act in an irrational manner." T here were circumstances in this instance which indicat

e that the passion or anger, which might have nat urally been present in the defendant, had subsided fro m the time of the first altercation until the second confrontation. For ex ample, the defendant claimed that when he saw Birdsong, he indicated that there was no longer a ny quarrel between them and he walked away jus

t before the first shots wer e fired. The defendant testified that he had gone home to forget about the incident and only returned to check on his mother, who had stated that she intended to investigate the incident. The trial judge, as was his prerogative as the trier of the facts, chose to reject the defenda nt's claim that the stab wound from the ice pick had provoked the def endant to kill Billups. There was a bas is for that finding. Witnesses overhear d a comment, "there's another one upstairs " in reference to Billups and "l et's get him."

In our view, the evidence was sufficient. So long as there was a factual basis in the record for his conclusions, the trial judge was entitled to assess the credibility of each w itness and make an interpretati on of the proof at trial without accepting either the state’ s theory or that of the defense.13 II The defense theory was that Frederick Rollins killed the victim. While the trial court initia lly allowed hears ay evidence whic

h indicated Rollins w

as the assailant, it ultimately

determined that the evidence w as inadmissible. James Duk e, who was with the

defendant on the night Billups w as killed, was later

murdered by Rollins. Joyce Duke, the mother of James Duke, testified that she had overheard her son, two days before h is own death, claim that R ollins had killed Bil lups. James Davenport, who wa

s transported to prison w ith Rollins, testified tha

t Rollins had admitted to the killing s everal times. Jamie Jackson, a jail employee, tes tified that he had overheard Rollins admit to participating i n one or more killings.
The defendant claims that the trial j udge excluded the evid ence on grounds of irrelevancy

or hearsay. The defendant insis ts that the testimony offered by the three witnesse

s should have been admitted: (1) as to Ms. Duke's testimony, the defendant contends that the evidence was admi ssible under Rule 804(a)( 4) of the Tennessee Rules of Evidence; (2) as to the testimony of James Davenport, the defendant claims that the evidence was not offered to prove the truth of the matter as serted; and (3) as to Jamie Jackson’s testimony, the defendant argues that the evidence was not offered to prove the matter asserted but to show that Rollins had admitted killing someone in an ar gument with the defendant.

Initiall y, we reject t he notio n that th e proof wa s not off ered to pr ove that someone other than the defendant killed Billups or f ired the shots at Birdsong. The defendant makes no real argument in s upport of that claim. Thus, the hears ay rules would apply. Rule 804(b)(3) of the Tennessee R ules of Evidence, the statement against interest exception to the rule against hearsay, provides as follows:

A statement which was at the time of its making so far contrary to the declara nt's pecuniary or prop riety interest,14 or so far tended to subject the declarant to civil or criminal liability

or to render invalid

a claim by the declarant against another, that a reasonable person in the declarant’s position w ould not have made the statement unless believing it to be true.
The statement against interest is admissible only if the declarant is unavailable. James Duke’ s statement to his mother that he had witnessed Rollins shoot the victim Billu ps does not, in our view , qualify as a statement ag ainst interest. The declarant, James Duke, ev en though unavailable due to his death, did not subject himself to criminal liability by making the statement. The off ered evidence was, therefore, properly excluded.
James Davenport, who tes tified without objection that he had observed Rollins shoot Billups, also stated that Rollins had bragged about his inv olvement afterward and had acknowledged having fired the fatal shot. W hen Davenport testified that Rollins admitt ed that he "bust[ed] the mf," there was no objection by the state. When he discussed the conversation that he had with Rollins on their way to prison, wherein Roll ins acknowledged hav ing "shot two or three people," there was no objection. After hearing this and all of the other testi mony at issue, the trial court, when rendering the verdict, made the following ruling:

[T]he one thing that I did not deal with, and that is the testimo ny we heard a bout an a lleged alt ernative perpetrator, which would be the testimony that was heard about Freddy Rollins, and the court finds the testimony about the alleged perpetrator is not admissible, that none of the testimony was admiss ible.
The ruling, which w

as made as an aside while t he trial court was rendering the verdict, cannot be interpreted as broadly as it might appear. Those objections that were made by the state were based upon the rule against hearsay

. The trial court reserv

ed judgment, heard the evidenc e, and expressed his intent to15 render a ruling at a la

ter time. It is our v

iew that the trial ju dge's ruling at the end of the proof only pertained to tes timony which was

at issue and not that introduc ed without objection. In fact, the ruling appears to be limited to the testim ony of Joyce Duke which the trial court characterized as follows:

It is hearsay.... I w

ill allow you to

present it for the record.... Well, it would be coming in just for the record then I can decide later w hether to consider it or no t.

Nevertheless, even i

f the trial judge was mak ing reference to the hearsay testimony offered by Davenport of his conver sations with Rolli ns after the night of the shooting, an exclusion would not have been erroneous. W hile Rollins' statements were certainly against his own interests, the defense did not establish that Rollins was unav

ailable, as required by

the rule. Tenn. R. Evid. 804(b). The proponent of the evidence, the defendant i n this case, has the responsi bility of issuing a subpoena. Here, the defendant did so. During the course of the trial, however, after it became c lear that Rollins w

ould be available to testi fy, the defendant chose not to call him as a witness:

THE COURT: At this point, Mr. Beard, there was a question about whether or not you wish to hav

e the testimony of Freddy Rol lins, and we have loc ated him. He is ... in Bledsoe County at Pikeville, and they are scheduled to ... send him over here at 6:00 o'clock in the morning, which would be 7:00 o ur time, b ut you have decided that you do not wi sh to call him? MR. BEARD: That is correct, your honor. THE COURT: And Mr. Sloan and Mr. Poole (counsel for the defendant Taylor) you both ha ve decided that you do not wish to have Rol lins’ testimony? MR. POOLE: That's correct, your honor. THE COURT: And the state does not wish to call him either? MR. DAVIS (assistant di strict attorney gene ral): No.16 The defendant also argues as an excuse that "had [Rollins] been in court, it is highly un likely tha t he would h ave admit ted to th e killing an d would ha ve certainly invoked the privilege agai nst self-incrimination.... " Rule 804(a)(1) of the Tennessee Rules of Evidence includes in its definition of "unav ailability," "situati ons in which the declar ant ... is exempt ed by ruling of the court on grounds o f privilege from testifying concerning the subject matter of the declarant's statement...." In order to be deemed unavailable,however, the witness must actually "asser t a privilege and the cour

t should rule that the priv ilege is properly

invoked." Neil P. Cohen, et al., Tennessee Law of Evidence , § 804(a)(2), at 590 (3d Ed.1995). That was not done in this case. For these reasons, an exclusion of the hearsay evidence offered by Davenport woul d have been entirely appr opriate.

Jamie Jackson testified that he ov erheard Rollins in an ar gument with the defendant admit having killed someone. Th e defendant’s brother, Tracy Goodwin, who was also incarcerated, was involved in the q uarrel. Jackson recall ed that the defendant said, "You need to tel l these people that you kil led that boy." Jackson remembered that Rollins initially denied that he had done so but after a continuation of similar dialogue, the exchange ended as f ollows:

THE DEFENDANT: You know you killed him. You know that we didn't have nothi ng to do with that. ROLLINS: Yeah, I know that, but nobody else does. THE DEFENDANT: Well, then, you need to tell those people you killed that boy

. ROLLINS: No, I'm not telling them nothing. Jackson described the arg ument as having lasted for as long as an hour. When questioned by the trial

judge, Jackson admitted that the name of the victim was "never mentioned."

Again, Rollins wa

s not unavailable as is required before a statement17 against interest can be pr operly introduced. In c onsequence, the evidence w as properly excluded. There was no error.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Norma McGee Ogle, Judge

_____________________________ Cornelia A. Clark, Spec ial Judge