IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 27, 2019

STATE OF TENNESSEE v. CHRISTOPHER CHRISTIAN PADGETT

Appeal from the Criminal Court for Hamilton County

No. 284433 Thomas C. Greenholtz, Judge

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No. E2018-00447-CCA-R3-CD

___________________________________

Defendant, Christopher Christian Padgett, was convicted for felony murder and 

especially aggravated robbery, and the trial court imposed an effective sentence of life in 

prison. On appeal, Defendant argues that the trial court erred when it allowed the State to 

introduce indirect hearsay evidence regarding an eyewitness’s description of the suspect’s

shoes in violation of the rules of evidence and the Confrontation Clause. Additionally, 

Defendant argues that the trial court erred when it allowed the State to introduce a 

recording of Defendant’s conversation with his mother taken at the police service center 

because the statements were taken in violation of Defendant’s reasonable expectation of 

privacy protected by the Tennessee and United States Constitutions. After a review, we 

hold that the trial court committed harmless error by admitting the indirect hearsay 

description of the suspect and that Defendant is not entitled to plain error relief on the 

other issues raised. Thus, we affirm the judgment of the trial court, but we remand this 

case for entry of judgment documents in Counts Two and Four. 

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

and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and 

CAMILLE R. MCMULLEN, JJ., joined.

Lorrie Miller, Chattanooga, Tennessee (on appeal); Meredith Ziebold, Chattanooga, 

Tennessee, and Wencke West, Cleveland, Tennessee (at trial) for the appellant, 

Christopher Christian Padgett.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant 

Attorney General; Neal Pinkston, District Attorney General; and Cameron Williams, 

Assistant District Attorney General, for the appellee, State of Tennessee.

05/23/2019
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OPINION

Factual and Procedural Background

Defendant was indicted on July 11, 2012, by a Hamilton County Grand Jury for 

felony murder in Count One, first degree premeditated murder in Count Two, especially 

aggravated robbery in Count Three, and possession of a weapon with intent to commit a 

dangerous felony in Count Four. The Friday before the jury trial commenced, Defendant 

posted a $350,000 bond and was released with the special conditions of GPS and House 

Arrest Monitoring. On October 4, 2016, a four-day jury trial commenced, and the 

following evidence was adduced. 

Mankin Mansur, an employee at Millennium Taxi, testified that Nathan Deere, the 

victim, came to work for the taxi company after Mr. Mansur encouraged him to leave his 

job at Waffle House to receive better pay. Mr. Mansur estimated that he and the victim 

spoke daily over the six to eight months that the victim was employed with Millennium 

Taxi. Explaining particular policies and procedures, Mr. Mansur stated that each driver 

must “pay a pack” of $95 each day by 6:00 p.m. to lease the van from the cab company. 

After the driver “pays the pack,” additional money earned was for the driver to keep.

Furthermore, Mr. Mansur described that drivers typically picked up fares in two 

ways: base fares and special fares. Special fares occurred when a rider contacted the 

driver directly on the driver’s cell phone and were not recorded in the log book. Mr. 

Mansur estimated that 60 to 65 percent of the calls originated from base fares and 35 to 

40 percent of calls from special fares. In his experience, the majority of the transactions 

he made were in cash.

Mr. Mansur estimated that he spoke with the victim two hours before his death. 

The victim told Mr. Mansur that he had $95 to “pay his pack” and was on the way to pick 

up another ride. Mr. Mansur shared that he was not aware of exactly how much money 

the victim had in his possession when they spoke during the day, only that the victim 

stated he had enough to pay the $95 leasing fee.

Tierra Mosley, an eyewitness who lived on Ocoee Street the day of the shooting, 

observed a man get out of the back passenger seat of the cab, “[and] when he got out [of] 

the passenger side[,] he glanced back and took off running.” She described the man as “a 

black skinny guy.” Taking note of how long it had been since the shooting, Ms. Mosley 

said she could not remember exactly what the man was wearing, but thought it was a 

black or navy hoodie and blue jeans. Ms. Mosley did not see anyone else get out of the 

cab. 
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Hamilton County 911 received a call on April 18, 2012, that the driver of a blue, 

taxi-cab van located at 1643 Ocoee Street was injured or possibly deceased. Officer 

Clayton Smith from the Chattanooga Police Department was the first on the scene. He 

saw a blue van belonging to Millennium Taxi Cab Company with the passenger side door 

open. Officer Smith discovered an injured male victim inside the cab with what he 

believed to be a gunshot wound to the head. After securing the scene and calling for 

additional help, Officer Smith spoke with individuals on the scene. Anthony Pickett 

identified himself as the 911 caller. When interviewed, Mr. Pickett provided “unclear 

answers and refused to answer some questions.” Officer Smith did not take Mr. Pickett 

in to the police station for questioning and did not speak to him again.

Joseph Montijo, a crime scene investigator for the Chattanooga Police 

Department, testified that he observed and photographed the scene but did not collect 

evidence from inside the cab because the team decided to transfer the vehicle to the 

police service center for processing in a more controlled environment. Investigator 

Matthew Puglise responded to the crime scene and deduced that the victim’s phone was 

missing. Investigator Puglise got another officer to seek out an exigency warrant in order 

to get the GPS location of the victim’s phone. Investigators utilized cell-tower ping 

location data to locate the victim’s cell phone, and it was found around thirty meters

(approximately 33 yards) from the crime scene. Investigator Montijo detailed that a 

trampled path heading northeast through the adjacent backyard was apparent on the night 

of the incident. The victim’s cell phone was located on that path and collected by 

investigators for evidence and returned to the police service center for processing. 

Investigators also located a black, zip-up sweatshirt inside a bucket discarded along the 

same path and collected it for processing as well.

As the police delved further into the investigation, Sergeant Daniel Francis spoke 

to the dispatcher for Millennium Taxi to get more information about “where the victim 

had gone, who he’d picked up[,] and what his day had looked like prior to his death.”

Sergeant Russell Davis affirmed Mr. Mansur’s description of the logbook as a place 

where Millennium Taxi kept track of any calls it received to the dispatcher: the number 

the person called from, who the person was, and the pick-up and drop-off locations. The 

only fares recorded in the logbook were the ones that went straight through Millennium 

Taxi’s dispatcher, so when a passenger contacted the taxi driver directly, that was not 

recorded in the logbook. When Sergeant Francis reviewed the logbook, there were no 

entries around the time of the victim’s death regarding the victim or a ride on Ocoee 

Street.

During his investigation, Investigator Puglise became aware that the victim had a 

“special fare,” which means that the rider had contacted the victim directly for a taxi ride, 

just before the crime occurred. By examining the victim’s phone record, the police 

determined that the “special fare” phone call had come from a number associated with 
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Defendant. Investigator Puglise called the phone number and asked for Defendant. Once 

a voice on the phone identified himself as Defendant, Investigator Puglise identified 

himself. Unprompted, Defendant said that he had lent his phone to another person earlier 

in the day. Investigator Puglise explained that he would like to talk to Defendant and 

asked for Defendant’s whereabouts. Defendant gave him an address, and Investigator 

Puglise sent some officers to the address to pick up Defendant. 

Defendant was not present at the address, but Defendant’s mother eventually 

brought him to the investigators. Investigator Puglise and Investigator Montgomery 

conducted an interview of Defendant. The State introduced a recording of this interview 

at trial. The State proceeded to play portions of the interview where the investigators 

questioned Defendant, and Defendant continued to deny involvement in the crime. 

Defendant told the investigators that he had lent his phone to a friend who must have 

called the victim. Defendant also explained that he found a phone with a cracked screen 

during the day, but he claimed that he did not know that it belonged to the victim. 

Defendant maintained that he did not call the victim and that he never fired a gun on the 

day of the crime. Defendant did, however, mention that he had been shooting off 

fireworks with his friends. Defendant adamantly stated that he did not own any gray 

Jordan shoes. When the police showed Defendant the gray Jordan shoes recovered from 

Defendant’s closet, Defendant admitted that they were his, but he maintained that he 

forgot about owning those shoes. When the prosecutor began playing a portion of the 

recording that contained statements made by Defendant’s mother, defense counsel 

objected. The trial court responded, “The exhibit’s already been admitted.” Defense 

counsel said, “Well, we would object to the playing of his mother’s statements.” The 

trial court noted that the objection was untimely and allowed the prosecutor to continue 

playing the recording. During this portion of the recording, Defendant was asked probing 

questions by his mother. However, Defendant continued to deny any involvement in the 

crime and told his mother essentially the same account of the evening as he told the 

police moments earlier. After that portion of the recording was played, the prosecutor 

ended his presentation of the recording. Later, the prosecutor entered Defendant’s 

handwritten statement as an exhibit and had Investigator Puglise read it aloud. 

Defendant’s statement reads as follows, verbatim:

When I woke up I took a shower and all that in got on Facebook and told 

cody to come get me so I started walking to the gas station that’s when I 

seen cody I got in the car he dropped me off in boone heights that’s when I 

see the little kids playing with fireworks so I stated playing with them to for 

a little bit then walked around for a while that’s when I see a phone in the 

grass so I picked it up when I see it was messed up I threw it then I started 

walking I seen cadarrius I told him to take me to east lake so when I got in 

the car we rode around for a little while the he dropped me off in east lake it 

let jay use my fone then I walked off I went over tylers sister house charge 
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my fone then left in got dropped off in by wood lawns that’s when I seen 

my mom. 

In his handwritten statement and throughout the recorded interview, Defendant 

mentioned an individual named “Jay”1that borrowed his phone. Investigator Puglise was 

never able to locate or identify an individual named “Jay,” but Investigator Puglise 

admitted on cross-examination that he never believed that an individual named “Jay” 

existed. Also on cross-examination, Investigator Puglise admitted that the victim’s phone 

did not have a broken screen or other notable damage. 

After his initial investigation at the crime scene, Investigator Montijo traveled to 

Erlanger Hospital to check on the victim and collect any necessary evidence. Investigator 

Montijo used swabs to collect physical evidence from the victim’s hands and arms, 

specifically swabs for evidence of gunshot residue and swabs of the blood on the victim’s 

arms and hands. Later at the police service center, Investigator Montijo photographed 

Defendant, collected Defendant’s clothing to test for gunshot residue, and took several 

swabs of Defendant’s hands and mouth for gunshot residue and DNA testing. At the 

time, Defendant was wearing a dark blue University of Michigan sweatshirt, jeans, and 

dark tennis shoes. Investigator Montijo received a pair of “gray white Nike hightops” 

from investigators who executed the search at Defendant’s residence. The State admitted 

photographs of the Nike hightops into evidence without objection. Later in the trial, the 

State attempted to enter the specific shoes into evidence during Sergeant Francis’s direct 

examination, and defense counsel objected on relevance grounds. The trial court 

admitted the shoes into evidence over the objection of Defendant.

The day after the shooting, Investigator Montijo processed the cab at the police 

service center and collected items and other physical evidence from inside. Despite the 

victim’s wallet being found in the cab, there was no other cash located during the 

investigation. Next, Investigator Montijo utilized a gun-shot residue kit to collect any 

physical evidence from inside the cab. The cab was later processed completely for 

fingerprint and DNA evidence and four fingerprint cards were submitted for processing. 

Three of the four samples were sufficient to compare to both the victim and Defendant’s 

fingerprints and were not a match to either and remained unidentified when run through a 

database. The fourth sample was not run through the database due to the detail of the 

fingerprint impression collected; however, it was also not identified as match to the 

victim or Defendant.

The Chief Medical Examiner, Dr. James Metcalfe, explained that the victim’s 

death occurred on April 19, 2012, around 1:50 pm, less than 24 hours after he suffered a 

 

1 The trial transcript refers to this individual as “J.” 
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gunshot wound to the right temple at approximately 5:50 pm. The autopsy indicated that 

the gunshot wound was the cause of death. 

Special Agent Hunter Greene, a forensic scientist with the Tennessee Bureau of 

Investigation (TBI), testified as an expert regarding latent print analysis. He had 

examined latent prints collected from the U.S. currency totaling $76.45 found in 

Defendant’s bedroom and the victim’s cell phone found in the grassy area around 1700 

Olive Street. Special Agent Greene determined that the prints found on the currency 

failed to show “enough detail for [him] to make a comparison.” When testing the 

victim’s cell phone, Special Agent Greene described that the non-porous surface of the 

cell phone and its battery provided some evidence of ridging from latent prints, but these 

prints were also not sufficient enough to make any kind of comparison or “reveal the 

presence of identifiable latent prints.” 

Dr. Laura Boos of the TBI’s forensic biology section testified about the DNA 

testing conducted in this case. Defendant’s DNA profile did not positively match any of 

the samples taken from the crime scene. Additionally, James Davis from the 

microanalysis unit at the TBI testified that he analyzed various items for gunshot primer 

residue. The hand swabs of both Defendant and the victim tested negative for gunshot 

primer residue. Special Agent Davis tested one sample from the victim’s taxi cab, and a 

sample from the right rear passenger seat tested positively for gunshot primer residue. 

No more samples from the taxi cab were tested because Special Agent Davis indicated 

that they would not have been helpful from crime scene reconstruction. Special Agent

Davis tested various articles of Defendant’s clothing for gunshot primer residue, and only 

Defendant’s blue jeans tested positively for gunshot primer residue. From this, Special 

Agent Davis concluded that Defendant’s blue jeans “were being worn by someone when 

a weapon was fired, or they came in contact with that weapon, or with a fired cartridge 

case.” Special Agent Davis specifically stated that the gunshot primer residue material 

that was found on Defendant’s blue jeans was not consistent with residue that would be 

left on clothing from shooting fireworks. Also, Special Agent Davis did not find any 

material on Defendant’s clothing that would be consistent with residue from shooting 

fireworks. 

Mark Hamilton, a cellular signal analyst with the Chattanooga Police Department, 

testified about the approximate location of Defendant’s cell phone and the victim’s cell 

phone at times relevant to the shooting. Initially, the phones were located in different 

areas of Chattanooga, but after Defendant’s phone made two calls to the victim’s phone, 

the victim’s phone began to move. At 5:35 p.m., Defendant’s phone and the victim’s 

phone were located in the same area. Then, Defendant’s phone and the victim’s phone 

both moved together. Mr. Hamilton elaborated by stating, “I can’t say with certainty 

they’re together but they’re very likely very close because of the timing. They would 

have to both be traveling basically following each other.” The phones continued to move 
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together until they reached the approximate location of the shooting. Defendant’s phone 

and the victim’s phone were in the same area at the time of the shooting. At 5:43 p.m., 

the victim’s phone made its last communication with a cellular tower. At 5:50 p.m., 

police received a 911 call about the shooting. Defendant’s phone continued to show 

activity and did not remain in the same location. After the police called Defendant,

Defendant’s phone ceased communication with the network, which could result from the 

phone dying or someone removing its battery. 

After the close of the State’s case-in-chief on the second day of trial, Defendant 

violated the conditions of his bond and failed to appear in court on the third day of trial. 

Following a jury-out hearing, the trial court found that Defendant was voluntarily absent, 

without cause, and proceeded with trial in Defendant’s absence. See Tenn. R. Crim. P. 

43(6)(1). Defense counsel rested without offering proof. The State was permitted to reopen proof to offer testimony regarding Defendant’s violation of the conditions of his 

bond. Defense counsel moved for a mistrial because of Defendant’s absence and the 

motion was denied.

After reopening its proof, the State called Chris Jackson, the director of 

corrections at Hamilton County Corrections, to testify about the monitoring of Defendant. 

Mr. Jackson’s department began monitoring Defendant on the Friday before Defendant’s 

trial. As an essential part of the monitoring process, a GPS ankle monitor was affixed to 

Defendant’s leg. Hamilton County Corrections continuously monitored Defendant’s 

whereabouts until the morning of the third day of trial. On that morning at 1:41 a.m., 

Defendant’s ankle monitor sent out a notification that it had been tampered with, but Mr. 

Jackson did not read the notification until around 6:00 a.m. He eventually spoke with 

Defendant’s mother on the phone. As a result of his conversation with Defendant’s 

mother, Mr. Jackson contacted the District Attorney’s Office and Key Bonding 

Company. Eventually, Defendant’s mother brought the ankle monitor to Hamilton 

County Corrections, and Mr. Jackson perceived that the band which held the monitor on 

Defendant’s leg had been cut. At the time of his testimony, Mr. Jackson did not know 

Defendant’s whereabouts. 

Officer Mark Pollard with the Chattanooga Police Department testified that he 

reported to Defendant’s residence and spoke with Defendant’s mother on the morning 

that Defendant absconded. Defendant’s mother told Officer Pollard that Defendant had 

cut off the ankle monitor and run away from the house. Law enforcement officers 

searched the area surrounding Defendant’s residence and could not locate him. 

After all of the proof had been presented, the jury convicted Defendant on Counts 

One and Three, felony murder and especially aggravated robbery. Counts Two and Four 
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were dismissed upon motion by the State.2 Pursuant to Tennessee Code Annotated 

section 39-13-208(c), the trial court announced Defendant’s automatic life sentence for 

the felony murder conviction, and following a sentencing hearing, Defendant was ordered 

to serve fifteen years concurrently for his especially aggravated robbery charge. 

Defendant’s motion for a new trial was denied on May 15, 2017, and he subsequently 

filed this timely appeal.

Analysis

I. Hearsay

Defendant argues that the trial court erred by admitting hearsay evidence that 

asserted the suspect was wearing a pair of gray shoes. The State claims that the 

statements were non-hearsay because the statements were not being offered for the truth 

of the matter asserted but rather to explain why police officers confiscated the shoes. 

Alternatively, the State argues that if the statements are found to be hearsay, their 

admission was harmless. We agree with the State’s alternative argument. 

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

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

R. Evid. 801(c). Generally, hearsay is inadmissible absent an applicable exception. 

Tenn. R. Evid. 802. However, out-of-court statements offered to show the effect on the 

listener, but not the truth of the matter asserted, are admissible as definitional nonhearsay. See Neil P. Cohen et al., Tennessee Law of Evidence, § 8.01[7] (6th ed. 2011). 

“The standard of review for rulings on hearsay evidence has multiple layers.” 

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). First, a trial court must determine 

if a statement is hearsay. Id. If the statement is hearsay, then the trial court must 

determine if it fits within one of the exceptions. Id. A trial court may need to receive 

evidence and hear testimony to make these determinations. Id. The trial court’s factual 

and credibility findings made during the course of ruling on an evidentiary motion “are 

binding on the reviewing court unless the evidence in the record preponderates against 

them.” Id. “Once the trial court has made its factual findings, the next questions —

whether the facts prove that the statement (1) was hearsay and (2) fits under one of the 

exceptions to the hearsay rule — are questions of law subject to de novo review.” Id.

(citing State v. Schiefelbien, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. 

Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)). 

 

2 The record on appeal contains no judgment documents for Counts Two and Four, but a Minute 

Entry filed on April 25, 2017, indicates that Counts Two and Four were dismissed. On remand, the trial 

court should enter judgments forms reflecting the dismissal of these counts. See State v. Berry, 503 

S.W.3d 360, 364 (Tenn. 2015) (citing Tenn. R. Crim. P. 32(e)(3)).
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In order for a statement to be hearsay, it must meet two requirements. See Tenn. 

R. Evid. 801(c). First, it must be “a statement, other than one made by the declarant 

while testifying at the trial or hearing.” Id. Second, and most importantly for this case, 

the statement must be “offered in evidence to prove the truth of the matter asserted.” Id. 

With every hearsay objection, there must be a determination by the trial court of whether 

the statement which is the subject of the objection meets the two parts of the hearsay 

definition. 

The following exchange between the prosecutor and Sergeant Francis is the basis 

for Defendant’s first argument on appeal:

STATE: And why did you collect – you collected some gr[a]y tennis shoes; 

is that correct?

SERGEANT FRANCIS: Correct.

STATE: Why did you feel like it was important to collect the gr[a]y tennis 

shoes?

SERGEANT FRANCIS: They matched the suspect[’s] description that’s 

seen leaving the scene.

STATE: What do you mean?

SERGEANT FRANCIS: The suspect –

DEFENSE COUNSEL: How is that not hearsay, Judge?

COURT: Well, I don’t think this part is being offered for the truth of the 

matter asserted. I believe that this testimony is being offered to establish 

the relevance of the piece of evidence that was collected. And so to the 

extent that there’s a hearsay objection, I’ll overrule that very respectfully.

STATE: Okay. So there was a witness on the scene; is that correct?

SERGEANT FRANCIS: Correct.

STATE: What did the witness say the suspect was wearing as far as shoes?

DEFENSE COUNSEL: Object to hearsay, Judge.

COURT: Overruled.
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STATE: What did the witness say the suspect was wearing as far as 

[shoes]?

SERGEANT FRANCIS: A pair of Jordans.

STATE: Did the witness say whether or not what color these Jordans were?

SERGEANT FRANCIS: I believe they advised black and gray.

STATE: And that’s why you collect the gray Nike Jordans from 

[Defendant’s] room.

SERGEANT FRANCIS: Correct.

Defendant argues that the State presented indirect hearsay when the prosecutor 

asked, “Why did you feel like it was important to collect the gr[a]y tennis shoes?” and 

Sergeant Francis responded, “They matched the suspect[’s] description that’s seen 

leaving the scene.” Obviously, the jury can infer from the question and answer that a 

witness stated that the suspect was wearing gray shoes. The Tennessee Law of Evidence

treatise explains indirect hearsay and provides a classic example of indirect hearsay:

Sometimes witnesses, especially police, are tempted by lawyers to get in 

hearsay through the back door.

Q. After talking to the informant – and don’t tell the jury what the 

informant told you – what did you do?

A. I went to the luggage room, found the red suitcase with the defendant’s 

name on it, and found cocaine inside. 

Most jurors will get the message intended from this indirect hearsay. They

will have learned what the informant said, even though no words from the 

informant were actually repeated. The testimony is hearsay and 

inadmissible; courts should close such back doors. This testimony should 

be permitted only if the effect on the listener is somehow relevant. For 

example, in the above hypothetical if the issue is whether the officer had 

probable cause to search the suitcase in the luggage room, the evidence 

would not be hearsay. It would be used to prove the effect on the listener, 

not the truth of the informant’s statement. 
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Neil P. Cohen et al., Tennessee Law of Evidence, § 8.01[11][b] (6th ed. 2011). In State v. 

Lloyd Rush Pratt, Jr., this Court found indirect hearsay in the following exchange:

[State]: Okay. And based on your investigation, you testified that 

[Defendant] was the driver. Was that what you determined?

[Trooper Allen]: Yes, I did come to the conclusion that he was the driver.

[State]: Okay. And what was that conclusion based on?

[Trooper Allen]: Statement that was told to me by the – by the passenger 

and by the sheriff. . . .

No. M2017-01317-CCA-R3-CD, 2018 WL 4005390, at *9 (Tenn. Crim. App. Aug. 20, 

2018), no perm. app. filed. In State v. Robert Spencer, this Court explained the scenario 

where it found indirect hearsay by stating:

Agent Flint’s testimony was able to relay what the “cooperating source” 

had told him about the house on Olympic Street and the Defendant in an 

indirect way. Agent Flint’s testimony that the house and the Defendant 

matched the descriptions provided by the source coupled with his testimony 

about his background in narcotics investigations allowed the jury to learn 

what the source told Agent Flint, that the Defendant was selling cocaine 

from the house on Olympic Street.

No. W2014-02454-CCA-R3-CD, 2016 WL 325460, at*4 (Tenn. Crim. App. Jan. 27, 

2016), perm. app. denied (Tenn. June 24, 2016). In this case, like the examples above, 

Sergeant Francis impliedly relayed an eyewitness’s statement to the jury – that the

suspect was wearing gray shoes. 

This implied message is made even more clear when the prosecutor directly asked 

Sergeant Francis, “What did the witness say the suspect was wearing as far as [shoes]?” 

He replied, “A pair of Jordans.” The prosecutor further probed, “Did the witness say 

whether or not what color these Jordans were?” Sergeant Francis responded, “I believe 

they advised black and gray.” The prosecutor said, “And that’s why you collect[ed] the 

gray Nike Jordans from [Defendant’s] room.” “Correct,” said Sergeant Francis. Clearly, 

both directly and indirectly, the State offered an out-of-court statement by someone other 

than Officer Francis that asserted the suspect was wearing a pair of “gr[a]y tennis shoes” 

or a pair of black and gray Jordans. 

In order for a direct or indirect statement to be hearsay, it must have been offered 

for the truth of the matter asserted. Thus, as a part of our hearsay analysis, we must 
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discern the purpose for which the statement is being offered. The context of the question 

and answer reveals its purpose. At trial, defense counsel objected to the relevance of a 

pair of gray shoes, and the prosecutor was attempting to lay the foundation to establish 

the relevance of the gray shoes when he elicited the aforementioned statement, both 

directly and indirectly. In sum, we are presented with a scenario where potential hearsay

statements are being used in an attempt to lay the foundation for the admissibility of a 

piece of physical evidence. 

The problem is that for the statement to have any probative value in the analysis of 

the relevancy of the gray shoes, the matter asserted in the statement (the color of the 

suspect’s shoes) must be true. Unlike the example provided in Tennessee Law of 

Evidence where the indirect statement established the officer’s probable cause to conduct 

a search, Sergeant Francis’s reason for collecting the shoes during a search of 

Defendant’s room has absolutely nothing to do with the relevancy of the gray shoes,

themselves, at trial. In order to be treated as non-hearsay, the statement would have to 

have some probative value outside of the truth of the matter asserted therein. Here, the 

statement would only be relevant if it was true, and thus, the statements do not have any 

probative value outside of their truthfulness. Said another way, there is no probative 

value in the mere fact that the statement was made. In short, it is inadmissible hearsay. 

However, error by the trial court does not automatically entitle Defendant to relief. 

A defendant is entitled to relief from a non-constitutional error only if it “more probably

than not affected the judgment or would result in prejudice to the judicial process.” State 

v. Rodriquez, 254 S.W.3d 361, 374 (Tenn. 2008). The indirect hearsay statement linked 

Defendant’s possession of a pair of gray shoes with a description that the suspect was 

wearing gray shoes. We view this connection as weak and tenuous, at best. In our 

assessment, there was other evidence that provided a much stronger connection between 

Defendant and the crime. The victim’s phone records revealed a call from Defendant

prior to the victim’s death, Defendant’s cell phone was in the same approximate location 

as the victim’s cell phone at the time of the shooting, and Defendant had gunshot residue 

on his pants. We cannot conclude that the dubious connection made through the gray 

shoes more probably than not affected the judgment or resulted in prejudice to the 

judicial process. The error was harmless. 

II. Confrontation Clause

Defendant also contends that the admission of the aforementioned indirect hearsay 

was a violation of his right to confront the witnesses against him under the Fourteenth 

Amendment of the United States Constitution and Article I, section 9 of the Tennessee 

Constitution. The State claims that Defendant has waived this issue and does not address 

its merits in its brief. We agree with the State that the issue is waived, but we will review 

for plain error. 
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Defendant objected to the statement on hearsay grounds, but he did not argue that 

the statement was inadmissible on confrontation clause grounds. Also, Defendant did not 

argue that the statement was inadmissible on confrontation clause grounds in his motion 

for new trial. “It is well-settled that an appellant is bound by the evidentiary theory set 

forth at trial, and may not change theories on appeal.” State v. Alder, 71 S.W.3d 299, 303 

(Tenn. Crim. App. 2001) (citing State v. Barnes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 

1993). Therefore, the issue is waived. 

When an issue is waived, we are limited to plain error review. State v. Jordan, 

325 S.W.3d 1, 57 (Tenn. 2010). Our supreme court has succinctly described the 

discretionary nature of the plain error doctrine as follows:

In criminal cases, the doctrine of plain error permits appellate courts to 

consider issues that were not raised in the trial court. [Tennessee Rule of 

Appellate Procedure] 36(b), the codification of the plain error doctrine,

states in part that “[w]hen necessary to do substantial justice, an appellate 

court may consider an error that has affected the substantial rights of a party 

at any time, even though the error was not raised in the motion for a new 

trial or assigned as error on appeal.” We have cautioned, however, that the 

discretionary authority to invoke the plain error doctrine should be 

“sparingly exercised,” State v. Bledsoe, 226 S.W.3d [349,] 354 [(Tenn. 

2007)], because “appellate courts do not sit as self-directed boards of legal 

inquiry and research, but essentially as arbitrators of legal questions 

presented and argued by the parties before them.” State v. Northern, 262 

S.W.3d [741,] 766 [(Tenn. 2008)] (Holder, J., concurring and dissenting) 

(quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).

State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014). To determine whether a trial error rises 

to the level of justifying “plain error” review, we look to the following five factors:

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

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

substantial right of the accused must have been adversely affected; (d) the 

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

the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 

626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record 

before this Court will recognize the existence of plain error, and complete consideration 

of all the factors is not necessary when it is clear from the record that at least one of the 

factors cannot be established. Bishop, 431 S.W.3d at 44. Even if all five factors are 
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present, “the plain error must be of such a great magnitude that it probably changed the 

outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642). 

Defendant’s brief contains no mention of plain error analysis, and he does not 

expressly address any of the plain error factors. Defendant bears the burden of 

persuading this Court that the trial court committed plain error and that the error probably 

changed the outcome of the trial. See State v. Martin, 505 S.W.3d 492, 505 (Tenn. 2016). 

Here, Defendant has not carried his burden of persuasion because Defendant did not 

establish enough facts for us determine whether the hearsay statement was testimonial. 

See Crawford v. Washington, 541 U.S. 36, 59 (2004). The multi-factor test first found in 

State v. Maclin, 183 S.W.3d 335, 349 (Tenn. 2006) and restated in State v. Lewis, 235 

S.W.3d 136, 143 (Tenn. 2007) is still relevant to our determination of whether a 

statement is testimonial, though it is not an exhaustive list of considerations that ought to

be applied mechanically. State v. Franklin, 308 S.W.3d 799, 818 (Tenn. 2010). Those 

factors include the following:

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

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

degree of formality attending the circumstances in which the statement was 

made; (4) whether the statement was given in response to questioning, 

whether the questioning was structured, and the scope of such questioning; 

(5) whether the statement was recorded (either in writing or by electronic 

means); (6) the declarant’s purpose in making the statements; (7) the 

officer’s purpose in speaking with the declarant; and (8) whether an 

objective declarant under the circumstances would believe that the 

statements would be used at a trial.

Lewis, 235 S.W.3d at 145 (citing Maclin, 183 S.W.3d at 349). Of those factors, the proof 

in this case only allows us to consider factor (1) because we know the indirect statement 

came from an observer. There is simply no evidence which pertains to the remainder of 

the factors. Therefore, we are unable to discern whether the statement was testimonial, 

and likewise, Defendant has failed to prove that a clear and unequivocal rule of law was 

breached. 

For the same reason that the hearsay error is harmless, Defendant cannot show that 

his alleged confrontation clause violation was of such a great magnitude that it probably 

changed the outcome of the trial. The other evidence tying Defendant to the crime is 

much stronger than the connection via the gray shoes. For these reasons, Defendant is 

not entitled to plain error relief. 

III. Recording of Defendant’s Conversation with his Mother
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Defendant claims that he had a reasonable expectation of privacy in his 

conversation with his mother in the police interview room, and thus, the recordings of 

those statements should be subject to the exclusionary rule because they were obtained in 

violation Fourth Amendment of the United States Constitution and Article I, section 

seven of the Tennessee Constitution. The State contends that Defendant waived 

consideration of the issue by failing to lodge a timely objection and that Defendant is not 

entitled to plain error review. We agree with the State. 

We stress the importance of a timely objection. “This court is extremely hesitant 

to put a trial court in error where its alleged shortcoming has not been the subject of a 

contemporaneous objection.” State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 

2000). Failure to contemporaneously object constitutes a waiver of the issue on appeal. 

State v. Chad Lewis Monette, No. M2006-02462-CCA-R3-CD, 2008 WL 4211602, at *3

(Tenn. Crim. App. Sept. 4, 2008), perm. app. denied (Tenn. Feb.17, 2009); See Tenn. R. 

App. P 36(a). Here, the record reveals that the prosecutor informed defense counsel of 

the sections of the recording that the prosecutor intended to play at trial, and prior to the 

admission of the recording, the prosecutor said, “I intend to admit the entirety of the 

recording, which is significant.” The trial court asked defense counsel, “Any 

objections?” “No, Judge,” responded defense counsel. During further discussion about 

the recording, the prosecutor said, 

There are portions of the recording where the interview is not taking place. 

I’ve provided those portions or timed those portions, provided those to the 

defense counsel, and I intend to admit the entirety of the recording, which 

is significant. But I intend to skip through those times where the interview 

is not taking place. 

Again, the trial court asked, “Any objection?” “No, Judge,” replied defense counsel. 

Defendant has not alleged any discovery issues. So, we presume defense counsel had 

access to the recording and knew the contents of the entire recording. Thus, the point at 

which the entire recording was offered as an exhibit would have been the proper time to 

object to any specific portions of the recording. Defense counsel waited until the 

prosecutor played the portion of the recording showing Defendant’s conversation with his 

mother before objecting. The objection was untimely, and this issue has been waived. 

We are confined to plain error review of this issue, and we will review the issue 

according to the above-listed principles. We decline this opportunity to delve deeply into 

the nuance of Fourth Amendment jurisprudence and whether a reasonable expectation of 

privacy attaches to a conversation with a family member in a police station because, 

ultimately, any error was not of such great magnitude that it probably changed the 

outcome of the trial. Throughout that portion of the recording, Defendant maintains his 

innocence in the face of probing questions from his mother. From our perspective, 
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Defendant’s statements to his mother do not differ significantly from his earlier 

statements to the officers such that they could have been used for impeachment. On the 

spectrum between innocence and guilt, this evidence would not even move the needle. 

This is especially the case where other evidence directly tied Defendant to the crime, and 

the Defendant’s guilt was strongly implied by his absconsion in the middle of the night 

and absence on the second day of trial. Defendant is not entitled to plain error relief on 

this issue. 

Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed. 

However, we remand this case for entry of judgment documents reflecting the dismissal 

of Counts Two and Four. See State v. Berry, 503 S.W.3d 360, 364 (Tenn. 2015) (citing 

Tenn. R. Crim. P. 32(e)(3)).

____________________________________

TIMOTHY L. EASTER, JUDGE