State v. Dwight Miller

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1998 SESSION
FILED
December 29, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) C.C.A. No. 02C01-9708-CC-00300
)
vs. ) Haywood County
)
DWIGHT MILLER, ) Hon. Dick Jerman, Jr., Judge
)
Appellant. ) (First Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS W. CRIDER JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
J. DIANE STOOTS PETER M. COUGHLAN
WILLIAM D. BOWEN Asst. Attorney General
Asst. District Public Defenders 425 Fifth Ave. N., 2d Floor
107 S. Court Square Nashville, TN 37243-0493
Trenton, TN 38382
CLAYBURN L. PEEPLES
District Attorney General
LARRY HARDISTER
GARRY BROWN
Asst. District Attorneys General
110 College St., Ste. 200
Trenton, TN 38382
OPINION FILED:________________
REVERSED AND REMANDED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Dwight Miller, appeals from the conviction of first
degree murder he received at the conclusion of a jury trial in the Haywood County
Circuit Court. Miller is presently serving a life sentence in the Department of
Correction for his crime. In this direct appeal, he raises numerous issues for our
review:
1. Whether the state violated Brady v. Maryland by failing to
provide the defense with information about uncharged crimes
allegedly committed by two prosecution witnesses.
2. Whether the trial court erred by asking defense counsel
in the presence of the jury why defense counsel kept
asking the same question of the state's witnesses.
3. Whether the trial court erred by placing one of the
state's witnesses in custody as a means of improving
her memory after the witness testified she could not
remember events about which she had previously given
a statement.
4. Whether the trial court properly denied the defense
motion to have the jury view the crime scene, or
alternatively, a videotape of the crime scene.
5. Whether the trial court properly determined that a
witness was unavailable and allowed her testimony at
the preliminary hearing to be admitted as evidence.
6. Whether the trial court had the authority to reverse its previous
ruling granting the defendant's motion for a new trial.
7. Whether the trial court properly prevented the defense
from viewing a full Tennessee Bureau of Investigation
report.
8. Whether the cumulative effect of the alleged errors has
prejudiced the defendant and compromised the judicial
process.
After conducting a thorough review of the parties' briefs and the applicable law, we
find reversible error which requires that we remand the case for a new trial.1
1
Our discussion of the issues is ordered differently than as presented by
the defendant.
2
In the light most favorable to the state, the facts of this case as
relevant to this appeal are as follows. The defendant shot and killed Donald Rice
in the early morning hours of April 20, 1995. Rice and the defendant were both
sitting in their cars, which were parked driver's window to driver's window, outside
a housing project in Brownsville, Tennessee when the defendant fired the fatal shot.
The next day, Rice's body and car were discovered in separate locations by law
enforcement officers.
Eyewitness testimony of Clement Harris, who was sitting outside the
housing project at the time of the crime, established the defendant as the
perpetrator.
The preliminary hearing testimony of Nina Champion, who the court
declared was an unavailable witness, was read into the record. It established that
Champion saw a shotgun in the trunk of the defendant's car shortly before the
murder.
A law enforcement officer testified that he found a shotgun which
smelled as if it had been recently fired in the defendant's home, along with a spent
and a live shotgun shell. The shells were of the same type shot as was recovered
from the victim's body.
The medical examiner testified that the victim died from a shotgun
wound to the head.
Sheila Bernil and Kathy Blackwell, who were roommates, testified that
the defendant came to their home around the time of the murder and was very
insistent that he be allowed inside. They did not allow him entry, but Blackwell saw
3
the defendant a few hours later. The defendant told her that the victim was dead.
At this time, the victim's body had not yet been discovered.
After the jury returned a guilty verdict and the court sentenced the
defendant to life imprisonment, the defense filed a motion for new trial. The trial
court granted the motion in March 1997, finding that the state had not been
forthcoming with the defense about a non-prosecution "deal" with one of the state's
witnesses. However, the court filed an "amended order" overruling the motion for
new trial on July 7, 1997 following the court's receipt and review of a Tennessee
Bureau of Investigation ("T.B.I.") report which addressed the alleged prior
uncharged misconduct of the state's witness who was the purported beneficiary of
the "deal." The T.B.I. prepared the report as a result of the trial court's order that
the prosecution request the agency to investigate the matter. The trial court
provided the defense with some, but not all of, the documents generated by the
T.B.I. The entire report was filed under seal by the trial court and is contained in the
record on appeal.
Against this unusual backdrop, the defendant calls upon us to
consider his several allegations of error.
I
First, we consider whether the trial court properly overruled the
defendant's motion for a new trial. Intertwined in this issue are the considerations
of (1) whether the trial court correctly determined there was no Brady violation
requiring the grant of a new trial, (2) whether the court properly considered
information contained in a report from the T.B.I. in making its decision without
providing the entire report to the defense, and (3) whether the court, after initially
granting the defendant's motion for a new trial, had the authority months later to
4
vacate the order and overrule the motion. We begin with consideration of the latter
issue.
A judgment in a criminal case becomes final 30 days after its entry or
overruling of a motion for new trial, and thereafter, a trial court has no jurisdiction
to modify it. State v. Charles Alvin Haney, No. 839 (Tenn. Crim. App., Knoxville,
Mar. 29, 1989) (citations omitted); see also State v. Jack Lee Thomas, Jr., No.
03C01-9504-CR-00109, slip op. at 2-3 (Tenn. Crim. App., Knoxville, Nov. 15, 1995).
We are aware of no rule, however, which imposes the same restrictions on rulings
of the trial court which do not terminate a criminal case.
In determining whether the trial court retained jurisdiction to reverse
the order beyond 30 days, we refer to the Rules of Appellate Procedure. As a
general proposition, only those actions of a trial court which conclude a prosecution
form the proper basis for an appeal as of right. See Tenn. R. App. P. 3(b).
Interlocutory actions of the trial court are immediately reviewable by the appellate
court only by permission. See Tenn. R. App. P. 9, 10; accord State v. Joseph D.
Bishop, No. 01C01-9309-CR-00333 (Tenn. Crim. App., Nashville, Sept. 1, 1994)
(interlocutory appeal of trial court's grant of a new trial); State v. Johnny Joe Crass,
Jr., No. 03C01-9211-CR-418 (Tenn. Crim. App., Knoxville, Mar. 29, 1994); State v.
John Edward Coleman, No. 88-302-III (Tenn. Crim. App., Nashville, Mar. 21, 1989).
With respect to appeals as of right, Rule of Appellate Procedure 4(c) provides for
various dispositions from which a party to a criminal action may take an appeal as
of right under Rule 3 -- denial of a motion for a new trial, grant or denial of a motion
for judgment of acquittal, grant or denial of a motion for arrest of judgment, or grant
or denial of a motion for suspended sentence.2 Unlike any of these rulings, which
2
Failure to take an appeal within the time allowed brings finality to the
ruling, which generally is no longer subject to attack on its merits. See Tenn. R.
5
can generally be characterized as ones which bring a prosecution to an end at the
trial level, an order granting a new trial has the singular effect of ensuring further
proceedings in the prosecution. In other words, a grant of a new trial is not an
action which brings finality to a criminal prosecution.
Accordingly, we believe the trial court acted within its jurisdiction when
it reversed its previous ruling granting the defendant's motion for a new trial. The
grant of the motion did not have the effect of concluding the proceedings. See
Tenn. R. App. P. 3(b). To the contrary, the trial court's grant of a new trial ensured
that further proceedings would follow. Because the order was one of this type, it did
not become irrevocable by the trial court after the expiration of 30 days. But cf.
Benson v. Fowler, 43 Tenn. App. 147, 306 S.W.2d 49 (1957) (order granting motion
for new trial subject to alteration or recall for remainder of term of court or 30 days
if term lasted that long); Turney v. Lamont, 60 Tenn. (1 Baxt.) 265 (1872) (error to
reverse ruling granting motion for new trial made conditional on payment of costs
because costs had not been paid two years after motion granted).
Having established the trial court's jurisdiction to revisit its order, we
turn to the question of whether it reached the correct determination when it did so.
The decision whether to grant a new trial is a matter for the sound discretion of the
trial court. State v. Burns, 777 S.W.2d 355, 360 (Tenn. Crim. App. 1989). Thus,
our inquiry is whether the trial court abused its discretion.
In this case, the basis for the initial grant of a new trial was the court's
concern that the state had violated the requirements of Brady v. Maryland. In Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the United States Supreme Court
App. P. 4(a) (appeal as of right must be taken within 30 days of entry of
judgment, although time period is not jurisdictional in criminal cases).
6
held that the prosecution has the duty to furnish exculpatory evidence to the
accused upon request. Any "suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97. The duty to disclose
extends to all "favorable information" regardless of whether the evidence is
admissible at trial. State v. Marshall, 845 S.W.2d 228, 232-33 (Tenn. Crim. App.
1992); Branch v. State, 4 Tenn. Crim. App. 164, 168, 469 S.W.2d 533, 536 (1969).
In United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985), the
Supreme Court held that both exculpatory and impeachment evidence fall under the
Brady rule. Cf. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972)
(nondisclosure of state's deal with witness violated defendant's due process rights).
Before an accused is entitled to relief under Brady, he must establish
several prerequisites: (a) the prosecution must have suppressed the evidence; (b)
the evidence suppressed must have been favorable to the accused; and (c) the
evidence must have been material. See Bagley, 473 U.S. at 674-75, 105 S. Ct. at
3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Workman v. State, 868
S.W.2d 705, 709 (Tenn. Crim. App. 1993); State v. Marshall, 845 S.W.2d 228, 232;
Strouth v. State, 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). In State v.
Spurlock, this court recognized a fourth prerequisite to relief, that "the accused must
make a proper request for the production of the evidence, unless the evidence,
when viewed by the prosecution, is obviously exculpatory in nature and will be
helpful to the accused." State v. Spurlock, 874 S.W.2d 602, 609 (Tenn. Crim. App.
1993) (citations omitted). The defendant bears the burden of proving a Brady
violation by a preponderance of the evidence. State v. Edgin, 902 S.W.2d 387, 389
(Tenn. 1995).
7
In the case sub judice, Sheila Bernil, a prosecution witness, was
alleged to have been involved with Barbara Blade in stealing, forging and cashing
checks that belonged to another individual. Blade implicated Bernil and was
ultimately convicted for the scheme. Bernil was never prosecuted, and the defense
argued that no information about Bernil's alleged wrongdoing was ever revealed.
The defense further questioned whether some sort of non-prosecution agreement
existed between Bernil and the state, consideration for which was Bernil's testimony
in the defendant's murder trial.
At the first of four hearings on the motion for new trial, Investigator
Johnny Blackburn testified that he was aware that Bernil had been implicated by
Barbara Blade in a forgery scheme when Blade was arrested thereon. Investigator
Blackburn had investigated this information but had not been able to develop
sufficient evidence to charge Bernil. Significantly, he had been unable to locate a
key witness. At this first hearing, the trial court indicated its skepticism of the
prosecution's claim there was no deal with Bernil. The court asked the prosecution
to request a T.B.I. investigation of whether there was sufficient evidence to charge
Bernil, whether a non-prosecution deal had been struck with Bernil, and whether the
prosecution or the officers knew Bernil might be charged with a crime at the time of
her testimony.
At the second hearing held seven days later, the trial court became
inflamed and ordered a new trial when the prosecution announced that it had not
contacted the T.B.I. about the investigation. However, the court insisted on the
T.B.I. inquiry, even after making his ruling.
8
Thereafter, the T.B.I. investigation took place,3 although its scope
appears to have been limited to the facts of Bernil's alleged crimes. The report
does not reflect any investigation of alleged deal-making between Bernil and the
state.4 The report includes Blade's statement implicating Bernil in the scheme. A
grocery store manager who refused to cash a check for Blade recalled Bernil
attempting to cash a check on the theft/forgery victim's account the same day.
A letter contained in the sealed portion of the record indicates that the
T.B.I. investigation report was sent to the trial court ex parte by the District Attorney
General.5 The defense apparently learned that the report had been completed and
moved the court to receive access to the report.6 A third hearing was held, at which
the trial court announced that it had reconsidered its previous grant of a new trial in
light of the information contained in the T.B.I. report. The court went on to vacate
its previous order granting a new trial and substituted in its place an order denying
the defendant's motion for a new trial. The court acknowledged that it was catching
the defense by surprise and allowed, "I'll be glad for [the defense] to file any
motions . . . to attack [the ruling]." The court also granted in part and denied in part
the defendant's motion for access to the T.B.I. report, physically delivering portions
3
The trial court ordered the prosecution to contact the T.B.I. and request
the inquiry. When the court learned that the prosecution had not done so, the
court stated on the record that it would contact the director of the T.B.I. himself.
However, the T.B.I. report indicates the investigation was commenced upon
request of the District Attorney General.
4
There is a statement by the investigating agent that Bernil had not been
charged because Brownsville Police Department officers were unable to obtain
sufficient evidence of Bernil's involvement after conducting witness interviews.
The report contains no information identifying the source of this information -- no
statements of the Brownsville officers who conducted these interviews, no
identification of the witnesses interviewed by the Brownsville officers, and no
transcription of the interviews themselves.
5
The cover letter from the district attorney general to the trial court does
not reflect that the defense was copied with the communication.
6
The defense claimed the report might contain information relevant to the
defendant's upcoming retrial.
9
of the file to the defense in open court. He ordered the complete file sealed and
made a part of the record.
Thereafter, the defense filed an amended motion for new trial alleging
the trial court erred in denying complete access to the T.B.I. file and in reversing its
previous order on the motion for new trial. An affidavit of Jimmy Johns, who was
the witness the investigator claimed he had been unable to locate, was attached to
the amended motion. In it, Mr. Johns claimed he had unwittingly passed a check
at Bernil's request which was drawn on the theft/forgery victim's account. Mr.
Johns further averred that he had never been interviewed by the Brownsville Police
or the T.B.I. A fourth and final hearing was held at which the court upheld its rulings
from the third hearing.
Initially, we find ourselves unable to address the defendant's Brady
concern vis-a-vis the trial court's ultimate ruling on the new trial motion. As
discussed above, one of the Brady requirements is that the information in question
be material. In this case, the information relied upon by the trial court in making its
final ruling on the motion for new trial was never disclosed to the defense. The
nondisclosure had the effect of denying the defense an opportunity to demonstrate
the materiality of some or all of the information in the T.B.I. report, and we are
hesitant to speculate in that regard.7
Notwithstanding our inability to resolve the Brady question on the
7
The defense has the burden of proving a Brady violation. However, in
this case, the trial court's actions denied the defense an opportunity to carry its
burden. Furthermore, the materiality of the information in the T.B.I. report may
not be readily apparent to this court, as the defense may be in possession of
additional evidence which was not placed into the record but which would
demonstrate the materiality of the T.B.I. report information. The defendant
cannot be held at fault for failing to present evidence which he had no way of
knowing was germane.
10
record before us, we find another issue determinative of the outcome. This court
is concerned with the combined activity of the trial court in procuring the T.B.I.
investigation, receiving it ex parte, and declining to disclose all of the report to the
defense. In effect, the trial court inquired into facts-in-issue outside the record, and
even though the court relied on the results of its inquiries, it kept its discoveries from
the defense. Such a situation deprives the defendant of his opportunity to be heard
in that he cannot respond to unknown information.
We recently addressed a similar situation in State v. Hart, 911 S.W.2d
371, 376 (Tenn. Crim. App. 1995). In that case, the petitioner sought a writ of error
coram nobis. He claimed that the child whom he had been convicted of sexually
abusing had recanted her inculpatory trial testimony. Hart, 911 S.W.2d at 372. A
hearing was conducted, and the child recanted her trial testimony. Hart, 911
S.W.2d at 373. After the hearing, however, the child apparently recanted her
recantation; in other words, she reasserted the veracity of her trial testimony. Hart,
911 S.W.2d at 374. The child's reaffirmation of her trial testimony came to the
court's attention outside the record. Hart, 911 S.W.2d at 375-76. Further, the trial
court also learned from sources outside the record that the petitioner had performed
unfavorably on a polygraph examination. Hart, 911 S.W.2d at 375-76. In its order
denying the petition for writ of error coram nobis, the trial court recited as findings
of fact both the victim's recantation of her recantation and the unfavorable polygraph
performance. Hart, 911 S.W.2d at 375-76.
In finding reversible error in Hart, we observed, "It is a well-established
principle of law that a 'judge is not permitted to make an investigation of a case,
even an inadvertent one, off the record, and then base a holding on the information
11
obtained . . .'"8 Hart, 911 S.W.2d at 376 (citations omitted). Such is contrary to the
"correct ideals of judicial procedure," violative of the Code of Judicial Conduct and
the Rules of Evidence, and is incompatible with appellate review. Hart, 911 S.W.2d
at 376 (citations omitted).
In the case at bar, the trial court sought information outside the record
and used it as the basis for its final ruling denying the motion for a new trial. These
actions were amplified by the trial court's failure to disclose the information to the
defense, thereby denying the defense of the opportunity to evaluate the information
and respond to it. Furthermore, the trial court received this information in a
prohibited ex parte communication. See Tenn. R. Sup. Ct. 8, DR 7-110(B)
(prosecutors); Tenn. R. Sup. Ct. 10, Canon 3(B)(7) (judges).
Given the multiplicity of these errors, we are compelled to find, in
accord with Hart, that reversible error has occurred. If this were the only impropriety
in the record, we would remand the matter with instructions that the T.B.I. report be
disclosed to the defense and a new hearing on the motion for new trial be held
following that disclosure. At such hearing, the defense would have the opportunity
to present its case for Brady violations in light of the information contained in the
T.B.I. report. However, in light of our discussion in section VI below, there is other
error of record which warrants the grant of a new trial. Accordingly, the defendant
will receive appropriate relief by the prosecution providing the T.B.I. report during
pre-trial discovery in the proceedings which will take place on remand.9
8
We do not consider the trial court's inclusion of the sealed report in the
appellate record to be curative of Hart's prohibition against an "off the record"
judicial investigation.
9
Any issues which present themselves based upon information contained
in the report are capable of being addressed in pre-trial motions.
12
II
There is a second component to the defendant's Brady claim which
we did not discuss above because it was not raised until after the trial court had
reversed its order granting a new trial. The defendant asks us to find prejudicial
error in the state's failure to disclose information that Clement Harris and Sheila
Bernil were involved in a forgery scheme which is apparently unrelated to the one
involving Bernil and Blade. The record contains Bernil's written confession and an
officer's report implicating both Bernil and Harris.10 Again, we find ourselves unable
to resolve this issue on the record before us.
As stated above, one of the Brady considerations is materiality. In
Kyles v. Whitley, 514 U.S. 419, 436, 115 S. Ct. 1555, 1567 (1995), the Supreme
Court observed that the materiality of the suppressed evidence should be
considered "collectively, not item-by-item." See also State v. Edgin, 902 S.W.2d
387, 389 (Tenn. 1995). In this case, we are unable to assess the materiality of the
impeachment evidence against these two key prosecution witnesses collectively,
per Kyles, because we have no way of assessing the materiality of the undisclosed
evidence discussed in section I. above.
That said, our inability to assess this materiality of this undisclosed
evidence is of no consequence in light of our grant of a new trial discussed in
section VI below. However, had we not found reversible error elsewhere in the
record, we would be constrained to remand this matter to the trial court for
consideration of the materiality of this evidence collectively with the other
undisclosed evidence discussed above, as mandated by Kyles.
10
This information appears to have been disclosed as "pre-trial discovery"
in preparation for the new trial (that new trial later being pretermitted by the trial
court's ruling reversing the grant of a new trial).
13
III
We move next to the question of whether the trial court properly
determined that Nina Champion was unavailable and allowed her testimony from
the preliminary hearing to be admitted as evidence. The defendant claims his
constitutional right of confrontation was impermissibly curtailed by the admission of
Champion's former testimony. On appellate review, the trial court's determination
of admissibility will not be reversed unless the court abused its discretion in
admitting or excluding the challenged evidence. See, e.g., State v. Bigbee, 885
S.W.2d 797, 806 (Tenn. 1994).
In Tennessee, admission of former testimony is governed by
Tennessee Rule of Evidence 804, which provides a hearsay exception for the
former testimony of a declarant who is unavailable as a witness if the testimony was
. . . given as a witness at another hearing of the same or a different
proceeding or in a deposition taken in compliance with the law in the
course of the same or another proceeding, if the party against whom
the testimony is now offered had both an opportunity and a similar
motive to develop the testimony by direct, cross, or redirect
examination.
Tenn. R. Evid. 804(b)(1). Before such testimony will be admitted, however, the
proponent must establish that the witness "is absent from the hearing and the
proponent of [the] statement has been unable to procure the declarant's attendance
by process." Tenn. R. Evid. 804(a)(5).
Further, in cases such as the one at bar in which the prosecution
seeks to offer the former testimony of an unavailable witness, we have said that the
state must establish two prerequisites in order to satisfy the defendant's
constitutional right of confrontation. First, the state must show that the declarant is
truly unavailable after good faith efforts to obtain her presence, and second, that the
14
evidence carries its own indicia of reliability. 11 State v. Arnold, 719 S.W.2d 543, 548
(Tenn. Crim. App. 1986) (stating the rule of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct.
2531 (1980)).
In the case at bar, both prongs of the prerequisite test are satisfied.12
First, with respect to the prosecution's good faith effort to secure Nina Champion's
presence, Officer Johnny Blackburn testified that he went to the home of Sam Ethel
Williams, who is Ms. Champion's mother, two or three times over the course of a
year and questioned her about her daughter's whereabouts. Officer Blackburn
reasonably followed up on the leads that Ms. Williams provided; however, it would
be an understatement to say that she was less than forthcoming with Officer
Blackburn. See Roberts, 448 U.S. at 75-76, 100 S. Ct. at 2544 (great improbability
that further efforts would yield favorable results removes them from realm of
11
At one time, there was a third requirement, that the evidence not be
crucial or devastating. See State v. Henderson, 554 S.W.2d 117, 119 (Tenn.
1977). More recent caselaw seems to have disposed of this third requirement.
See, e.g., State v. Grover Jesse Campbell, No. 1113, slip op. at 6, n.2 (Tenn.
Crim. App., Knoxville, Dec. 20, 1989) (noting supreme court's denial of
permissive appeal in two cases in which court of criminal appeals had dispensed
with "crucial and devastating" rule); see also Arnold, 719 S.W.2d at 548 ("crucial
and devastating" rule inapplicable where right of confrontation has been
satisfied). However, the rules of evidence make no mention of this additional
requirement.
12
The record reflects that a brief hearing was conducted to determine the
admissibility of Ms. Champion's former testimony. No evidence was presented;
the state relied entirely on the assertions of the assistant district attorney about
law enforcement's efforts to locate the witness. As we observed in State v.
Armes, 607 S.W.2d 234, 237 (Tenn. 1980), "The prosecuting attorney's
statement to the Court concerning the efforts of the State's investigator to locate
the witness cannot be considered as evidence of proof on the issue of the
State's good faith effort." Notwithstanding, the trial court allowed admission of
the witness's former testimony. Although the state should have been held to its
burden of production, we are able to determine from other information in the
record that the error was harmless. Specifically, the record reveals that the
witnesses with relevant information about the state's efforts to locate Ms.
Champion were questioned outside the presence of the jury in a hearing to
determine the admissibility of hearsay statements allegedly made by Champion
to her mother. The testimony adduced at this hearing, which is discussed in the
body of this opinion, establishes that the previous testimony was properly
admitted.
15
reasonableness required of prosecution). Process had been issued. According to
Ms. Williams, someone had been at her home attempting to serve a subpoena on
Champion. Second, "the indicia of reliability requirement is met by those hearsay
exceptions resting upon such solid foundations that admission of virtually any
evidence within them comports with the right of confrontation." State v. Causby,
706 S.W.2d 628, 631 (Tenn. 1986); see also Roberts, 448 U.S. at 66, 100 S. Ct. at
2539. The former testimony exception rests upon such a foundation. Causby, 706
S.W.2d at 631.
The admission of Nina Champion's former testimony did not abridge
the defendant's right of confrontation.
IV
The defendant challenges the trial court's denial of his motion to have
the jury view the crime scene, or alternatively, view a videotape of the crime scene.
Whether to allow a jury view of the crime scene and whether to admit a videotape
into evidence are both questions for the sound discretion of the trial court, and the
trial court's decisions in that regard will not be disturbed on appeal absent a clear
showing of abuse of that discretion. State v. Cauthern, 967 S.W.2d 726, 743 (Tenn.
1998) (videotape); Boyd v. State, 4 Tenn. Crim. App. 687, 707-08, 475 S.W.2d 213,
222 (1971) (jury view).
In his motion to allow the jury view, the defendant argued, "it's a
physical impossibility when it's dark at night to see [where the defendant allegedly
shot the victim] from where [Clement Harris, the eyewitness] says he was. It just
can't be done." It appears the defendant requested that the jury make a nighttime
trip to the crime scene. The trial court overruled the motion, finding, "I just don't
think it's proper to load up a jury and take them off down there. It's a different time
16
of the year. I don't know what has changed about it or it'd be too speculative."
During the course of the trial, the public defender's investigator testified about his
own observations at the scene, including lighting and distances. The investigator
was unable to identify individuals standing outside some parked cars while standing
at less of a distance than Harris had testified he was from the location of the
murder. The investigator sketched a diagram, which was admitted as evidence.
Photographs of the scene were admitted.
We fail to see that the trial court abused his discretion in overruling the
defendant's motion for a jury view. The defendant does not challenge the accuracy
of the photographs or the diagram which were admitted, and the defense
investigator's testimony was directly contrary to Harris' claim that he saw the
defendant commit the crime.13 Indeed, it is a rare occasion on which a jury view will
be allowed. State v. Barger, 874 S.W.2d 653, 655 (Tenn. Crim. App. 1994). We
believe the location of the crime was adequately described, and Harris' claim that
he saw the defendant kill the victim was a credibility determination for the jury's
resolution. Cf. State v. Deanna Stafford, No. 87-95-III (Tenn. Crim. App., Nashville,
May 19, 1988) (defendant not denied fair trial by court's denial of jury view where
crime scene was adequately described to the jury), perm. app. denied (Tenn. 1988).
The defendant's alternative claim is that the trial court should have
admitted a videotape of the crime scene. The defense investigator who made the
tape was questioned outside the jury's presence about the tape. He said he
recorded it at 9:30 to 9:45 p.m. on the Sunday night prior to trial.14 He admitted that
13
Harris also testified he heard the defendant speak and recognized his
voice.
14
The murder took place in the early morning hours of April 20, 1995. This
court judicially knows that the Sunday night preceding trial was August 4, 1996.
17
the amount of light recorded by a camera is less than the total amount of light seen
by the human eye. He could not say how much light reduction occurred with the
camera used to tape the scene. He also testified about the weather conditions on
the night he was at the scene, which were different than the conditions on the night
of the crime as established through other witnesses. The trial court viewed the
videotape, then ruled that "the tape can in no way approximate what the eye could
see" and that it would not be fair to allow the jury to see the tape.
Having considered these facts and viewed the proffered videotape, we
conclude the trial court did not abuse its discretion in excluding the tape from
evidence. The camera used recorded less light than would be seen by the human
eye. The tape was filmed under different conditions than those which existed when
the crime occurred. The poor quality of the videotape is such that it is apparent it
depicts a low-light situation differently than as seen by the human eye.
V
The defendant also alleged that the trial court erred by questioning of
defense counsel in the presence of the jury about the reason defense counsel kept
asking the same question of the state's witnesses. More specifically, the state's first
three witnesses were an investigator from the Haywood County Sheriff's
Department, an investigator from the Brownsville Police Department, and the
eyewitness Clement Harris. The first question asked of each of these three
witnesses on cross examination was whether he was going to testify about gunshot
residue. When the question was asked the third time (during cross-examination of
Harris), the following dialogue occurred:
THE COURT: Mr. Crider [defense counsel], why do you keep
asking that question? I assume you've got some reason for asking
that.
MR. CRIDER: Yes, sir. I just want to know when I find the
18
witness --
THE COURT: Do you really think this witness is going to testify
about gunshot residue?
MR. CRIDER: I'm going to question him about the firing of the
gun in the car.
THE COURT: All right. If you do, go ahead and ask the
question. If you don't, don't ask it.
MR. CRIDER: Yes, sir.
Whereupon, defense counsel undertook cross-examination of the witness on the
subject of drug use on the night of the murder.
In his brief, the defendant argues that this line of questioning was part
of his strategy to demonstrate that none of the state's witnesses would be able to
provide testimony about gunshot residue on the defendant or his vehicle. He claims
that the court's comments (1) questioned his strategies, if not his abilities, in front
of the jury and constituted a comment on the evidence contrary to article VI, section
9 of the Tennessee Constitution, and (2) abridged his right of confrontation because
it forced him to curtail cross-examination of state's witnesses.
Article VI, section 9 of the Tennessee Constitution declares that trial
judges "shall not charge juries with respect to matters of fact, but may state the
testimony and declare the law." We disagree, however, that the above-quoted
dialogue amounted to constitutionally impermissible judicial commentary on the
evidence. Rather, the trial court's questions and ruling were brief and to the point.
The trial courts of this state are afforded wide discretion in controlling the conduct
of counsel. See, e.g., State v. Leach, 684 S.W.2d 655, 659 (Tenn. Crim. App.
1984). We believe the trial court was acting within that discretion by inquiring of
counsel's motives in continuing to ask the question of each witness.
19
The defendant also claims the trial court's questions and statements
deprived him of his right of confrontation. The Sixth Amendment of the United
States Constitution, applicable to the states through the Fourteenth Amendment,
provides that an accused has the right to be confronted with the witnesses against
him. U.S. Const. amends. VI, XIV; Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct.
1065, 1068 (1965). The right of confrontation provides two protections -- the right
to face physically the state's witnesses and the right to cross-examine them. See,
e.g., State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992) (citing Pennsylvania
v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998 (1987)). We do not see how the
trial court's inquiries limited the defendant's cross-examination of the witness. The
court ruled that defense counsel could ask whether the witness was going to testify
about gunshot residue if defense counsel was going to pursue that line of
questioning, although if defense counsel did not intend to ask questions of the
witness in this vein, he should move on. Defense counsel said that he asked the
question because he wanted to question the witness "about the firing of the gun in
the car." Thus, the court's ruling would have allowed defense counsel to pursue this
line of questioning, yet defense counsel abandoned it and asked the witness about
his drug use.
We fail to see merit in this issue.
VI
The defendant also takes issue with the unusual procedure employed
by the trial court in placing one of the state's witnesses in custody to review her
previous statements after the witness testified she could not remember the events
that were the subject of her previous statements. The witness in question,
Katherine Blackwell, testified first as a state's witness. She essentially claimed total
memory loss of pertinent events as she had previously described in statements
20
given to the T.B.I. and a defense investigator. The court allowed the prosecution
to treat Blackwell as a hostile witness. After Blackwell completed her testimony,
the court had the jury removed from the courtroom, then sua sponte advised
Blackwell,
I'm going to let you go into the custody of the Sheriff and see if your
memory gets any better. For purposes of this record, I don't find the
fact that you say you don't remember to be credible. . . . And so, you
go with the Sheriff, and when you feel like that you can remember and
you can come back in here and testify truthfully before this jury, you
can let me know. Until then you can remain in the custody of the
Sheriff.
Thereafter, Special Agent Bryan Byrd testified for the state. During
the course of his investigation, he took two signed statements from Blackwell. He
read both of these statements to the jury. In them, Blackwell claimed that she saw
the defendant and the victim together around 1:00 on the morning of the murder at
the location where the murder later took place. Around 2:00 that morning, the
defendant and another man came to the house where Blackwell and Sheila Bernil
were living. The defendant was angry. Several hours later, Blackwell went to buy
crack cocaine from the defendant. He was driving a car like one she had previously
seen the victim driving. The defendant told her that the victim was dead.
After the state rested, the court allowed the state to reopen its proof,
and the court called Blackwell as its own witness. The court explained to the jury,
"I'm calling her as my own witness. Neither side will have to vouch for her
credibility, but I asked her to take her statements and go back and -- and try to
remember what happened and see if her memory improved any." He then
addressed the witness, "Now, what I want you to do is I want you to tell these ladies
and gentlemen in your own words what happened that night, and . . . I want you to
tell them the truth, whatever that is . . . ." Blackwell then proceeded to testify in
accord with her previous statements. She said her memory had improved in the
21
hours since her first appearance on the witness stand because she did not want to
go to jail. Blackwell also testified that she had been beaten by three unknown
assailants shortly after she talked to the T.B.I. She said she did not know why the
beating occurred, but she could think of no reason other than her involvement in this
case. She admitted, however, that she had not received any threats relative to this
case.
At the conclusion of Blackwell's testimony, the defense made a motion
to strike the testimony because the witness was coerced by her fear of incarceration
to testify in accord with her previous statements. The trial court overruled the
motion.
In Tennessee, a trial court has the discretion to call its own witnesses,
but that discretion must be exercised carefully and cautiously so that it does not
amount to a comment on the evidence. Montesi v. State, 220 Tenn. 354, 370, 417
S.W.2d 554, 561 (1967); see Tenn. Const. art. VI, § 9. The trial court should
exercise its discretion only where doing so will further the interests of justice.
Montesi, 220 Tenn. at 370, 417 S.W.2d at 561. The proper procedure in such a
case is for the trial court to examine the witness, then allow the parties to cross-
examine her. Montesi, 220 Tenn. at 370, 417 S.W.2d at 561.
The Rules of Evidence provide methods for addressing situations in
which a witness is uncooperative. As was done in this case, the court may, upon
request of the party who called the witness, declare the witness hostile, thereby
giving the examining party the ability to employ leading questions. Tenn. R. Evid.
611(c). In the event a witness claims memory loss, the witness's prior inconsistent
statements are admissible for impeachment purposes under Tennessee Rule of
Evidence 613(b). See, e.g., State v. Kendricks, 947 S.W.2d 875, 882 (Tenn. 1996)
22
(witness's prior statement about relevant events admissible as prior inconsistent
statement where witness at trial claimed to have no memory of events). Further, a
memorandum or other record about matters of which a witness once had knowledge
but is unable to recollect sufficiently to testify fully and accurately at trial may be
admitted if it meets certain qualifications. Tenn. R. Evid. 803(5).
Further, a trial court may admonish a witness suspected of
untruthfulness of the significance of lying under oath. State v. Schafer, 973 S.W.2d
269, 278 (Tenn. Crim. App. 1997). However, a trial court may not declare its belief
the witness is being untruthful and threaten the witness with prosecution for perjury
to such a degree that the witness changes his testimony to the detriment of the
defendant. Schafer, 973 S.W.2d at 278. When the trial court's actions exceed the
bounds of an appropriate warning, "the defendant's right to a fair trial is
compromised and the outcome of the trial brought into question." Schafer, 973
S.W.2d at 278.
In the present case, the trial court’s unusual procedure influenced the
witness's testimony to the defendant's detriment. The trial court told the witness,
"Until [you can testify truthfully] you can remain in the custody of the sheriff." Later,
during her second visit to the witness stand, the witness testified her memory had
improved in the last few hours "[b]ecause I didn't want to go to jail." Furthermore,
the witness's testimony once she abandoned her claim of memory loss was
probative of the defendant's guilt. Her testimony placed the defendant with the
victim around 1:00 a.m. on the night of the murder. About an hour later, the
defendant and another man came to the house where the witness was living and
argued with the witness's roommate about whether the men could come inside.
This evidence is significant because it is contrary to the defendant's statement to
the police the he was not in Brownsville on the night of the murder. Blackwell also
23
testified that she saw the defendant several hours later, and he told her about the
victim's death. This was prior to the discovery of the victim's body. Further, the
witness testified she had been assaulted after talking to the T.B.I. and offered the
possibility of a causal connection between the two events. Clearly, the trial court's
actions influenced testimony which was damaging to the defense. We are
constrained to find abuse of discretion in the actions of the trial court.
Moreover, we believe this error mandates reversal.15 See Tenn. R.
App. P. 36(b); Tenn. R. Crim. P. 52(b); Schafer, 973 S.W.2d at 278. First, the trial
court's actions resulted in serious prejudice to the defendant. W hen Blackwell
returned to the witness stand, her testimony was not merely duplicative of evidence
already before the jury via Special Agent Byrd.16 Rather, she made an additional
15
To the extent that the defendant failed to make a contemporaneous
objection to the trial court's having Blackwell held in custody and to her testimony
that she had been beaten up after talking to the T.B.I., we find that the error
affected the integrity of the trial to such a degree that the failure to object should
not operate as a waiver of the issue. See Tenn. R. Crim. P. 52(b) (plain error);
accord State v. Eaves, 959 S.W.2d 601, 604-05 (Tenn. Crim. App. 1997) (trial
court's remarks to witness in presence of jury which amounted to questioning of
witness's credibility formed basis for reversal even in absence of
contemporaneous objection).
16
We have mentioned above that T.B.I. Agent Byrd, a state witness, read
to the jury the written pretrial statements wherein Blackwell described her early-
morning encounters with the defendant. This account helped to establish the
defendant’s presence in Brownsville at the time of the murder. The evidentiary
rationale for admitting these statements was not clear, but the defendant has not
claimed that the use of the statements was error. Out of curiosity, we have
examined the admission into evidence of Blackwell’s extrajudicial statements.
The method of presenting this evidence--via a second state witness--
suggested that the state may have been trying to impeach Blackwell’s testimony
through the use of a prior inconsistent statement. See Tenn. R. Evid. 613.
However, if this was the strategy, the state did not explain it as such to the court.
Nor did the court instruct the jury that the evidence could be used only for
impeachment purposes. Therefore, the statements in fact came in as
substantive evidence to prove the truth of the matter asserted, that is, that the
defendant was in the locality in the early morning hours of April 20, 1995, and
that he knew of the victim’s death before the discovery of the body.
As such, we have reviewed our rules of evidence to determine whether
the statements are admissible under some exception to the hearsay rule. See
24
extremely damaging claim that she had been assaulted and that the assault might
be attributable to the defendant. Moreover, her initial reluctance to testify which was
overcome only by the prospect of incarceration was played out before the jury.
Unquestionably in these circumstances the testimony upon the witness’s second trip
to the stand suggest that she had been previously coerced not to testify against the
defendant. Second, the entire procedure was prejudicial to the judicial process.
Tenn. R. App. P. 36(b) (judgment shall be set aside if it "would result in prejudice
to the judicial process"); Tenn. R. App. P. 52(b) (plain error may be noticed "where
necessary to do substantial justice").
Tenn. R. Evid. 802, 803. The only exception which conceivably applies is the
exception for the use of a recorded recollection. See Tenn. R. Evid. 803(5);
State v. Basil Mathis, No. 01C01-9605-CC-00186, slip op. at 6 (Tenn. Crim.
App., Nashville, May 30, 1997), perm. app. denied (Tenn. 1998). Under rule
803(5), “[a] memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable the witness
to testify fully and accurately” is admissible as substantive evidence if the
memorandum can be “shown to have been made or adopted by the witness
when the matter was fresh in the witness’s memory and to reflect that knowledge
correctly.” If admitted, such a memorandum may be “read into evidence but may
not itself be received as an exhibit unless offered by an adverse party.” The
Advisory Commission Comments to rule 803(5) say, “The safeguard is the
requirement of adoption at the time when the witness could vouch for the
document’s correctness.” (Emphasis added.) There is some basis in the record
for applying the exception. In her testimony Blackwell admitted that she gave a
statement to the T.B.I. and that, at the time such a statement was given, she
would have told the truth. Blackwell testified that she did not remember many of
the events that were described in the pretrial statements. The officer’s testimony
established the statement was made or adopted by the witness at the time the
statements were put in writing, a time when the events were fresher in the
witness’s memory. On the other hand, the witness did not acknowledge at trial
that the written statements possessed by Byrd were her statements. Had the
issue been raised, we cannot be certain the admission of the statements as
substantive evidence would have been approved on appeal.
Nevertheless, we are not constrained in this case to consider the matter
further. We have concluded that the conviction should be reversed because of
the treatment and use of the witness Blackwell. Assuming that her pretrial
statements were properly before the jury as substantive evidence, the error
committed by incarcerating and then recalling her as a witness is still egregious
enough to warrant reversal and a new trial. Such an error would only be
exacerbated were we to find that the witness’s story should not have been
presented to the jury prior to her second appearance on the stand.
25
As a result, we must reverse the defendant's conviction and remand
for a new trial.
VII
Finally, the defendant advocates that the cumulative effect of the
alleged errors has prejudiced him and compromised the judicial process. Because
we have found that the defendant is entitled to a new trial, consideration of this
issue is not necessary.
The judgment of the trial court is reversed and the case is remanded
for a new trial consistent with this opinion.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_____________________________
JOE G. RILEY, JUDGE
_____________________________
ROBERT W. WEDEMEYER, SPECIAL JUDGE
26