First-degree murder conviction reversed after trial court refused to admit co-defendant’s statements against interest

In an appellate win for Sparta attorney Michael J. Rocco and Spencer attorney Matthew S. Bailey, the Tennessee Court of Criminal Appeals reversed a first-degree murder conviction in White County, Tennessee.  For my readers in the Upper Cumberland, you may remember this story as the Dollar General Murder.

The case involved two co-defendants who killed a woman at the Dollar General Store in northern White County and the defendant who allegedly set up and encouraged the murder.  At trial, the State showed that the defendant’s cell phone sent text messages to the victim that lured her to the Dollar General Store.  The defendant’s cell phone also sent text messages to one of the co-defendants encouraging the murder.  Seems pretty cut and dry, right?  If the defendant set up and encouraged the murder, why is the court of criminal appeals reversing the case?

Here’s why.  The co-defendant who received messages from the defendant’s phone told police that she had used the defendant’s phone to set up the deal.  Not only did she admit to having the phone, the co-defendant even corrected police on a specific detail that the defendant allegedly texted to the victim.  The detective asked the co-defendant, “[W]as anything said . . . in the text messages like I’m sending my girl,” to which the co-defendant responded, “[M]y lady.”  The actual text message from the defendant’s phone to the victim’s phone said “my lady.”  Furthermore, the other co-defendant and another witness saw the co-defendant with two phones the night of the murder.

At a motion in limine hearing, the trial court excluded the co-defendant’s statements as hearsay, finding that the statement against interest exception did not apply.  The trial court reasoned that a full confession was needed for a statement against interest.

On appeal, however, the appellate court noted that the statement against interest exception does not require a full confession.  See Tennessee Rule of Evidence 804(b).  It only requires an admission.  Here, the codefendant made five statements that were against her interest, and thus, should have been admitted.  Specifically, she (1) admitted that she used the defendant’s phone to set up the deal, (2) stated that she had the defendant’s phone, (3) claimed she pretended to be the defendant and that the defendant did not send her, (4) knew the specific content of the text messages sent from the defendant’s phone to the victim’s phone, and (5) claimed the defendant had no involvement on what transpired the night of the murder.  The court of criminal appeals analyzed each of these statements and determined that, while they were not full confessions, they were against the co-defendant’s interest because they implicated her in the murder.  Accordingly, they should have been admitted into evidence for the jury to consider.

Having determined that the trial court erred by not allowing the jury to hear the co-defendant’s statements that she had the defendant’s phone on the night in question, the appellate court then turned to whether the error was harmless or prejudicial.  “Improperly admitted evidence is reviewed under a non-constitutional harmless error analysis.”  To prove that a non-constitutional error is prejudicial, the defendant must show that the error “more probably than not affected the judgment or would result in prejudice to the judicial process.”  State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (quoting Tenn. R. App. P. 36(b)).  In analyzing whether failing to admit the statements affected the judgment, the court noted that the defendant repeatedly claimed that she was not in possession of her phone on the night in question.  Furthermore, the co-defendant stated she had the defendant’s phone and that she pretended to be the defendant to set up the meeting with the victim.  Moreover, the other co-defendant and another witness testified that they both saw the co-defendant with two phones the night of the murder.  Finally, the Tennessee Court of Criminal Appeals noted that there was no physical evidence linking the defendant to the victim’s murder.  In other words, it all came down to who had the defendant’s phone when the victim was killed.  Given the entire case hinged on that question, the erroneous exclusion of the co-defendant’s statements more probably than not affected the jury’s outcome and resulted in prejudice to the judicial process.  Reversed.

State v. Young, No. M2016-01149-CCA-R3-CD (Dec. 7, 2017)

Improperly admitted statements lead to new trial

The Tennessee Court of Criminal Appeals reversed a Davidson County child abuse conviction because (1) Statements against the defendant were improperly admitted as excited utterances and (2) The error was not harmless.

An excited utterance is an exception to the hearsay rule that excludes out of court statements offered to prove the truth of the matter asserted.  Tenn. R. Evid. 803(2).  The excited utterance exception applies when (1) There is a startling event or condition that causes the stress of excitement; (2) The statement relates to the startling event or condition; and (3) The statement was made while the declarant was under the stress of excitement.  In determining whether the statement was made while the declarant was under the stress of excitement, a court may consider the interval between the event and the statement; the nature and seriousness of the events; the appearance, behavior, outlook, and circumstances of the declarant; and whether the statement is in response to an inquiry or whether it is self-serving.

The erroneous admission of evidence is subject to harmless error analysis.  The test for harmless error analysis is found in Tennessee Rule of Appellate Procedure 36(b), which states, “A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”

In this case, the witnesses testified that the declarant “wasn’t upset” and “calm [though] scared.”  Moreover, his disclosure was “hesitant,” and it came after ten minutes of questioning.  Given the above, the court of criminal appeals concluded that the victim was not under the stress or excitement at the time he made the statements.  In particular, the court noted that the statements lacked “spontaneity.”

Since the admission of the statements was error, the court of criminal appeals then considered whether the error was harmless or reversible.  The court noted that the defendant had accounted for all of the child’s injuries with the statement that the child had fallen from a swing.  Also, the victim testified at trial that he had fallen from a broken swing.  While there was some evidence to support the conviction, the only direct evidence was the improperly admitted statements.  Therefore, the court reversed the conviction and remanded for a new trial.

State v. Bishop, M2015-00314-CCA-R3-CD (Tenn. Crim. App. Dec. 16, 2016)