         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      July 24, 2007 Session


                STATE OF TENNESSEE v. JEANIE MARIE SEALS


                     Appeal from the Criminal Court for Hamblen County
                       No. 05CR035 James Edward Beckner, Judge



                     No. E2006-01878-CCA-R3-CD - Filed January 8, 2008



D. KELLY THOMAS, JR., J., concurring.

         I concur in the results reached by the majority as I would also remand this case for a new
trial. I write separately to note the manner in which I believe that the proposed testimony of nurse
Teresa Hudgens—namely, that the defendant contacted Hudgens via telephone and told Hudgens that
the victim threatened to kill the defendant—was admissible.

         As noted by the majority, evidence that would otherwise be inadmissible hearsay may be
admitted in certain circumstances if the evidence is necessary for the defendant to present a defense.
State v. Flood, 219 S.W.3d 307, 316-17 (Tenn. 2007). The three Flood factors were all met here.
Hudgens’ proposed testimony and the note Hudgens made when the defendant contacted her were
critical to the defense. The prosecution challenged the defendant’s credibility during cross-
examination. The prosecutor told the defendant, “It’s very important that you be believed,” and
Hudgens’ testimony would have aided the jury in determining whether the defendant was credible.
Hudgens’ testimony did bear sufficient indicia of reliability in that the nurse kept a written note made
contemporaneously to the defendant’s statement, and the defendant was willing to introduce that note
into evidence. Finally, the interest served by excluding the nurse’s testimony did not justify
exclusion. The Rules of Evidence would have permitted the nurse’s testimony to be admitted as a
prior consistent statement had the testimony been presented after the defendant’s credibility was
attacked. See State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993). In this case, the
defense counsel may well have been dissuaded from recalling Hudgens, who testified prior to the
defendant, after the defendant’s credibility had been attacked, in light of the trial court’s statement
to defense counsel that “you know, as a lawyer, or you should know, what you’re able to present and
what you can’t present, and the laws of evidence are clear and well defined.”

        In light of these reasons, I would have concluded that Hudgens’ testimony was admissible
had it been properly presented. Therefore, I join in the majority’s conclusion remanding this case
to the Criminal Court for Hamblen County for a new trial.




                                                            _______________________________
                                                            D. KELLY THOMAS, JR., JUDGE




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