        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  April 12, 2011 Session

          STATE OF TENNESSEE v. BRANDON M. CARTWRIGHT

     Appeal from the Circuit Court for Gibson County (Humboldt Law Court)
                     No. H-8615     Clayburn Peeples, Judge


                 No. W2010-01253-CCA-R3-CD - Filed June 10, 2011


A Humboldt Law Court jury convicted the defendant, Brandon M. Cartwright, of first degree
murder committed in the perpetration of a robbery, see T.C.A. § 39-13-202(a)(2)(2006), and
especially aggravated robbery, see id. §39-13-403. On appeal, the defendant argues that the
trial court erred by admitting hearsay evidence and that he was denied his right to a jury of
his peers because members of his race were underrepresented in the venire due to their
systematic exclusion. Discerning no infirmity in the convictions, we affirm the judgments
of the trial court.

             Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and R OBERT W. W EDEMEYER, J., joined.

Michael A. Carter, Milan, Tennessee, for the appellant, Brandon M. Cartwright.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Garry Brown, District Attorney General; and Larry Hardister, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              The defendant does not challenge the sufficiency of the evidence to support his
convictions on appeal. Therefore, we will only briefly outline the evidence presented by the
State to support the convictions.

             On August 31, 2007, the defendant, Keith Rose, and Nicholas Hart robbed and
killed the 71-year-old victim, Reggie Hicks, Jr., at the victim’s home in Humboldt,
Tennessee. The three men left the scene in the victim’s truck, only to abandon the truck later
when it ran out of gas. Three days later, the victim’s daughter discovered the victim’s body
in a pool of blood on the living room floor. The victim’s hands were tied behind his back,
and he had died from an apparent gunshot wound to the back of his head. Authorities found
the victim’s truck abandoned in a parking lot the same day.

               Later the same day, the defendant surrendered to the police. In a statement to
the police, the defendant claimed that Mr. Rose planned the robbery and shot the victim. He
recounted details concerning the offenses. Upon completion of the statement, the entire
statement was read aloud to the defendant who then initialed each paragraph and signed the
statement. The defendant also added a hand-written expression of remorse to the statement.

             Kacy Rose, Keith Rose’s brother, testified that when he learned that the
defendant and his brother were wanted for questioning by the police, he asked them what had
happened. He stated that the defendant began to cry and admitted that he had shot the victim.

             An autopsy of the victim’s body confirmed that he died of a single gunshot
wound to the head. Although the bullet was recovered from the body, no gun was ever
found.

               Based upon this evidence, the jury convicted the defendant of first degree
murder committed in the perpetration of a robbery and especially aggravated robbery.1 In
a sentencing trial, the jury found evidence to support the imposition of a sentence of life
without the possibility of parole. The trial court imposed a consecutive sentence of 25 years
for the especially aggravated robbery conviction. Timely post-trial pleadings followed. This
case is properly before the court.

               The defendant argues that his statement made to investigators was inadmissible
hearsay because the written statement was a paraphrased account of his interview and,
therefore, “not really his statement at all.” Although he initialed each paragraph, signed the
statement, and added his own hand-written expression of remorse to the document, the
defendant claims that “there is insufficient evidence to prove that [he] undertook any . . .
manifestation” to adopt the statement as his own. See Tenn. R. Evid. 803(1.2)(B) (stating
as an exception to the rule against hearsay that a statement by a party-opponent is admissible
if the party “has manifested an adoption” of the statement). The State contends that the trial
court properly admitted the defendant’s statement.

              At a pretrial hearing consisting only of argument by defense counsel, counsel
claimed that the defendant’s written statement to Tennessee Bureau of Investigation (TBI)


       1
           The jury acquitted the defendant, in count one, of premeditated first degree murder.
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agents was not his own statement but rather the statement of the agent taking the notes. He
claimed that the preliminary hearing testimony revealed that the agent used his own words,
rather than those of the defendant, to formulate the statement. Counsel further claimed that
no tape recording was made of the interrogation. The trial court expressed dissatisfaction with
the methods employed by the TBI in taking suspects’ statements, but it ruled the statement
admissible, stating that “legally [the TBI] has a right to do it” that way. The statement was
later admitted at trial through the testimony of the investigating agent.

                 “‘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). “Hearsay is not admissible except as provided by these rules or otherwise by
law.” Id. 802. The Tennessee Rules of Evidence 803 and 804 provide exceptions to the
general rule of inadmissibility of hearsay.

                Initially, we observe that the appellate courts of this state have at times applied
different standards of review to the trial court’s determination whether evidence should be
excluded as inadmissible hearsay. Our supreme court has stated without analysis that hearsay
determinations fall within a general rule that rulings on evidence are entrusted to the sound
discretion of the trial court. See State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010); see
also, e.g., State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008); State v. Brooks, 249 S.W.3d
323, 328 (Tenn. 2008); State v. Thomas, 158 S.W.3d 361, 400 (Tenn. 2005); State v. Stout,
46 S.W.3d 689, 697 (Tenn. 2001); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Of
course, a lower court’s discretionary determination is typically reviewed for an abuse of
discretion standard. See Franklin, 308 S.W.3d at 809. Reliance upon the general rule
regarding review of trial court evidentiary rulings is somewhat problematic because some of
the notable cases relied upon as precedent did not involve the review of hearsay issues. See,
e.g., State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997) (applying the abuse of discretion
standard to relevancy issues); State v. Campbell, 904 S.W.2d 608, 616 (Tenn. Crim. App.
1995) (applying the abuse of discretion standard to the review of the admissibility of expert
testimony); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing State v. Allen, 692 S.W.2d
651 (Tenn. Crim. App. 1985), and applying the abuse of discretion standard to a relevancy
determination of the admissibility of a photograph); State v. Baker, 785 S.W.2d 132, 134
(Tenn. Crim. App. 1989) (applying the abuse of discretion standard to the review of the use
of impeachment evidence); Allen, 692 S.W.2d at 653-54 (citing State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978), and applying the abuse of discretion standard to the review of the
admissibility of photographs and otherwise not referring to the standard in reviewing a
hearsay issue); Banks, 564 S.W.2d at 949 (applying the abuse of discretion standard to the
review of the admissibility of photographs). In Franklin, the supreme court adverted to the
general rule of abuse of discretion review of evidentiary questions before observing that
“[w]hether the admission of hearsay statements violated a defendant’s confrontation rights

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is, however, a pure question of law.” See Franklin, 308 S.W.3d at 809 (citing Lilly v.
Virginia, 527 U.S. 116, 125 (1999)); State v. Lewis, 235 S.W.3d 136, 141-42 (Tenn. 2007)
(utilizing the same analytical framework the court applied in State v. Maclin, 183 S.W.3d 335
(Tenn. 2006)).

              As we noted in State v. Gilley, however, panels of the intermediate appellate
courts have applied a de novo standard to the review of hearsay issues. See State v. Gilley,
297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (citing State v. Schiefelbein, 230 S.W.3d 88,
128 (Tenn. Crim. App. 2007) (“[A] trial court’s ruling on whether a statement is hearsay is
a question of law, and the appellate court reviews the issue de novo without a presumption
of correctness.”); Russell v. Crutchfield, 988 S.W.2d 168, 170 (Tenn. Ct. App. 1998); State
v. Alonzo Ladon Mason, No. M2005-01929-CCA-R3-CD (Tenn. Crim. App., Nashville, Apr.
20, 2007); State v. Frank Lee Tate, No. W2004-01041-CCA-R3-CD (Tenn. Crim. App.,
Jackson, Feb. 23, 2007), perm. app. denied (Tenn. 2007); Keisling v. Keisling, 196 S.W.3d
703, 721 (Tenn. Ct. App. 2005) (“Whether a certain statement is hearsay is a question of law,
subject to de novo review.”), perm. app. denied (Tenn. 2006); Shelia Rae Gibbs v. Robin
Media Group, No. M1999-00820-COA-R3-CV (Tenn. Ct. App., Nashville, Aug. 25, 2000).
Ultimately, in Gilley, we concluded that because “[n]o factual issue attends” the trial court’s
determination whether a statement is hearsay, “it necessarily is a question of law.” Gilley, 297
S.W.3d at 760 (citing Schiefelbein, 230 S.W.3d at 128; Keisling, 196 S.W.3d at 721). We also
determined that a hearsay statement offered to prove the truth of the matter asserted “is, purely
and simply, inadmissible” and the trial court “has no discretion to hold otherwise.” Gilley,
297 S.W.3d at 760 (citing Tenn. R. Evid. 802). Similarly, we concluded that the although the
application of the various exceptions to the hearsay rule “may initially depend upon factual
determinations,” requiring appellate deference to the trial court’s factual findings, such
deference “does not equate to reviewing its application of the law to the facts for an abuse of
discretion.” Gilley, 297 S.W.3d at 760-61. Based upon these conclusions, we held that
because a “trial court . . . has no discretion to exclude hearsay exception evidence that is
otherwise admissible under the rules of evidence,” the appropriate standard of review for
hearsay issues is de novo. Id. at 761. Despite the recent supreme court cases utilizing the
abuse of discretion standard, we conclude that the trial court’s determination whether a
statement should be excluded as hearsay should be reviewed de novo.

              In the present case, the State contends that the defendant’s statement was
admissible as an admission by a party-opponent. See Tenn. R. Evid. 803(1.2)(B). To clear
the way for admission of a hearsay statement under this exception, the declarant must have
adopted the statement or indicated a belief in its truth. In this case, the defendant gave a
statement of his version of the events to a TBI agent, who took paraphrased notes of the
defendant’s account. The TBI agent then read the statement to the defendant, who
acknowledged the statement by initialing each paragraph and signing each page. The

                                               -4-
defendant also added his expression of remorse at the conclusion of the document in his own
handwriting and signed the document. The fact that the TBI agent paraphrased the
defendant’s account or did not take verbatim notes does not undermine the obvious conclusion
that the defendant adopted the statement as his own. As such, the statement was admissible.
See Lewis, 235 S.W.3d at 145 (Tenn. 2007) (defendant’s statement may be admissible as an
admission by a party-opponent). Moreover, the defendant’s statement would have been
admissible as a statement against interest, see Tenn. R. Evid. 804(3), and was otherwise
admissible at trial. For these reasons, we conclude that the trial court properly admitted the
statement at trial.

                The defendant also argues on appeal that he was denied a jury of his peers
because of an alleged systematic exclusion of African-American jurors from the venire.
Following jury selection, the defendant voiced concerns that his jury pool “did not seem to
be a fair cross[-]section [of the community]. . . [because it was] predominantly white” but
admitted that he did not have any statistical information to substantiate his claim. The trial
court overruled the defendant’s motion to strike the venire at that time. At the motion for new
trial hearing, the defendant presented statistical evidence through Amanda Elaine Brown, the
Humboldt Law Court Clerk, to show that African Americans were underrepresented in the
both the venire and the jury pool. The trial court ruled that a disparity did exist between the
population of the jurisdiction and the actual number of African Americans called to the venire,
but the court also held that the defendant failed to prove that the underrepresentation resulted
from a systematic exclusion of African Americans from the venire.

              A criminal defendant has a constitutional right to a jury drawn from a venire that
represents a fair cross-section of the community. “Selection of a petit jury from a
representative cross-section of the community is an essential component of the Sixth
Amendment right to a jury trial.” State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (citing
Taylor v. Louisiana, 419 U.S. 522 (1975)). Moreover, although a defendant has no right
under the Equal Protection Clause to a “‘petit jury composed in whole or in part of persons
of [the defendant’s] own race,’ . . . he or she does have the right to be tried by a jury whose
members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U.S. 400, 404
(1991) (quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)). In this case, the
defendant points to the fact that although African Americans comprise 40 percent of the
population, only 25 percent of the jury pool was African American in his case. He has failed,
however, to establish discriminatory selection of the jurors.


               Tennessee applies the three-pronged test set forth in Duren v. Missouri, 439
U.S. 357, 364 (1979), for determining whether a jury was properly selected from a fair cross-
section of the community pursuant to the Sixth and Fourteenth Amendments. State v. Buck,


                                              -5-
670 S.W.2d 600, 610 (Tenn. 1984). Accordingly, to establish a prima facie violation of the
fair cross-section requirement, the defendant must show:


              (1) that the group alleged to be excluded is a “distinctive” group
              in the community;

              (2) that the representation of this group in venires from which
              juries are selected is not fair and reasonable in relation to the
              number of such persons in the community; and

              (3) that this under representation is due to systematic exclusion
              of the group in the jury-selection process.

Duren, 439 U.S. at 364.


              In the present case, the evidence showed that there were 18 African Americans
in the 66 member petit jury pool. Statistics concerning the 287 member venire also revealed
that 40 percent of the venire was non-white, with that category being further classified as 28
percent African-American, .1 percent Hispanic, and 12 percent unknown. Although the trial
court commented that it could not assume the entire 12 percent of unknown participants were
African-American, the record did reveal that several persons listed as unknown were known
to be African-American. Accordingly, the record reveals a slight disparity between the size
of the cognizable group in the community and its representation in the venire and the jury
pool.


               Even assuming that the underrepresentation prong is thereby established,
however, the defendant has not shown that it was the result of systematic exclusion of African
Americans from the jury pool. Names were selected by jury commissioners from a database
created from another database of randomly selected names registered at the Tennessee
Department of Safety and Voters Registration polls. Race and other vital statistics were not
requested or recorded in the selection process, and there was no evidence to suggest that the
commissioners were otherwise made aware of the race of potential jurors or that they thereby
excluded them as members of the venire. In overruling the defendant’s motion for new trial
allegation, the trial court noted that the disparity in representation was likely attributable to
socioeconomic factors and not to a design to exclude non-white citizens from the venire.
Accordingly, the defendant has failed to establish that his right to be tried by a fair cross-
section of the community was violated.


                                               -6-
                          Conclusion


Having discerned no error, we affirm the judgments of the trial court.



                                    _________________________________
                                    JAMES CURWOOD WITT, JR., JUDGE




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