         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 6, 2007 Session

                STATE OF TENNESSEE v. TOMMY BROWN, JR.

                   Direct Appeal from the Circuit Court for Obion County
                         No. C06-202 William B. Acree, Jr., Judge


                   No. W2006-02529-CCA-R3-CD - Filed January 11, 2008


The defendant, Tommy Brown, Jr., was indicted on one count of aggravated rape with a weapon, a
Class A felony, and one count of especially aggravated kidnapping, also a Class A felony. The
alleged victim in the case failed to appear on two separate dates for trial. The state was unable to
proceed and the trial court dismissed the case. On appeal, the state argues that the trial court erred
by failing to declare the witness unavailable and admitting the victim’s prior preliminary hearing
testimony at trial. Upon review of the record and the parties’ briefs, we affirm the judgment of the
trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and J. CURWOOD
WITT , JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon and Herd Critchlow, Assistant
District Attorneys General, for the appellant, State of Tennessee.

Joseph P. Atnip, District Public Defender, and Colin Johnson and William Randolph, Assistant
Public Defenders, Dresden, Tennessee, for the appellee, Tommy Brown, Jr.

                                             OPINION

                                       I. BACKGROUND

        The alleged victim, David Clark, testified at a preliminary hearing that he was attacked at
knife-point and raped by the defendant on May 7, 2006. Clark stated that at 3:00 a.m. on the
morning of the attack, he was waiting on his girlfriend to return to their apartment. He was outside
the apartment smoking a cigarette when he saw the defendant across the parking lot in a red car.
Clark recounted that he knew the defendant as an acquaintance through a mutual friend for
approximately a year prior to the attack. The defendant came over approximately fifteen minutes
later and the two sat outside on the porch and talked.
        Clark testified that the defendant asked him if he would go with him so that the defendant
could get him a birthday present. Clark refused the defendant’s repeated requests to go with him.
Eventually, Clark went inside the apartment and laid down. A short time later, at around 4:00 a.m.,
Clark allowed the defendant into the apartment to use the bathroom and stood outside the bathroom
in the hallway while the defendant was inside.

        Clark testified that the defendant told him to “come here” and told him he was done using
the bathroom. Clark walked into the bathroom and the defendant shut and locked the door behind
him. The defendant pulled a knife from his waistband and told Clark to sit down on the toilet and
pull down his pants. The defendant started “rubbing on [him] and stuff” while he held the knife to
Clark’s throat and told Clark that if he did not do what he said, he would hurt him. The defendant
performed oral sex on Clark, which Clark resisted, telling the defendant, “No, no. Get off me.”

        Clark testified that after the defendant stopped, he forced Clark to go out with him. The
defendant took the knife he was holding at Clark’s throat and put it under his shirt. The two men
walked outside the apartment and toward the defendant’s car. According to Clark, the defendant
had his left arm around Clark’s left arm and he had his right hand with the knife up under Clark’s
shirt. The defendant told Clark, “You’re going to get in on my side, and I’m going to sit on top of
you where you can’t get away from me.”

        Clark testified that when the defendant took his hand off of his left arm to open the car door,
Clark spun around, hit him and pushed him to the ground. Clark took off running and spotted a
woman pulling into the apartment complex. He flagged her down and told her the defendant was
trying to hurt him. She told him she would follow him back to his apartment, and Clark called the
police. When he got back inside the apartment, he looked in the mirror and saw that he had been cut
on the left side by his ribs. The cut was not deep but sliced the skin.

        After a brief cross-examination, the defendant’s case was bound over to the grand jury. The
grand jury returned indictments on charges of aggravated rape and aggravated kidnapping against
the defendant. The defendant waived his right to a jury trial and a bench trial date was set for August
29, 2006. On August 1, 2006, the state informed the court that it had issued a subpoena to compel
Clark’s attendance at trial. Clark did not appear for trial on August 29. The state informed the court
that a subpoena was served on the defendant, but two weeks prior to trial Clark moved to the state
of Missouri to live with his mother. The state requested a continuance which the court granted until
September 8, 2006.

       The record reflects that on September 8, the court held a hearing to address David Clark’s
absence at trial on August 29. Prosecutors informed the court that they had spoken with Clark’s
mother who told them that her son was enrolled in school in Missouri and was undergoing
counseling. The prosecutors indicated that Clark’s mother requested that trial be postponed until
November so that Clark could continue counseling. Prosecutors also indicated that Clark’s mother
assured them that he wished to prosecute and she promised that he would appear for trial at that time.


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The defendant requested a dismissal from the court, but it was denied. The trial court set the matter
for trial on October 30, 2006, but stated on the record that if Clark did not appear for trial, the case
would be dismissed. After the court informed prosecutors that it would dismiss the case if the
witness failed to appear, the prosecution responded by saying, “If it please the Court, we will also
go through the Interstate Act to make sure that he is properly served in the state of Missouri. But
we’ll - we will dismiss if he’s not here on October 30.”

        The record also reflects that the case was reset for trial on October 30, 2006, and David Clark
failed to appear for trial at that setting. Again, the defendant moved for dismissal based on Clark’s
failure to appear for trial. Prosecutors asked to place the original subpoena of the witness into
evidence as an exhibit, and attempted to call the victim-witness coordinator to the stand to testify
regarding attempts made by the state to secure the witness for trial. The court intervened before the
victim-witness coordinator could testify and asked the state what it planned to do in light of the
witness’s continued absence. Prosecutors argued that pursuant to Rule 804(a)(5) of the Tennessee
Rules of Evidence, they were entitled to have Clark declared unavailable for failure to secure the
declarant’s attendance by process. After having the court declare Clark unavailable pursuant to the
rule, prosecutors further argued that under Rule 804(b)(1), they would then be permitted to offer
Clark’s prior testimony at the preliminary hearing into evidence at trial.

        The defendant argued that prosecutors previously informed the court at the September 8
hearing that they would dismiss the case if the witness failed to appear at the October 30 trial setting,
and therefore the defendant was entitled to a dismissal of the case. The court refused to declare
Clark unavailable, and likewise refused to permit his prior testimony into evidence. In ruling on the
prosecution’s motion, the court stated, “I’m not prepared to accept the testimony of someone who
doesn’t bother to show up on two occasions, and who testified in some other court, and me not be
able to see the witness, the victim, and judge his demeanor . . . and make some determination as to
whether or not the victim is telling the truth.” Based on prosecutors’ inability to proceed, the trial
court granted the defendant’s motion for dismissal.

                                           II. ANALYSIS

        The state argues on appeal that the trial court erred by holding that the victim was not
unavailable pursuant to the Tennessee Rules of Evidence, and that the victim’s prior testimony at
the preliminary hearing was therefore not admissible at trial.

       Tennessee Rule of Evidence 804 allows for hearsay testimony of a declarant who is
unavailable at trial 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 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.


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Tenn. R. Evid. 804(b)(1). Before such testimony will be admitted, however, the proponent must
establish that the witness “[i]s absent from the hearing and the proponent of a 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 it must be shown that the declarant is truly unavailable after good faith efforts
to obtain his presence. See Barber v. Page, 390 U.S. 719, 724-725 (1968); see also State v. Arnold,
719 S.W.2d 543, 548 (Tenn. Crim. App. 1986) (citations omitted). The United States Supreme
Court, stated that “good faith” is defined as “[t]he lengths to which the prosecution must go to
produce a witness . . . [and] is a question of reasonableness.” Ohio v. Roberts, 448 U.S.56, 74 (1980)
overruled on other grounds by Crawford v. Washington, 541 U.S. 36 (2004). “The ultimate question
is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and
present that witness. As with other evidentiary proponents, the prosecution bears the burden of
establishing this predicate.” Id. at 74-75. We will uphold the trial court’s determination that a
witness is available or unavailable absent an abuse of discretion. See Hicks v. State, 490 S.W.2d
174, 179 (Tenn. Crim. App. 1972).

         Furthermore, the party issuing the subpoena has the duty to supervise and ensure that
effective service of process is completed. “A party desiring the issuance of process to secure the
attendance of a witness has the continuing duty to follow up and supervise the service of the
subpoena.” State v. Jefferson, 529 S.W.2d 674, 688 (Tenn. 1975), overruled on other grounds by
State v. Mitchell, 593 S.W.2d 280 (Tenn. 1980); see also Barber, 390 U.S. at 724. “The prosecuting
attorney’s statement to the Court concerning the efforts of the [s]tate’s investigator to locate the
witness cannot be considered as evidence of proof on the issue of the State’s good faith effort.” State
v. Armes, 607 S.W.2d 234, 237 (Tenn. 1980). Proof of use of process to procure the attendance of
an unavailable witness is required under the Rules of Evidence. Tenn. R. Evid. 804(a)(5). In order
to secure the attendance of an out-of-state witness for a trial or hearing, Tennessee enacted the
Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal
Proceedings (Uniform Law). Tenn. Code Ann. §§ 40-17-201 et seq. These statutes include
provisions for compulsory attendance of out-of-state witnesses at criminal proceedings in Tennessee
courts. Id.

        Upon review of the record, it is apparent that the trial court found that the prosecution failed
to make a good faith effort to secure the witness’s presence at trial. Barber, 390 U.S. at 724-725;
see also Arnold, 719 S.W.2d at 548. The record reflects that prosecutors informed the court that they
had initially subpoenaed David Clark within the state prior to trial. It appears that Clark left the state
despite his awareness that his testimony was required at trial. Subsequently, the prosecutor located
him in a neighboring state. At the September 8 hearing, the prosecution informed the court that it
would “go through the Interstate Act to make sure that he is properly served in the state of Missouri.”
Thereafter, prosecutors failed to direct a subpoena to the witness through the Uniform Law and
instead relied on the verbal assurance of Clark’s mother that he would attend the trial. See Tenn.
Code Ann. §§ 40-17-201 et seq.




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        The record also reflects that prosecutors knew Clark’s whereabouts, spoke with his mother,
and relied upon assurances made by her that he would appear at trial. In order to have a witness
declared unavailable, the state had a duty to show proof of process and demonstrate to the court that
it was unable to procure the attendance of an unavailable witness under the Rules of Evidence.
Tenn. R. Evid. 804(a)(5). Because the prosecution knew where Clark was located and could
communicate with him, albeit indirectly, we conclude that the trial court did not abuse its discretion
in holding that Clark was not truly unavailable pursuant to Rule 804(a)(5). Id. Furthermore, the
prosecution concedes that it did not issue an out-of-state subpoena to Clark in Missouri. Prosecutors
had a duty to issue that subpoena after assuring the court that it would do so and had a duty to ensure
that it was properly served and executed. Jefferson, 529 S.W.2d at 688. The prosecution’s
assurances to the court are insufficient, and it may not rely upon statements to the court as evidence
of proof of their good faith effort. Armes, 607 S.W.2d at 237; see also State v. Hamilton, No.
M2001-02748-CCA-R3-CD, 2002 WL 31730877 at *3 (Tenn. Crim. App., at Nashville, Dec. 5,
2002), perm. app. denied (Mar. 10, 2003).

        Accordingly, the trial court did not abuse its discretion by finding that the state failed to make
a good faith effort to secure David Clark’s attendance at trial. See Roberts, 448 U.S. at 74-75; see
also Hicks 490 S.W.2d at 179. Because the trial court did not err in holding that Clark could not be
declared unavailable, it likewise did not err in denying the admission of his prior testimony at the
preliminary hearing at trial, or in granting the defendant’s motion for dismissal. Therefore, the state
is without relief.

                                           CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.




                                                         ___________________________________
                                                         J.C. McLIN, JUDGE




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