         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   November 2, 2004 Session

                    STATE OF TENNESSEE v. LARRIE MACLIN

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 03-00140    Joseph B. Dailey, Judge



                   No. W2003-03123-CCA-R3-CD - Filed February 9, 2005


A Shelby County jury found the Defendant, Larrie Maclin, guilty of reckless aggravated assault and
of being a felon in the possession of a handgun. The trial court sentenced the Defendant to four
years for the reckless aggravated assault conviction and two years for the felon in possession of a
handgun conviction, to be served concurrently. On appeal, the Defendant contends that: (1) the trial
court erred by denying the Defendant’s motion to suppress the weapon found in the Defendant’s
vehicle; (2) the trial court erred by failing to sever the trials for the aggravated assault offense from
the felon in possession of a handgun offense; (3) the State did not fully comply with the Defendant’s
request for discovery; (4) the admission of an unavailable witness’ statements violated the
Defendant’s right to confront all witnesses; (5) the trial court erred by finding that a witness’
statements were excited utterances; (6) the trial court erred by admitting evidence showing that the
victim had subsequently died; (7) the State violated an order of the trial court by questioning the
Defendant about the victim’s death; (8) the trial court erred by allowing the State to ask the
Defendant if he was married at the time he was sexually involved with the victim; (9) the trial court
erred by not allowing the Defendant to impeach a witness’ credibility with a prior conviction
involving dishonesty; and (10) the trial court gave improper jury instructions on reckless aggravated
assault. After thoroughly reviewing the record and the applicable authorities, we affirm the
Defendant’s conviction and sentence for the felon in possession of a handgun conviction. We
conclude that the trial court improperly instructed the jury on reckless aggravated assault. Further,
having concluded that this instructional error was not harmless beyond a reasonable doubt, we
reverse the Defendant’s conviction for reckless aggravated assault and remand the case for a new
trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part;
                            Reversed in Part and Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN , JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the Appellant, Larrie Maclin.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Williams L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney
General, for the Appellee, State of Tennessee.



                                              OPINION

                                               I. Facts

        In January 2003, the Shelby County Grand Jury indicted the Defendant for aggravated assault
and for being a felon in the possession of a handgun. A Shelby County Jury convicted the Defendant
of both of these charges. The trial court sentenced the Defendant to four years for the reckless
aggravated assault conviction and two years for the felon in possession of a handgun conviction, to
be served concurrently. The following evidence was presented at the Defendant’s trial and
sentencing hearing.

                                               A. Trial

        The parties stipulated that the Arthur May Newby (“the victim”) “died of causes unrelated
to the [D]efendant or the facts of this case and therefore is unavailable as a witness for this trial.”
The parties then stipulated that at the time of the alleged handgun offense, the Defendant had been
convicted of a felony in 1980.

         Ronald Weddle, an officer with the Memphis Police Department, testified that, on August
28, 2002, he received a 911 hangup call from Arthur May Newby’s (“the victim”) address sometime
in the middle of the afternoon. He said that when he arrived at the address he and his partner, Officer
Gaylor, knocked on the front door. He testified that a man that he identified as the Defendant and
a woman that he identified as the victim opened the door. Officer Weddle testified that, when he
arrived at the location, the victim was “very upset, visibly - crying,” and the Defendant was calm.
He said that the victim explained that she called 911 because she got into an argument with the
Defendant, her boyfriend of nine years, when he was driving her home from work. The officer
testified that the victim told him that the Defendant “pulled a gun” on her, inside the car, and the
Defendant told her “[i]f you don’t shut up, I’m going to blow your mother-f***ing head off.” He
further testified that during his conversation with the victim he noticed that she had a cut on her lip,
and her face was swollen.

         Officer Weddle testified that the victim told him that she believed that the gun that the
Defendant pulled on her was located inside the Defendant’s truck. He said that the victim explained
that the gun was under a blue cloth somewhere in the truck, and she told the officer that she observed
the Defendant putting a cloth over the gun and bending over as though he was going to place it under
the seat. He testified that, after the victim told him that the gun was under the seat, he placed the
Defendant under arrest and began to work on the paperwork while his partner went to the vehicle.


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Officer Weddle testified that he observed his partner walk up to the car and look in the window, and
his partner made a “motion for [Officer Weddle] to come up to the vehicle.” He said that, when he
approached the vehicle, he looked through the window onto the seat and “[t]here was a blue cloth,
and under it, sticking out from under it was what appeared to be the barrel of a handgun.” He
testified that he then notified his lieutenant, and his partner secured the weapon, which he believed
was “a revolver . . . a thirty-eight caliber handgun, long barrel, rusted finish.” Officer Weddle
testified that he discovered that the gun was loaded with what he believed were “five or six live
thirty-eight caliber rounds.” Officer Weddle testified that his partner took the victim to the police
station to give her statement to investigators.

         On cross-examination, Officer Weddle testified that he did not see what happened, and he
did not know what caused the victim’s injuries. He said that the victim told him that the Defendant
was hitting her in the face on the ride home and when they got back to her house, the victim said that
all of these events occurred before the officers arrived. He testified that the victim told him that,
when the Defendant pointed the gun at her in the car, she continued to argue with him. Officer
Weddle testified that he did not remember if he asked the Defendant for his version of the events
before or after he detained the Defendant, but he said that he put the Defendant in the police car
before his partner found the gun in the Defendant’s vehicle. Officer Weddle testified that he decided
to arrest the Defendant to maintain the victim’s safety, because of the victim’s injuries, the
allegations that a weapon was involved, and because the Defendant was “indifferent” when
questioned about the events.

         James Gaylor, an officer with the Memphis Police Department, testified that, on August 28,
2002, he and Officer Weddle were called to the victim’s residence at about 4:30 p.m. as a result of
a 911 hangup call. He said that he entered the house and met the Defendant and the victim. He
testified that the victim had “some bruises . . . or swelling on her face,” and that “[s]he was pretty
shaken up.” Officer Gaylor testified that the victim told him that she and the Defendant got into an
argument on the way home from work, and the Defendant pulled out a gun and “pointed it at her
head and stated he would kill her if she didn’t shut up. And if her kids got involved, he would kill
them too.” He said that the victim explained to him that the Defendant used his hands to hit her in
the face. Officer Gaylor testified that the victim told him that she and the Defendant drove home and
went into the house, and the Defendant continued to hit her in the face. He said that the victim told
him that she called 911, without the Defendant’s knowledge, and then hung up the phone.

        Officer Gaylor testified that after the victim described the gun to him he detained the
Defendant in the police car. He said that the victim told him that the gun was located in the
Defendant’s vehicle, wrapped in a blue cloth, and the officer went to the Defendant’s car and
“observed the pistol on the seat with the blue towel wrapped around it with the barrel sticking out
of it.” He testified that he knew the vehicle belonged to the Defendant based on the victim’s
statements and because he “ran the tag that came back to him - registered to [the Defendant].”

       On cross-examination, Officer Gaylor testified that he was not present when the victim
received her injuries, however, he stated that they looked “pretty fresh.” He said that he did not


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remember exactly what he and Officer Weddle asked the Defendant on the scene, but he did recall
that the Defendant was unwilling to offer any information. He testified that the Defendant was in
the police car before the officer found the gun in the Defendant’s car.

         James Patterson, a detective with the Memphis Police Department, testified that on August
28, 2002, he was a felony response officer and was present when Officers Weddle and Gaylor
brought the Defendant, the victim, and the evidence to the police station. He testified that he took
statements from the Defendant and the victim, and he advised the Defendant of his rights. He
testified that when he first met the victim “she was really scared,” and very tense. Detective
Patterson testified that the victim had “discoloration about her face and a cut on her lip . . . and . .
. bruising around the cheekbones.” On cross-examination, Detective Patterson testified that he
believed the victim “was terrified” because of what had just happened. He said he did not believe
her demeanor represented anger or nervousness about being in the police station.

         The Defendant testified that the victim was “a girlfriend of his,” and that, as of August 28,
2002, the victim had worked for him for about a year. He said that, on August 28, 2002, he picked
the victim up, brought her to work at “the shop,” and then he left to “do the house calls.” He said
that when he returned, no one was in the shop, and the victim showed up about two hours later. He
testified that he told the victim that “we’re not going to be able to use you down here because you’re
not dependable.” The Defendant testified that the victim had a “sack” from which she took out a
beer and “a dark-colored gun with a long barrel - an old rusty gun . . . .” He said that he told the
victim that he “was gonna call the police and turn [the gun] in,” and the victim “got real rowdy . .
. she really kind of got upset then.” The Defendant testified that the victim had a washing machine
under warranty that he needed to fix so he got a new one, as a replacement, and then told the victim
that he was going to “take [her] on to the house.” He said that, on the car ride to her house, the
victim was “still trying to persuade [him] . . . not to call the gun in.” He testified that he “never did
take the gun from her,” and, when they arrived at the victim’s house, he brought the washing
machine in to hook it up, and he asked the victim “where is the bag?” The Defendant testified that
he told her to give him the phone and, when she did, he called the police and “as soon as [he] started
dialing 911, she started getting loud again . . . and [he] hung up the phone.” He said that he told the
victim that he would call the police again after he had installed the new washing machine.

         The Defendant testified that he did not call the non-emergency police phone number because
he did not have the phone number, and he “just dialed what [he] knew” because he did not want to
waste time because the victim was “constantly getting upset.” He testified that, while he was
installing the washing machine, he asked the victim to get his water bottle out of his car and refill
it, and he heard her go outside, and she brought him his water bottle, refilled. The Defendant
testified that, while he completed the installation, he heard the victim talking in the front of the
house, and he went to the front room and saw her talking to the police. He said that the police told
him to “put [his] hands behind [his] back . . . [a]nd they took [him] on out the door.” He said that
he told the officers that he was the person who called the police and then he decided that, once the
handcuffs were on, “there wasn’t [any] point in talking to [the officer].” He testified that the police



                                                  -4-
never asked for his side of the story before they put him in the police car. He said that he did not hit
the victim at any time that day, and he did not point a gun at her or threaten to kill her.

         On cross-examination, the Defendant testified that the victim had “been in [his] life for about
nine . . . years,” and he admitted that he previously stated that he was dating the victim for nine
years. He said that he was married when his relationship with the victim occurred. He said that,
while he had testified that the victim was fired on August 28, 2002, she still continued to work in
the shop until her death in December 2002. The Defendant testified that, during the morning of
August 28, 2002, he went to do some errands, and when he returned around 12:00 p.m. the victim
was not at the office. He said that when she returned, she had injuries, including “discoloration to
her face.” He testified that he did not assault the victim on August 28, 2002, and he said that the gun
was in the victim’s possession the entire time.

        Based upon this evidence the jury found the Defendant guilty of reckless aggravated assault
and felon in possession of a handgun.

                                       B. Sentencing Hearing

         At the sentencing hearing, the Defendant called Robert Nichols to testify. Nichols stated that
he has known the Defendant for over fifteen years, and he works for the Defendant. He described
the Defendant as “a nice human being” who tries to help people. He said that the Defendant will
give “[a]ny kind of help he can do.” He opined that the Defendant “make[s] sure people [are] all
right” and is “a pretty good individual as long as [he has] been knowing him.” He stated that the
Defendant is “a workaholic” and that his customers are “[v]ery happy.” Nicols testified that the
Defendant is a minister, but he did not know how often the Defendant preached. He stated that he
went to church with the Defendant on a few occasions and “mostly every Sunday, [the Defendant]
is at church.” Nichols said that the Defendant’s business is “built around [the Defendant],” and “it’s
really going to be at a loss without him.” He described the Defendant as a good, nice, and helpful
person. Nichols testified that, if the Defendant is given prison time, the business will be closed. He
stated that he knew the Defendant when the Defendant was charged with armed robbery in 1980 and
convicted of assault in 1990, and he said that he did not know of any time that the Defendant carried
a gun during the time they spent together.

          Ilene Maclin, the Defendant’s wife, testified that she and the Defendant have been married
for eleven years, and the Defendant is “kind, compassionate . . . God-fearing . . . a hard worker, [and
a] good provider.” She said that she knew of the Defendant’s affair, and she “wasn’t happy about
it . . . but [she] was glad he came to [her] and told [her] about it.” Maclin testified that if the
Defendant is sentenced to prison, she would “lose about everything that [she has] . . . [because] he
was paying all the bills [except one].” She stated that she and the Defendant do not have any
children together, but that there are “five kids among the both of [them].” She said that the
Defendant “was a minister, then he was moved higher up as an evangelist of the church.” She said
that the business is not doing well because the Defendant is not there and this has caused financial
problems for her household. Maclin stated that, before these events, the business “was going real


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good.” She said that the Defendant is “always doing something for somebody.” She recommended
probation for the Defendant because she is “suffering right now” and “[j]ust today, someone broke
into [her] home . . . .”

        On cross-examination, Maclin testified that she has known about the affair for about five
years and that both she and the Defendant knew the victim because “[they] started helping her.” She
said that she did not believe that the affair lasted nine years, but that the Defendant “probably said
that he knew her for nine years.” Maclin testified that the Defendant has been ordained as an
evangelist for about four or five years. She said that she was aware that the Defendant had
previously been convicted of aggravated robbery with a deadly weapon when he was eighteen years
old. She said that she was not aware that the Defendant was convicted of an assault in 1990. She
stated that she has never known the Defendant to carry a weapon, and she does not believe that the
Defendant is a violent person. She explained that he had never been violent with her.

         Valerie Bennett testified that she knew the Defendant because she helped him and his wife
around the business, and she met him through the Defendant’s mother. She stated that the Defendant
is a “nice . . . good . . . hard-working . . . [and] very honest person.” She testified that she has known
the Defendant for about five years. Bennett testified that the Defendant is “a good person which is
deserving enough to have probation.” She explained that she has never seen “any kind of meanness
or anything toward him.” On cross-examination, she said that she knew the victim through work,
but was unaware of the affair between the victim and the Defendant. She testified that she was not
aware of the Defendant’s prior convictions for aggravated robbery with a deadly weapon and assault.

                                              II. Analysis

        On appeal, the Defendant contends that: (1) the trial court gave improper jury instructions
on the reckless aggravated assault charge; (2) the State failed to fully comply with the Defendant’s
request for discovery; (3) the trial court erred by denying the Defendant’s motion to suppress the
weapon found in the Defendant’s vehicle; (4) the trial court erred by failing to sever the aggravated
assault offense from the felon in possession of a handgun offense; (5) the admission of an
unavailable witness’ statements violated the Defendant’s state and federal rights to confrontation;
(6) the trial court erred by finding a witness’ statements to be excited utterances; (7) the trial court
erred by allowing the jury to learn that the victim was deceased; (8) the State violated a pre-trial
order by questioning the Defendant regarding the victim’s death; (9) the trial court erred by allowing
the State to ask the Defendant if he was married at the time he was involved with the victim; and
(10) the trial court erred by not allowing the Defendant to impeach a witness’ credibility with a prior
conviction involving dishonesty.

                                         A. Jury Instruction

        The Defendant contends that the trial court committed reversible error when it instructed the
jury on the offense of reckless aggravated assault. The State concedes that the trial court erred in its
instruction to the jury, however, it asserts that this error is harmless beyond a reasonable doubt.


                                                   -6-
        A trial court has the duty, in criminal cases, to fully instruct the jury on the general principles
of law relevant to the issues raised by the evidence. See State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999); State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); State v. Elder, 982 S.W.2d 871, 876
(Tenn. Crim. App. 1998). In other words, the court must instruct the jury on those principles closely
and openly connected with the facts before the court, which are necessary for the jury’s
understanding of the case. Elder, 982 S.W.2d at 876. Because questions of the propriety of jury
instructions are mixed questions of law and fact, our standard of review here is de novo, with no
presumption of correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001); State v. Rush, 50
S.W.3d 424, 427 (Tenn. 2001).

         Generally, “a defendant has a constitutional right to a correct and complete charge of the
law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). When reviewing jury instructions on appeal
to determine whether they are erroneous, this Court should “review the charge in its entirety and read
it as a whole.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Our supreme court, relying on
the words of the United States Supreme Court, has noted that:

        “jurors do not sit in solitary isolation booths parsing instructions for subtle shades of
        meaning in the same way that lawyers might. Differences among them in
        interpretation of instructions may be thrashed out in the deliberative process, with
        common sense understanding of the instructions in the light of all that has taken place
        at the trial likely to prevail over technical hairsplitting.”

Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)). A jury instruction is considered
“prejudicially erroneous,” Hodges, 944 S.W.2d at 352, only “if it fails to fairly submit the legal
issues or if it misleads the jury as to the applicable law.” Id. Even if a trial court errs when
instructing the jury, such instructional error may be found harmless. State v. Williams, 977 S.W.2d
101, 104 (Tenn. 1998). A charge should be considered prejudicially erroneous if it fails to fairly
submit the legal issues or if it misleads the jury as to the applicable law. Hodges, 944 S.W.2d 346,
352 (Tenn. 1997); see also State v. Hall, 958 S.W.2d 679, 696 (Tenn. 1997).

       In the case under submission, the jury instruction at issue was the instruction on reckless
aggravated assault. The trial court gave the following jury instruction for the offense of reckless
aggravated assault:

        For you to find the defendant guilty of this offense, the state must have proven,
        beyond a reasonable doubt, the existence of the following essential elements:
        That the defendant recklessly caused another to reasonably fear imminent bodily
        injury and that the defendant used or displayed a deadly weapon.

        As provided by statute, a person commits reckless aggravated assault when he or she
“recklessly commits an assault as defined in § 39-13-101(a)(1), and: (A) [c]auses serious bodily
injury to another; or (B) [u]ses or displays a deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(2)


                                                   -7-
(2003). Under Tennessee Code Annotated section 39-13-101(a)(1), a person commits assault when
he or she “[i]ntentionally, knowingly or recklessly causes bodily injury to another . . . .” Therefore,
the elements of reckless aggravated assault are: (1) intentionally, knowingly, or recklessly causes
bodily injury; and (2) causes serious bodily injury to another or uses or displays a deadly weapon.

        In State v. Goodwin, 143 S.W.3d 771 (Tenn. 2004), the defendant was convicted of two
counts of reckless aggravated assault. The trial court gave jury instructions that were similar to the
jury instructions in the case under submission, which the Tennessee Supreme Court determined were
erroneous. Id. at 776 n.2. The Court stated that “the plain language defining the offense, reckless
aggravated assault requires bodily injury.” Id. In State v. Brandon Patrick, No. 03C01-9905-CC-
00201, 2000 WL 122247 (Tenn. Crim. App., at Knoxville, Jan. 26, 2000), no perm. app. filed, this
Court looked at a jury instruction identical to the instruction the jury received in the present case and
restated that reckless aggravated assault requires proof that a defendant “(1) Intentionally, knowingly
or recklessly causes bodily injury to another.” Patrick, 2000 WL 122247, at *5, see also Tenn. Code
Ann. § 39-13-101 (a)(1). The Court found that “[t]he trial court’s erroneous instruction effectively
removed this element from the jury’s consideration.” The instruction provided to the jury is not an
offense recognized by Tennessee law. See Patrick, 2000 WL 122247, at *5.

         Similarly, in the case under submission, the jury instruction removed the same language of
Tennessee Code Annotated section 39-13-101 (a)(1) from the jury’s consideration. We are
constrained to conclude that the trial court erred when it instructed the jury. An element of reckless
aggravated assault is that a defendant caused bodily injury. Because the jury instructions on reckless
aggravated assault did not include “bodily injury” for jury consideration, which is an essential
element of reckless aggravated assault, we conclude that the jury received incomplete instructions
in this case.

        Having found error, we next determine whether the error is harmless. Tennessee Rule of
Appellate Procedure 36(b) provides: “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.” The proper inquiry is “whether it appears beyond a reasonable doubt that the
[instructional] error did not affect the outcome of the trial.” Allen, 69 S.W.3d at 191. In making the
harmless error determination, this court should “conduct a thorough examination of the record,
including the evidence presented at trial, the defendant’s theory of defense, and the verdict returned
by the jury.” Id.

        Based upon the facts of this case, in which an essential element of the offense was removed
from the jury’s consideration, we are unable to conclude that the instructional error was harmless
beyond a reasonable doubt. Based on the foregoing reasons, the Defendant is entitled to a new trial
for the reckless aggravated assault conviction because of the trial court’s instructional error. In the
event of further review, however, and because we have concluded that the felon in possession of a
handgun conviction and sentence should be affirmed, we will analyze the remaining issues raised
on appeal.


                                                  -8-
                                      B. Discovery Violation

        The Defendant contends that the State failed to comply with his discovery request. Pretrial,
the Defendant filed a motion for discovery, pursuant to Rule 16 of the Tennessee Rules of Criminal
Procedure. The Defendant asserts that the State failed to comply with this motion by not giving to
him statements that he made to the police during questioning related to a separate incident. The
State contends that the Defendant has waived this issue because he failed to object to the use of the
statement, on the grounds of failure to disclose, at the time of trial. We agree with the State.

        The failure to preserve issues for appeal generally results in a waiver. See Tenn. R. App. P.
36(a); see also State v. Charles Wade Smith, III, No. M2001-01740-CCA-R3-CD, 2003 WL
22116629 (Tenn. Crim. App., at Nashville, September 11, 2003), no perm. app. filed. By failing
to make a contemporaneous objection to testimony, a defendant waives appellate consideration of
the issue. State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000). Further, this Court has
held that “[a] trial judge will not be put in error on grounds raised for the first time on appeal when
the objection at trial was based on another ground which was declared insufficient.” State v.
Mitchell Ware, 1986 WL 652, at *2 (Tenn. Crim. App., at Knoxville, Jan 7, 1986), perm. app.
denied (Tenn. March 24, 1986), see also State v. Calvin Grady Purvis, No. CCA02C01-
9412CC0027, 1995 WL 555052, at *5 (Tenn. Crim. App., at Jackson, Sept. 20, 1995), no perm. app.
filed. Rule 36(a) states that “[n]othing in this rule shall be construed as requiring relief be granted
to a party responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.” After a thorough examination of the record, we
conclude that the Defendant has waived this issue because, although the Defendant made a
contemporaneous objection, that objection was based on grounds other than discovery. We will,
however, discuss this issue on its merits.

        Under Tennessee Rule of Criminal Procedure 16, the State has an obligation to disclose any
written or recorded statements made by the Defendant and prepared by law enforcement officers.
State v. Moore, 703 S.W.2d 183, 185 (Tenn. Crim. App. 1985); see State v. Brown, 552 S.W.2d 383,
386 (Tenn. 1977). The State may withhold disclosure of a statement it does not intend to offer in
evidence only if that statement is oral. State v. Hicks, 618 S.W.2d 510, 513 (Tenn. Crim. App.
1981). Otherwise, the defendant has what has been described as “virtually an absolute right” to
disclosure. Id. at 513-14 (citation omitted). This Court has held that Rule 16 covers “not only
written, recorded and transcribed verbatim statements by a criminal defendant, but also written
‘interpretation(s) or summar[ies]’ of statements made by the accused, or a memorandum of an
interview ‘even though not verbatim and not signed’ by the defendant.” Id. at 514 (citation omitted);
see State v. Delk, 692 S.W.2d 431, 436-37 (Tenn. Crim. App. 1985). In Delk, this Court held that
a law enforcement agent’s notes of an interview with the defendant constituted an “interpretation or
summary” of the defendant’s statement, and, under Hicks, were subject to full discovery by the
defendant upon request. Delk, 692 S.W.2d at 436-37.

       To enforce discovery violations under this rule, Tennessee Rule of Criminal Procedure
16(d)(2) provides that if there has been noncompliance, the trial court may order the offending party


                                                 -9-
to permit the discovery or inspection, grant a continuance, prohibit the introduction of the evidence
not disclosed or enter such other order as the court deems just under the circumstances. “Thus, it
is clear that the court has wide discretion to fashion a remedy that is appropriate for the
circumstances of each case and the sanction must fit the circumstances of that case.” State v. Dennie
Ray Loden, No. 03C01-9311-CR-00380, 1995 WL 23351, at *2 (Tenn. Crim. App., at Knoxville,
Jan. 19, 1995), perm. app. denied (Tenn. 1995) (citing State v. James, 688 S.W.2d 463, 466 (Tenn.
Crim. App. 1984)); see State v. Leon Goins, No. W1999-01681-CCA-R3-CD, 1999 WL 1531111,
at *2 (Tenn. Crim. App., at Jackson, Dec. 27, 1999) perm. app. denied (Tenn. 2000).

        The statement in issue is a statement that the Defendant made to the police in a separate
investigation relating to the victim’s subsequent death. The Defendant contends that the State had
an obligation to disclose any written or recorded statements made by the Defendant to law
enforcement. Specifically, the Defendant contends that he was entitled to the disclosure of this
statement because it was reduced to writing and was made in response to police interrogation. The
State asserts that the statement does not fall within the purview of the discovery rule because the
statement was taken in connection with a separate investigation and was used only to impeach the
Defendant. Further, the State contends that the statement made by the Defendant to the police does
not relate to the offense charged. We agree with the Defendant. The State was under an obligation
to disclose, to the Defendant, this statement that the Defendant made to law enforcement officers.
The statement falls within Rule 16 because it was a relevant written statement made by Defendant
that the State knew of and possessed. See Tenn. R. Crim. P. 16 (a)(1)(A). Further, we note that the
section of Rule 16 which requires that the recorded testimony “relates to the offense charged,” is
applicable only to grand jury testimony.

        Having found error, we must next determine whether the error is harmless. Tennessee Rule
of Appellate Procedure 36(b) provides: “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.” Further, “evidence should not be excluded except when it is shown that a party
is actually prejudiced by the failure to comply with the discovery order and that the prejudice cannot
be otherwise eradicated.” State v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981) (citing
Tenn. R. Crim. P. 16(d)(2)). “The exclusionary rule should not be invoked merely to punish the
[S]tate or the defendant for deliberate conduct in failing to comply with a discovery order.” Id. We
conclude that the Defendant has not shown that he was prejudiced by the State failing to provide to
him a copy of this statement before trial. The portion of the statement in issue concerns the status
and length of time of the Defendant’s relationship with the victim. We find that, considering the
weight of the evidence presented at trial, the exclusion of this statement would not have affected the
verdict. Therefore, we conclude that the discovery violation by the State was harmless error and,
accordingly, this issue is without merit.



                                       C. Motion to Suppress


                                                -10-
        Pretrial, the Defendant filed a motion to suppress the weapon found in the Defendant’s
vehicle. As grounds, the Defendant alleged: (1) the law enforcement officers lacked probable cause
to arrest the Defendant; (2) the Defendant was seized without reasonable suspicion; (3) the law
enforcement officers entered the Defendant’s vehicle without a warrant; and (4) no exigent
circumstances existed. The trial court conducted an evidentiary hearing and denied the motion. The
trial court held that:

        In the instant case, the gun was particularly described by the victim, and was
        observed in plain view by the police officers. There was without question reasonable
        suspicion that the observed gun needed to be preserved as evidence. While taking
        the time to obtain a warrant, the car might have been driven away by some unknown
        person with a key, or been broken into to obtain the weapon in plain view through the
        window. The victim, in her excited state, may have obtained the weapon for some
        improper use, creating an issue of public safety. Given a deadly weapon in plain
        view in an unsecured automobile, needed as evidence in a felony arrest, these two
        police officers had the right to seize the weapon without a warrant, due in no small
        part to exigent circumstances.

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from
that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this court is not bound
by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of
establishing that the evidence contained in the record preponderates against the findings of fact made
by the trial court. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        Both the Fourth Amendment to the United States Constitution and Article I, section 7 of the
Tennessee Constitution provide protection for citizens against “unreasonable searches and seizures.”
In general, a warrantless search is considered presumptively unreasonable and, therefore, violates
constitutional protections. See State v. Walker, 12 S.W.3d 460, 467 (Tenn. 2000); see also State v.
Gregory Morrow, No. W2003-02401-CCA-R3-CD, 2004 WL 2050287 (Tenn. Crim. App., at
Jackson, Sept. 13, 2004), no perm. app. filed. The Fourth Amendment to the United States
Constitution, made applicable to the states by the Fourteenth Amendment, provides:

        The right of the people to be secure in their persons, houses, papers, and effects,
        against unreasonable searches and seizures, shall not be violated, and no warrants



                                                  -11-
       shall issue, but upon probable cause, supported by oath or affirmation, and
       particularly describing the place to be searched, and the person or things to be seized.

Article I, section 7 of the Tennessee Constitution provides that:

       [P]eople shall be secure in their persons, houses, papers and possessions, from
       unreasonable searches and seizures; and that general warrants, whereby an officer
       may be commanded to search suspected places, without evidence of the fact
       committed, or to seize any person or persons not named, whose offences are not
       particularly described and supported by evidence, are dangerous to liberty and ought
       not to be granted.

Our Supreme Court has held that Article I, section 7 of the Tennessee Constitution “is identical in
intent and purpose with the Fourth Amendment,” and, therefore, federal cases applying the Fourth
Amendment should be regarded as “particularly persuasive.” Sneed v. State, 423 S.W.2d 857, 860
(Tenn. 1968); see also State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). Both of these
constitutional provisions are intended to “‘safeguard the privacy and security of individuals against
arbitrary invasions of government officials.’” State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002)
(quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). In this case, it is clear that the
police did not have a warrant to search the Defendant’s vehicle.

        The plain view exception applies when a seized item is in “plain view” from a lawful vantage
point of the officer that conducts the search. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct.
992, 993, 19 L.Ed.2d 1067 (1968); see also State v. Jamie Lee Pittman, No. 03C01-9701-CR-00013,
1998 WL 128801 (Tenn. Crim. App., at Knoxville, March 24, 1998), no perm. app. filed. The “plain
view” doctrine requires proof that: (1) the objects seized were in plain view; (2) the viewer had a
right to be in position for the view; and (3) the incriminating nature of the object was immediately
apparent. Horton v. California, 496 U.S. 128, 136-141, (1990); see also State v. Jamie Lee Pittman,
No. 03C01-9701-CR-00013, 1998 WL 128801 (Tenn. Crim. App., at Knoxville, March 24, 1998),
no perm. app. filed.

        We conclude that the circumstances surrounding the challenged search satisfy the plain view
exception to the warrant requirement. First, the police officers had a right to “be in position for the
view” because the Defendant’s vehicle was parked at the victim’s residence, which was the residence
from which the 911 call was received. By merely approaching the vehicle, the police officers were
in a legitimate position to look through the window of the vehicle. The vehicle was parked on or
around the victim’s property and the victim, or someone from the victim’s residence, summoned the
police. Second, the gun that was seized was in plain view from the officers’ position. Officer
Gaylor testified that he “observed the pistol on the seat with the blue towel wrapped around it,”
which matched the description provided by the victim, who had, shortly before, recounted the
incident involving the Defendant. Further, Officer Weddle testified that the victim told him that the
Defendant pointed the gun at her and the gun was, therefore, used in a crime. Finally, Officer Gaylor



                                                 -12-
testified that he saw the “barrel [of the gun] sticking out of [the blue towel],” which makes the
incriminating nature of the object instantly apparent.

        As stated above, the trial court specifically stated that “[i]n the instant case, the gun was
particularly described by the victim, and was observed in plain view by the police officers.” We find
that the police officers were justified in entering the Defendant’s vehicle and seizing the weapon
based on the plain view exception to the warrant requirement and, therefore, this issue is without
merit.

                                   D. Failure to Sever Offenses

        The Defendant next contends that the trial court erred by denying his motion to sever the
offenses in this case. Pretrial, the Defendant filed a motion requesting that the trial court sever the
felon in possession of a weapon offense from the aggravated assault offense. The trial court denied
this motion, holding that:

       There is no question that these two offenses are based on the same conduct, arise
       from the same episode, are part of a common scheme and are of the same or similar
       character. Further . . .[e]vidence that the defendant assaulted the victim with the gun
       would be admissible in his convicted felon in possession of a firearm trial to show
       possession. It is also not deemed necessary ‘to promote a fair determination of the
       defendant’s guilt or innocence of each offense,’ that these offenses be severed, Tenn.
       R. Crim. P. 14(b)(2)(I), especially in light of a curative instruction to be given to the
       jury along the lines of T.P.I. 42.10 during the introduction of the felony status or
       conviction, and as well a written instruction at the end of the trial.

A motion for severance of offenses is a matter which addresses itself to the sound discretion of the
trial court. State v. Furlough, 797 S.W.2d 631, 642 (Tenn. Crim. App. 1990). Decisions by trial
courts to consolidate or sever offenses are reviewed on an abuse of discretion standard. State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). This Court will not interfere with the exercise of this
discretion unless it appears on the face of the record that the accused was prejudiced by the court’s
ruling. State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). Whether severance
should be granted “depends upon the facts and circumstances involved in the various crimes
charged.” State v. Morris, 788 S.W.2d 820, 822 (Tenn. Crim. App. 1990). The trial court is required
to hold a pretrial hearing to determine the appropriateness of severance. State v. Hoyt, 928 S.W.2d
935, 944 (Tenn. Crim. App. 1995). The trial court must make a determination that the evidence of
one crime is relevant to a material issue in the trial of the other. State v. Moore, 6 S.W.3d 235, 239
(Tenn. 1999). The court must then consider whether the probative value of the evidence outweighs
any prejudicial effect. Hoyt, 928 S.W.2d at 944.

        Rules regarding the consolidation and severance of offenses are included in the Tennessee
Rules of Criminal Procedure. Rule 8(b) of the Tennessee Rules of Criminal Procedure, which allows
for the permissive joinder of offenses, states: “Two or more offenses may be joined in the same


                                                 -13-
indictment, presentment, or information, with each offense stated in a separate count, or consolidated
pursuant to Rule 13 if the offenses constitute parts of a common scheme or plan or if they are of the
same or similar character.” Tenn. R. Crim. P. 8(b). Rule 13(a) provides as follows: “The court may
order consolidation of two or more indictments, presentments, or informations for trial if the offenses
and all defendants could have been joined in a single indictment, presentment, or information
pursuant to Rule 8.” Tenn. R. Crim. P. 13(a). Nonetheless, Rule 14 of the Tennessee Rules of
Criminal Procedure states that “[i]f two or more offenses have been joined or consolidated for trial
. . . , the defendant shall have a right to a severance of the offenses unless the offenses are part of a
common scheme or plan and the evidence of one would be admissible upon the trial of the others.”
Tenn. R. Crim. P. 14(b)(1). To avoid severance, both portions of the rule must be satisfied. See
State v. Hallock, 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993); see also, State v. Tolivar, 117
S.W.3d 216, 227-31 (Tenn. 2003).

         The first prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure requires that
the trial court find a common scheme or plan. In Tennessee, there are three categories of common
scheme or plan evidence: (1) evidence showing a distinctive design or signature crime; (2) evidence
demonstrating a larger, continuing plan or conspiracy; and (3) evidence that the offenses are part of
the same transaction. State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999). “Before multiple offenses
may be said to reveal a distinctive design, . . . the ‘modus operandi employed must be so unique and
distinctive as to be like a signature.’” Id. (quoting State v. Carter, 714 S.W.2d 241, 245 (Tenn.
1986)). The second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure is what
the Tennessee Supreme Court has deemed the “primary inquiry” in any severance case: whether the
evidence of one offense would be admissible in the trial of the other if the two offenses remained
severed. State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984). Our Supreme Court has stated that
“‘[u]nless [it is] expressly tied to a relevant issue, evidence of a common scheme or plan can only
serve to encourage the jury to conclude that since the defendant committed the other crime, he also
committed the crime charged.’” Moore, 6 S.W.3d at 239 n.5 (quoting Hallock, 875 S.W.2d at 292).

       The Court has also stated that “a common scheme or plan for severance purposes is the same
as a common scheme or plan for evidentiary purposes.” Id. at 240 n.7. Thus, Tennessee Rule of
Evidence 404(b) is relevant to our analysis of this issue. Rule 404(b) excludes evidence of “other
crimes, wrongs, or acts” committed by the defendant when offered only to show the defendant’s
propensity to commit the crime charged. See Tenn. R. Evid. 404(b). Generally, evidence that the
accused committed crimes independent of those for which he is on trial is inadmissible because such
evidence lacks relevance and invites the finder of fact to infer guilt from propensity. See Moore, 6
S.W.3d at 239; see also Tenn. R. Evid. 404(b). Evidence of other crimes, wrongs, or acts, however,
may be admissible for other purposes, such as “‘to show identity, guilty knowledge, intent, motive,
to rebut a defense of mistake or accident, or to establish some other relevant issue.’” Moore, 6
S.W.3d at 239 n.5 (quoting Hallock, 875 S.W.2d at 292). Offenses that are part of a common
scheme or plan are typically offered to establish the identity of the perpetrator. Id. at 239. As the
Tennessee Supreme Court has noted, “identity is usually the only relevant issue supporting
admission of other offenses when the theory of the common scheme or plan is grounded upon a
signature crime.” Id.


                                                  -14-
       Finally, the trial court must also conclude that the probative value of the evidence of other
offenses is not outweighed by the prejudicial effect that admission would have on the defendant.
Tenn. R. Evid. 404(b)(3); see also State v. Denton, 149 S.W.3d 1, 13 (Tenn. 2004).

        The first question, then, for our consideration is whether the offenses in this case were part
of a common scheme or plan. The trial court specifically held that “[t]here is no question that these
two offenses are based on the same conduct, arise from the same episode, are part of a common
scheme and are of the same or similar character.” We agree. It is clear that the offenses in this case
are part of a common scheme or plan in that the Defendant’s possession of a handgun was part of
the basis of his indictment, and subsequent conviction, for reckless aggravated assault.

         Having determined that the offenses in this case were part of a common scheme or plan, we
must now determine whether evidence of one offense would be admissible in the trial of the other
if the offenses had been severed. As the trial court stated, “[e]vidence that the [D]efendant assaulted
the victim with [a] gun would be admissible” in the Defendant’s trial for being a convicted felon in
possession of a firearm to show possession. Further, we note that the trial court found that severance
of the Defendant’s offenses is not necessary “to promote a fair determination of the defendant’s guilt
or innocence of each offense,” especially since the trial court rendered a curative jury instruction
during trial and a written jury instruction pertaining to this issue at the end of the trial. See Tenn.
R. Crim P. 14(b)(2)(I). The probative value of the Defendant’s other offense is not outweighed by
its prejudicial effect. We conclude, therefore, that this issue is without merit.

                                        E. Excited Utterance

        The Defendant contends in this appeal that the trial court erroneously allowed Officer
Weddle to testify about statements that the victim made to the officer on the day that the assault
occurred. Specifically, the Defendant argues that such evidence was inadmissible hearsay. The trial
court agreed that these statements were hearsay, but found that they were excited utterances and, as
such, were admissible hearsay.

        “‘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). As
a general rule, hearsay is not admissible at trial except as provided by the rules or otherwise by law.
Tenn. R. Evid. 802. “The determination of whether a statement is hearsay and whether it is
admissible through an exception to the hearsay rule is left to the sound discretion of the trial court.”
State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001). As such, an appellate court will not reverse a trial
court’s ruling regarding the admission or exclusion of hearsay evidence absent a clear showing that
it abused its discretion. Id

       The reliability and circumstantial guarantees of trustworthiness of particular nontestimonial
statements have allowed courts to make limited exceptions to the hearsay rule. See State v. Edwin
Gomez and Jonathan S. Londono, No. M2002-01209-CCA-R3-CD, 2004 WL 305787 (Tenn. Crim.
App., at Nashville, Feb. 18, 2004), perm to app. granted (Tenn. Oct. 4, 2004). One such exception


                                                 -15-
is the “excited utterance” exception. An “excited utterance” is defined by Tennessee Rule of
Evidence 803(2) as an otherwise inadmissible hearsay statement that “relat[es] to a startling event
or condition [and is] made while the declarant was under the stress of excitement caused by the event
or condition.” In order for this exception to apply, three requirements must be met: (1) there must
be a startling event or condition; (2) the statement must “relate to” the startling event or condition;
and (3) the declarant must have made the statement while under the stress or excitement of the event
or condition. Stout, 46 S.W.3d at 699-700; State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997).
The rationale for admitting such statements, known as “excited utterances,” is twofold:

       First, since this exception applies to statements where it is likely there was a lack of
       reflection--and potential fabrication--by a declarant who spontaneously exclaims a
       statement in response to an exciting event, there is little likelihood, in theory at least,
       of insincerity. . . . Second, ordinarily the statement is made while the memory of the
       event is still fresh in the declarant’s mind. This means that the out-of-court statement
       about an event may be more accurate than a much later in-court description of it.

Gordon, 952 S.W.2d at 819-20 (quoting Neil P. Cohen, et al., Tennessee Law of Evidence §
803(2).1, at 532 (3d ed. 1995)).

        The Defendant asserts that the victim’s statements are not excited utterances because they
were made in response to police questions, and, based on the victim’s detailed account of the events,
she was not acting spontaneously and free from reflection. Further, the Defendant challenges the
spontaneity of the victim’s statements and asserts that the victim could not have been “still laboring
under the excitement caused by the event or condition” because of the amount of time that passed
between the event and the arrival of the police. The State asserts that the victim suffered from a
startling event and that this was reflected in her statement to the police. Further, the State contends
that the event did not end until the police arrived at the house and made the victim feel safe.

        The first requirement for a statement to fall under the excited utterance exception to the
hearsay rule is that a startling event occurs. “‘[A]ny event deemed startling is sufficient.’” Id.
(quoting Neil P. Cohen, et al., Tennessee Law of Evidence § 803(2).2, at 53 (3d ed. 1995)). The
second requirement, that the statement “relate to” the startling event or condition, can be satisfied
in many ways. “‘[C]onsiderable leeway is available,’ because the statement ‘may describe all or part
of the event or condition, or deal with the effect or impact of that event or condition.’” Id. (quoting
Neil P. Cohen, et al., Tennessee Law of Evidence, § 803(2).2, at 53 (3d ed. 1995)). Further,

       The time interval is but one consideration in determining whether a statement was
       made under stress or excitement: Other relevant circumstances include the nature and
       seriousness of the event or condition; the appearance, behavior, outlook, and
       circumstances of the declarant, including such characteristics as age and physical or
       mental condition; and the contents of the statement itself, which may indicate the
       presence or absence of stress.



                                                  -16-
State v. Gordon, 952 S.W.2d 817, 820. “[T]he ‘event must be sufficiently startling to suspend the
normal, reflective thought processes of the declarant.’” Id. (quoting McCormick on Evidence, §
297, at 854 (3d ed. 1984)).

         In the case under submission, we conclude that the first two requirements are met. Clearly,
there was a startling event involving a gun, and the statements the victim made to the police related
to that startling event. The final requirement for the excited utterance exception is that the statement
be made while the declarant was still under the stress of the event. It is reasonable to conclude that,
in the case under submission, the victim was reacting emotionally to her encounter with the
Defendant, which further supports the State’s argument that the trial court correctly determined that
the victim’s statement to Officer Weddle was an “excited utterance.” When Officer Weddle arrived
at the victim’s house, she could see that the victim was “on the couch, crying and shaking.” In this
case, we conclude that the trial court did not abuse its discretion when it found that the victim’s
statement was an excited utterance because the victim was laboring under the strain and excitement
caused by the main startling event. We conclude, therefore, that this issue is without merit.

                                             F. Confrontation Clause

        The Defendant contends that the admission of the victim’s hearsay statements violated the
Defendant’s State and Federal right to confront witnesses testifying against him. After concluding
that the victim’s statements are excited utterances, we turn to the substance of the statement to
determine its admissibility. See Gomez, 2004 WL 305787; see also State v. Nathan Alex Weaver,
No. M2001-00873-CCA-R3-CD, 2003 WL 1877107 (Tenn. Crim. App., at Nashville, Apr. 15,
2003), no perm. app. filed.

          The Confrontation Clause of the United States Constitution guarantees a criminal defendant
the right to confront witnesses against him or her. See U.S. Const. amend. VI; Davis v. Alaska, 415
U.S. 308, 315 (1974). This right is also protected by the Tennessee Constitution. See Tenn. Const.,
art. I, § 9.1 The right of confrontation encompasses the right to cross-examine. See Barber v. Page,
390 U.S. 719, 721 (1968). It is the principal means by which the believability of a witness and the
truth of his testimony are tested. See Davis, 415 U.S. at 316. The right to confront and cross-examine
is not absolute however, and may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process. See Chambers v. Mississippi, 410 U.S. 284, 295 (1973).
Reliable hearsay which comports with an exception to the hearsay rule does not violate a defendant’s
confrontation rights. State v. Causby, 706 S.W.2d 628, 631 (Tenn. 1986); see also State v. Kennedy,
7 S.W.3d 58, 65 (Tenn. Crim. App. 1999). Such statements are deemed “so inherently trustworthy
that adversarial testing would add little to their reliability.” Kennedy, 7 S.W.3d at 66. In Ohio v.
Roberts, 448 U.S. 56 (1980), the Supreme Court held that to meet that high burden of truthfulness,



         1
           Because the Tennessee Constitution requires “face-to-face” confrontation, it affords a defendant greater
constitutional protection than does the United States Constitution. See Neil P. Cohen et al., Tennessee Law of Evidence
§ 802.3 (3d ed. 1995) (citing State v. Deuter, 839 S.W .2d 391 (Tenn. 1992)).

                                                         -17-
the statement must either: (1) fall within a firmly rooted hearsay exception; or (2) bear particularized
guarantees of trustworthiness. Id. at 66.

        The Defendant claims that, based on the United States Supreme Court decision in Crawford
v. Washington, the victim’s statements violate the Defendant’s rights to confrontation. In Crawford,
the Court determined that statements made by a defendant’s wife during a police interrogation, after
the defendant allegedly stabbed his wife, violated the defendant’s right to confrontation. The Court
held that “[w]here testimonial statements are involved, we do not think the Framers meant to leave
the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous
notions of ‘reliability.’” Crawford v. Washington, 541 U.S. 36, __ (2004). The Court criticized the
Roberts decision because it “conditions the admissibility of all hearsay evidence on whether it falls
under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’”
Id. at 1369. The Crawford court distinguished between testimonial and non-testimonial evidence.

       Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
       design to afford the States flexibility in their development of hearsay law- -as does
       Roberts, and as would an approach that exempted such statements from
       Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue,
       however, the Sixth Amendment demands what the common law required:
       unavailability and a prior opportunity for cross-examination.

Id. at 1374 (emphasis added). The Crawford decision did not explicitly define testimonial evidence,
however, the Court stated that “. . . it applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. In the case under
submission, the victim had summoned the police to her home, fearing her safety, and she,
subsequently, talked to the police about the events upon their arrival. This was not a formal
statement or a police interrogation, and the statements made to the police by the victim were not
testimonial in nature. Therefore, according to Crawford, the test set forth in Roberts applies to our
determination of whether the victim’s testimonial statements were properly admitted.

        Reliable hearsay which comports with an exception to the hearsay rule does not violate a
defendant’s confrontation rights. See State v. Causby, 706 S.W.2d 628, 631 (Tenn. 1986) (citing
Ohio v. Roberts, 448 U.S. 56, 66 (1980)); see also Kennedy, 7 S.W.3d at 65. Such statements are
deemed “so inherently trustworthy that adversarial testing would add little to their reliability.”
Kennedy, 7 S.W.3d at 66. “Established practice, in short, must confirm that statements falling within
a category of hearsay inherently ‘carry special guarantees of credibility’ essentially equivalent to, or
greater than, those produced by the Constitution’s preference for cross-examined trial testimony.”
Lilly v. Virginia, 527 U.S. 116, 128 (1999) (quoting White v. Illinois, 502 U.S. 346, 356 (1992)).

        Both the United States Supreme Court and the Tennessee Supreme Court have determined
that the excited utterance exception is firmly rooted. State v. Allan Brooks, No. 01C01-9510-CC-
00324, 1998 WL 754315, at *11 (Tenn. Crim. App., at Nashville, Oct. 29, 1998), perm. app. denied
(Tenn. Apr. 19, 1999) (citing White v. Illinois, 502 U.S. 346, 355 n.8 (1992); State v. Taylor, 771


                                                 -18-
S.W.2d 387, 393-94 (Tenn.1989)). “There can be no doubt that the . . . [excited utterance]
exception[] . . . [is] ‘firmly rooted.’ The exception for spontaneous declarations is at least two
centuries old . . . and may date to the late 17th century. . . It is currently recognized in Federal Rule
of Evidence 803(2), and in nearly four-fifths of the States.” White v. Illinois, 502 U.S. 346, 355 n.8
(1992).

        We conclude that the victim’s statements are nontestimonial and fall within a firmly rooted
hearsay exception. The admittance of these statement, therefore, do not violate the Defendant’s right
to confrontation. This issue is without merit.

                                        G. Evidentiary Issues

        The Defendant contends that the trial court improperly admitted evidence on three occasions
during the trial. First, the Defendant contends that the trial court erred in allowing the jury to learn
that the victim was deceased. Second, the Defendant contends that the trial court erred in allowing
the State to suggest the date and circumstances of the victim’s death. Finally, the Defendant asserts
that the trial court erred in allowing the State to ask the Defendant if he was married at the time he
was involved with the victim.

         In Tennessee, the determination of whether proffered evidence is relevant in accordance with
Tennessee Rule of Evidence 402 is left to the sound discretion of the trial judge, as is the
determination of whether the probative value of evidence is substantially outweighed by the
possibility of prejudice pursuant to Tennessee Rule of Evidence 403. State v. Kennedy, 7 S.W.3d
58, 68 (Tenn. Crim. App. 1999) (citing State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App.
1995)); State v. Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993)). In making these
decisions, the trial court must consider the questions of fact that the jury will have to consider in
determining the accused’s guilt as well as other evidence that has been introduced during the course
of the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). We will only disturb
an evidentiary ruling on appeal when it appears that the trial judge arbitrarily exercised his discretion.
State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

       Initial questions of admissibility of evidence are governed by Tennessee Rules of Evidence
401 and 403. These rules require that the trial court must first determine whether the proffered
evidence is relevant. Pursuant to Rule 401, evidence is deemed relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable than it would be without the evidence.” See Forbes, 918 S.W.2d at 449. In other words,
“evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P. Cohen, et al.,
Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000).

       After the trial court finds that the proffered evidence is relevant, it then weighs the probative
value of that evidence against the risk that the evidence will unfairly prejudice the trial. State v.
James, 81 S.W.3d 751, 757 (Tenn. 2002). If the court finds that the probative value is substantially
outweighed by its prejudicial effect, the evidence may be excluded. Tenn. R. Evid. 403. “Excluding


                                                  -19-
relevant evidence under this rule is an extraordinary remedy that should be used sparingly and
persons seeking to exclude otherwise admissible and relevant evidence have a significant burden of
persuasion.” James, 81 S.W.3d at 757-58 (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 217
(Tenn. Ct. App. 1999)).

                                    1. The Victim was Deceased

        The Defendant contends that the trial court erred when it allowed the jury to learn that the
victim is deceased. The Defendant asserts that the fact that the victim was deceased was not relevant
pursuant to Tennessee Rule of Evidence 401 and, therefore, inadmissible pursuant to Tennessee Rule
of Evidence 402. Further, the Defendant asserts that the probative value of the jury learning that the
victim was deceased was substantially outweighed by the danger of unfair prejudice pursuant to
Tennessee Rule of Evidence 403. The State contends that the unavailability of the victim is relevant
and pertains to the credibility of the victim.

       Pretrial, the Defendant filed a motion requesting the court to prohibit the State from
informing the jury that the victim was now deceased. The trial court denied the motion and held
that:

        This Court finds that the State should be allowed to present proof that the victim is
        now dead, as it has a right to show why she is unavailable as a witness. Otherwise
        the jury may speculate that she failed to appear out of apathy, or fear of giving false
        testimony, which would present her statements to the police on the scene in a false
        light . . . . However, to avoid the possibility of prejudice to the defendant, the State
        will only be permitted to present this proof by way of stipulation . . . .

We conclude that the trial court did not abuse its discretion by determining that the evidence that the
victim was deceased was admissible. The unavailability of the victim is relevant because it affects
the credibility of the victim’s statements. Further, the information is relevant, as the trial court
stated, in order to avoid jury speculation as to why the victim failed to appear. In light of this, the
trial court did not abuse its discretion when it determined that the jury should learn that the victim
was deceased. Similarly, we conclude that the trial court did not abuse its discretion when it
determined that the probative value of allowing the jury to learn that the victim was deceased was
not substantially outweighed by its prejudicial effect. As the trial court noted, in order to avoid the
possibility of prejudice, the trial court only allowed the State to present a stipulation, and not proof,
of the date or circumstances of the victim’s death. Therefore, we conclude that this issue is without
merit.

                        2. Date and Circumstances of the Victim’s Death

       The Defendant next alleges that the State violated a pre-trial order that prevented the State
from discussing the circumstances of the victim’s death. The Defendant asserts that the line of
questioning used by the State inferred the date and circumstances of the victim’s death. The


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Defendant contends that the date and circumstances of the victim’s death were not relevant pursuant
to Tennessee Rule of Evidence 401 and, therefore, inadmissible pursuant to Tennessee Rule of
Evidence 402. Further, the Defendant asserts that the probative value of the date and circumstances
of the victim’s death were substantially outweighed by the danger of unfair prejudice pursuant to
Tennessee Rule of Evidence 403. The State asserts that it did not violate the pre-trial order
concerning the victim’s death and that the questioning was relevant as impeachment evidence.

       During the trial, the Defendant testified, on direct, that, on August 28, 2002, he and the
victim were not “so much as friends, but she was an employee at [his] . . . place of business . . . .”
On cross-examination, the State asked the following questions:

       Q: And even after this incident happened, you continued to be in a relationship with
       [the victim], didn’t you?
       A: Yes, ma’am.
       Q: Even up until her death in December, you continued to have a relationship with
       [the victim]?
       A: Yes ma’am.
       ...
       Q: And if we could begin on this line: “Did you see [the victim] on Monday,
       December 30th, 2002?” Do you remember your answer?
       A: Yes, I do.
       Q: What was your answer?
       A: “Yes, around 12:50 P.M. at her home.”
       Q: “Was she there alone?” Do you remember your answer?
       A: “As far as I know, yes.”

The Defendant objected to this line of questioning because he contended that it may cause the jury
to think that the Defendant was involved with the victim’s death. The trial court determined that the
questioning was valid and did not violate the pre-trial order. After thoroughly reviewing the record,
we agree with the trial court that the questioning was relevant and, pursuant to Tennessee Rules of
Evidence 401 and 402, the trial court did not abuse its discretion when it determined that the
evidence was admissible. The question was not an inquiry into or about the victim’s death but,
rather, it was about the duration of the relationship between the Defendant and the victim.
Accordingly, we conclude that this issue is without merit.

                                  3. Defendant’s Marital Status

       The Defendant contends that the trial court erred when it allowed the jury to learn that he was
married at the time of his relationship with the victim. He asserts that this evidence was not relevant
pursuant to Tennessee Rule of Evidence 401 and, therefore, inadmissible pursuant to Tennessee Rule
of Evidence 402. Further, the Defendant asserts that the probative value of his marital status was
substantially outweighed by the danger of unfair prejudice pursuant to Tennessee Rule of Evidence
403. The Defendant contends that, since he never testified that he was not married, there was no


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reason to admit this evidence. The State asserts that the Defendant’s marital status is relevant to the
Defendant’s credibility concerning his relationship with the victim.

        The scope of cross-examination is limited to matters which are material to issues raised by
the parties, the credibility of a witness, and the guilt or innocence of the accused. State v. Aucoin,
756 S.W.2d 705, 710-11 (Tenn. Crim. App. 1988) (citations omitted). As a general rule, facts and
circumstances concerning a witness’ prior marriages and affairs are not admissible in a criminal
prosecution unless it can be shown that the matters are relevant to an issue, the credibility of a
witness, or the guilt or innocence of the accused. Id. at 711; see also Gray v. State, 191 Tenn. 526,
531, 235 S.W.2d 20, 22-23 (1950).

      During the trial, and before the defendant testified, the trial court decided that the
Defendant’s marital status was relevant and held as follows:

       But regard to his marital status, I think it is relevant. There was testimony from the
       state’s witnesses that she indicated that they were in a relationship. Statements were
       made, in opening statements by [Defendant’s attorney], that he was merely her
       employer, and that was the extent of their relationship, and she was mad because she
       was getting fired from the job. So, his personal status is relevant based on all of the
       circumstances that have already been brought out in front of the jury, and so I will
       allow [the State] to inquire as to that . . . . I think the probative value would
       substantially outweigh any prejudice involved. The probative value being this man’s
       credibility as a witness in this case.

We conclude that the trial court did not abuse its discretion when it found that evidence of the
defendant’s marital status was relevant to the credibility of the Defendant. The Defendant testified
that, at the time of the incident, his relationship with the victim was such that he “wouldn’t say so
much as friends, but she was an employee at my place . . . .” The Defendant asserted that the victim
blamed this assault on him because he fired her. The Defendant’s marital status is relevant as it
pertains to his credibility regarding his relationship with the victim and the circumstances
surrounding the incident. There was evidence that the victim and the Defendant were having an
affair. The fact that the Defendant was married at the time is relevant to his credibility because he
made conflicting statements about the existence and status of his relationship with the victim.
Accordingly, we conclude that this issue is without merit.

                                        H. Prior Conviction

       The Defendant contends that the trial court erred by refusing to allow him to impeach the
victim with the victim’s 1983 conviction for “forging, uttering and publishing forged U.S. Treasury
Check in violation of Title 18 U.S.C., § 495.” The State claims that the trial court properly excluded
evidence of the conviction because it was more than ten years old. We agree with the State.




                                                 -22-
         Before trial, the Defendant asked the trial court to allow the victim’s prior conviction for
forgery be introduced into evidence. The Defendant claimed that, since the victim was unavailable
to testify and her statements to police would be introduced, this would be the only way to impeach
the victim’s credibility. The trial court did not allow the prior conviction to be introduced, holding
that:

       Well, I think that it’s so far exceeds the ten-year limitation that it’s probative value
       is minimal at best. I think that - I’ve allowed offenses that do exceed the ten-year
       limitation to be asked when it just, perhaps barely exceeds ten years - ten years that
       amounts to eleven years or if there’s a continuing pattern every other year for every
       other six months someone is getting a new conviction, and it goes all the way from
       now back through fifteen years, then I’ll allow that pattern to be demonstrated on past
       the ten years. But if this is a situation where there is one lone conviction from 1982,
       and it’s now 2003, I don’t think that is appropriate to use.

        Although specific instances of conduct may be used to impeach a witness if the conduct is
probative of the witness’s character for truthfulness or untruthfulness, the trial court must “determine
that the alleged conduct has probative value and that a reasonable factual basis exists for the
inquiry.” See Tenn. R. Evid. 608 (b). Further, Tennessee Rule of Evidence 609 provides:

       (b) Time Limit. – Evidence of a conviction under this rule is not admissible if a
       period of more than ten years has elapsed between the date of release from
       confinement and commencement of the action or prosecution . . . . Evidence of a
       conviction not qualifying under the preceding sentence is admissible if the proponent
       gives to the adverse party sufficient advance notice of intent to use such evidence to
       provide the adverse party with a fair opportunity to contest the use of such evidence
       and the court determines in the interest of justice that the probative value of the
       conviction, supported by specific facts and circumstances, substantially outweighs
       the prejudicial effect.

       Tenn. R. Evid. 609(b). A trial court’s ruling under Rule 609 will not be reversed absent an
abuse of discretion. See Johnson v. State, 596 S.W.2d 97, 104 (Tenn. Crim. App. 1979).

        We conclude that the trial court did not abuse its discretion when it found that the
introduction of this proof would have little probative value, if any, and did not substantially outweigh
the prejudicial effect. The victim’s conviction was about twenty years old and there was no pattern
of dishonesty or criminal activity in her record. Accordingly, this issue is without merit.

                                           III. Conclusion

        In accordance with the foregoing authorities and reasoning, we affirm the trial court’s
judgment, in part, reverse in part, and remand to the trial court for further proceedings consistent
with this opinion.


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       ________________________________
        ROBERT W. WEDEMEYER, JUDGE




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