                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                    January 8, 2008 Session


           STATE OF TENNESSEE v. KACY DEWAYNE CANNON

                  Appeal by permission from the Court of Criminal Appeals
                            Criminal Court for Hamilton County
                           No. 243913    Rebecca J. Stern, Judge



                      No. E2005-01237-SC-R11-CD - Filed April 29, 2008



GARY R. WADE, J., concurring.

        I concur in the result reached by the majority, particularly the excellent analysis pertaining
to the confrontation clauses of the federal and state constitutions; however, I would have affirmed
that portion of the opinion by the Court of Criminal Appeals holding that the article of clothing
containing semen identified as that of the defendant was properly admitted as evidence, despite any
weakness in the chain of custody. In my view, the majority places an inordinate degree of emphasis
on the initial link in the chain and falls short of affording the trial judge adequate deference under
our limited scope of review. Because, however, other evidence offered by the State violated
constitutional principles, and the errors were not harmless beyond a reasonable doubt, I agree that
a new trial is warranted.

         Rule 901(a) of the Tennessee Rules of Evidence requires the authentication of tangible
evidence: “The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to the court to support a finding by the trier of fact
that the matter in question is what its proponent claims.” If the proffered evidence is unique, readily
identifiable, and relatively resistant to change, the foundation need only consist of testimony
confirming its relevance. It is when the evidence is susceptible to alteration that the trial court
requires a more stringent foundation, entailing a chain of custody of the item with sufficient
completeness to render it improbable that the original item has either been exchanged with another
or has been subjected to tampering or contamination. United States v. Cardenas, 864 F.2d 1528,
1531 (10th Cir. 1989).

          Federal courts describe the “chain of custody” rule as “but a variation of the principle that
. . . evidence must be authenticated prior to its admission” at trial. United States v. Howard-Arias,

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679 F.2d 363, 366 (4th Cir. 1982); see Fed. R. Evid. 901. The purpose of this threshold requirement
is to establish that the evidence offered for admission is what it purports to be. Howard-Arias, 679
F.2d at 366. The ultimate question, as stated in Cardenas, is whether the authentication testimony
was sufficiently complete so as to convince the trial court that it is improbable that the evidence has
been substituted for the original or has otherwise been subjected to alteration. Id.; United States v.
Brewer, 630 F.2d 795 (10th Cir. 1980). Precision in developing the “chain of custody” is not an
ironclad requirement, and the fact of a missing link does not prevent the admission of real evidence,
so long as there is sufficient proof that the evidence is authentic and has not been changed in any
material aspect. Howard-Arias, 679 F.2d at 366 (citations omitted). The resolution of this question
rests with the sound discretion of the trial judge. Id.

        In setting up the chain of evidence, the prosecution is not required to elicit testimony from
every custodian or every person who had an opportunity to come into contact with the evidence at
issue. United States v. Harrington, 923 F.2d 1371 (9th Cir. 1991). Instead, the burden is on the
prosecution to demonstrate that it is reasonably probable or reasonably certain that no tampering,
alteration, or substitution has occurred. United States v. Ortiz, 966 F.2d 707 (1st Cir. 1992). Once
the threshold of the admissibility has been met, any challenges to the chain of custody become
considerations for the fact-finder. United States v. Lopez, 758 F.2d 1517 (11th Cir. 1985).

         Other states besides our own tend to follow the path of the federal courts on chain of custody
issues. For example, in Commonwealth v. Cugnini, 452 A.2d 1064 (Pa. Super. Ct. 1982), the
Superior Court of Pennsylvania ruled that the Commonwealth need not produce every individual
who came into contact with an item of evidence or otherwise eliminate every hypothetical possibility
of tampering. Id. at 1065. That court held that a complete chain of custody is not required so long
as the Commonwealth’s evidence, direct and circumstantial, establishes a reasonable inference that
the identity and condition of the exhibits have remained the same from the time they were first
received until the time of trial. Id. Citing a line of other cases on the subject, the Pennsylvania court
confirmed that “[a]ny gaps in testimony regarding the chain of custody go to the weight to be given
the testimony, not to its admissibility.” Id.

        Similarly, the Supreme Court of Delaware has ruled that “[f]actors relevant in a chain of
custody analysis include ‘the nature of the article, the circumstances surrounding its preservation in
custody, and the likelihood of intermeddlers having tampered with it.’” Whitfield v. State, 524 A.2d
13, 16 (Del. 1987) (quoting United States v. Gay, 774 F.2d 368, 374 (10th Cir. 1985)). My research
suggests that this represents the majority view. In State v. Knuckles, 473 S.E.2d 131 (W.Va. 1996),
for example, the Supreme Court of West Virginia adopted the rule in United States v. Howard-Arias:

        [T]he authentication requirement of the West Virginia Rules of Evidence requires
        only that a party introducing evidence demonstrate that the evidence is in fact what
        its proponent claims. W. Va. R. Evid. 901(a). The “chain of custody” rule is simply
        a variation of this principle and requires that a prosecutor seeking to introduce
        evidence must establish a chain of custody from the time the items were taken to
        show that they are in substantially the same condition as when they were seized.


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Id. at 138 (citation omitted).

        Further, in Martin v. State, 554 A.2d 429 (Md. Ct. Spec. App. 1989), the Maryland Court of
Special Appeals followed the Pennsylvania guidelines, holding that “[w]eaknesses in the chain of
custody affect the weight of the evidence rather than its admissibility.” Id. at 433. In passing upon
the admissibility of marijuana, the Maryland court ruled that the failure of one of the individuals who
handled the evidence to testify at trial did not bar the admissibility of the illegal substance: “[The]
facts lead us to conclude that the trial court was correct in admitting the evidence despite the failure
of one person who had contact with the evidence to testify at trial.” Id. at 434.

         Here, the majority opinion properly identifies Rule 901(a) of the Tennessee Rule of Evidence
as the applicable standard and identified the applicable precedent. In State v. Scott, 33 S.W.3d 746
(Tenn. 2000), however, this Court confirmed that Rule 901 did not require the identity of tangible
evidence admitted through a chain of custody to be proved beyond all possibility of doubt or
otherwise exclude every possibility of tampering. Id. at 760. So, when the State fails to call each
and every witness within the chain of custody or the process is otherwise defective, tangible evidence
may nevertheless be admissible if, in the discretion of the trial judge, the evidence has been
adequately identified and “there was no substantial alteration . . . which would affect its validity.”
 State v. Johnson, 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984). Before the admission or exclusion
of the evidence offered, trial courts should consider its nature and all of the surrounding
circumstances, “including presentation, custody and probability of tampering or alteration.” United
States v. Cardenas, 864 F.2d at 1531; see Reed v. United States, 377 F.2d 891, 893 (10th Cir. 1967).
If these facts and circumstances reasonably establish the identity and integrity of the evidence within
the discretion of the trial court, the evidence may be admitted. Id.; Neal P. Cohen et al., Tennessee
Law of Evidence, § 901.12 (3d ed. 1995).

        I interpret the opinion of the majority as requiring more than reasonable assurance in the
chain of custody, particularly as to the first link. My colleagues express particular concern about the
failure of the State to produce a witness who could testify definitively that the pantyhose were
removed from M.N. and were properly secured until the arrival of the law enforcement authorities.
Although I fully agree with the majority’s observation that the State must “introduce sufficient
evidence to reasonably establish a connection between the pantyhose and M.N.,” I believe that may
be accomplished through circumstantial evidence.

        Indeed, no one testified that the pantyhose were removed from the victim and secured until
the arrival of the authorities.1 M.N. was dressed only in a hospital gown when the police arrived.


         1
            Detective Dudley testified that M.N. used the word “underwear” in her statement instead of the word
“pantyhose.” The majority raises this point as a weakness in the chain of custody of the pantyhose; however, nowhere
does the record suggest that there is any confusion. The list of exhibits included pantyhose. The Inventory of Property
included pantyhose noted as “Added” with Detective Dudley’s name following. T he Evidentiary Chain of Custody
Record mentions pantyhose. Although the lab analysis sheet is labeled “Underwear/Panties” the description includes
“Silk Reflections, AB” and the drawing is of a pantyhose-like garment with long legs, indicating that it is typical in the
                                                                                                           (continued...)

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The emergency treatment by the attending physicians had been completed by the time Ardyce
Redolfo, a specially trained nurse employed by the Sexual Assault Crisis Center, reached the
hospital. Further, the medical records make no mention of the victim’s clothing. M.N. was,
however, the subject of the examination and confined to a room. Medical records confirmed that
she was treated in the emergency room for injuries from the sexual assault. Nurse Redolfo, who
conducted an independent examination, found bruises, abrasions, and a rectal tear and took blood
samples. She testified that “[the pantyhose] were there [in the room] with her [other] clothes and
no one else had been in the room except her . . . .” She recalled seeing a plastic bag containing the
clothes and specifically determined that the pantyhose were wet in the bilateral groin area, an area
which corresponded to the location of the wetness on the body of M.N. Dr. Brian Ingalls, the
emergency room physician who treated M.N., described the protocol established by the hospital as
a means of properly securing potential tangible evidence. A final step in the procedure included
storing clothing in a plastic bag. While Dr. Ingalls was unaware of whether hospital personnel had
deviated from the policy in this instance, that a standard procedure existed and the only testimony
offered indicated compliance with that procedure tended to support the authenticity of the evidence.
I can find no suggestion in the record of tampering of the pantyhose or any confusion about the item
with any other article of clothing. There is no question about whether the evidence was properly
preserved for analysis after the authorities took control of the pantyhose and until test results were
presented at trial. Forensic experts from the TBI and Orchid Cellmark, an independent laboratory,
confirmed that.

         Thus, the examining physician, a nurse, and the detective conducting the investigation
testified to circumstances that could have logically led to a conclusion that the pantyhose offered at
trial belonged to M.N. and that she was wearing them at the time of the assault. The State
established that the area of wetness in the pantyhose matched that on M.N.’s body. As stated, it is
sufficient if the facts, whether direct or circumstantial, establish a reasonable assurance of the
identity of the tangible evidence. Ritter v. State, 462 S.W.2d 247 (Tenn. Crim. App. 1970).
Moreover, it is improbable that the pantyhose were exchanged with another or subjected to
alteration. See United States v. Cardenas 864 F.2d at 1531; McCormick, Handbook on the Law of
Evidence § 212 (3d ed. E. Cleary, ed. 1984). As indicated, the purpose of the chain of custody
requirement is to demonstrate that there has been no tampering, loss, substitution, or mistake with
respect to the evidence. Scott, 33 S.W.3d at 760; see State v. Braden, 867 S.W.2d 750, 759 (Tenn.
Crim. App. 1993). It is only when the trial court has applied an incorrect legal standard or reached
a decision which is against logic or reasoning that the appellate courts may intervene under the abuse
of discretion standard and exclude the evidence. Scott, 33 S.W.3d at 752; State v. Holbrooks, 983
S.W.2d 697, 701 (Tenn. Crim. App. 1998). When the trial court ruled that the evidence had met the
threshold requirement of reasonable assurance, the defendant was entitled to present a vigorous

         1
            (...continued)
lab setting to equate pantyhose with the generic term “underwear.” In our review of the various lab reports, the
descriptions mention pantyhose, but nowhere did we find an indication of a separate undergarment other than pantyhose.
Thus, it is a reasonable inference that M.N.’s use of the word “underwear,” as reported by Detective Dudley, was a
reference to pantyhose–rather than to some other undergarment.



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cross-examination, testing the propriety of the chain and the credibility and competence of the
witnesses who supported the admission of the evidence. The weight to be given the proof properly
became a question for the jury.

        I concur with the grant of a new trial, however, because the defendant was denied the right
of confrontation as guaranteed by the United States and Tennessee Constitution. U.S. Const. amend.
VI; Tenn. Const. art. I, § 9. The majority opinion provides an excellent summary of the applicable
law, carefully reciting the developments in the law since the landmark decision in Crawford v.
Washington, 541 U.S. 36 (2004). The first police officer to respond to the 911 call, Officer Damany
Norwood, was permitted to testify to the contents of his initial interview with M.N. even though her
statements were testimonial in nature. Absent any protection of the constitutional guarantee to the
confrontation of the witness, her description of her assailant and her recitation of the nature of the
attack should have been excluded. Davis v. Washington, 547 U.S. 813, 821-22 (2006). Similarly,
Detective Charles Dudley questioned M.N. in the emergency room after she had been examined by
medical personnel. The aim of the interrogation was to identify the rapist and the statements by the
victim qualified as testimonial in nature. Because the defendant was denied the right to confront the
witness who actually offered the testimony, the detective’s testimony was inadmissible. Id. Finally,
Nurse Redolfo, who worked with the law enforcement authorities in the investigation, questioned
M.N. at length about the nature of the attack and a description of the rapist. She read the statement
of M.N., clearly testimonial, to the jury. In essence, the testimony of Redolfo was substituted for that
of M.N. and served as important corroboration of the DNA test results. That violated the right of
confrontation under Crawford and its progeny. See Davis, 547 U.S. at 821-22. Because the jury is
entitled to consider the weight and value of the DNA analysis in the context of all of the other
evidence offered at trial, much of which should have been excluded, I could not hold that its
admission in violation of the right of confrontation was harmless beyond a reasonable doubt, as did
the Court of Criminal Appeals. See Chapman v. California, 386 U.S. 18 (1967); State v. Rice, 184
S.W.3d 646, 670 (Tenn. 2006); State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993).

        Accordingly, I join with the majority of the Court in the reversal of the conviction and the
grant of a new trial.




                                               ___________________________________
                                               GARY R. WADE, JUSTICE




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