        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 19, 2012

          STATE OF TENNESSEE v. MARCUS TERRELL CHURCH

                 Appeal from the Criminal Court for Davidson County
                     No. 2009A583 J. Randall Wyatt, Jr., Judge




                  No. M2011-01770-CCA-R3-CD - Filed June 10, 2013




J OSEPH M. T IPTON, P.J., concurring.

      I concur in the results reached and most of the reasoning in the majority opinion. I do
not believe, however, that this court’s standard of review of hearsay in State v. Gilley, 297
S.W.3d 739 (Tenn. Crim. App. 2008), was “repudiated” or rejected by our supreme court in
Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008). In fact, the supreme court noted that
the trial court’s ruling was error under either standard of review. Id. This is certainly not a
rejection of Gilley.

        In Pylant, the supreme court stated that “questions concerning the admissibility of
evidence rest within the sound discretion of the trial court” and that it would not interfere
absent an abuse of discretion. Id. at 870. This long-standing standard of review predates the
adoption of the Tennessee Rules of Evidence in 1990. See, e.g., State v. Gomez, 367 S.W.3d
237, 243 (Tenn. 2012); State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Unquestionably,
the starting point for the admission of evidence is its relevance. In this regard, the review for
relevance and prejudice begins with the understanding that the trial court has the discretion
to evaluate evidence and determine if it should be admitted. See, e.g., State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997).

          On the other hand, the Rules of Evidence have changed how admissibility is
considered in some areas. Once relevance is established, if the proposed evidence is hearsay
and can only be admitted into evidence through an exception to the hearsay rule, that
determination does not rely upon a court’s discretion to be admitted. First, the preliminary
or predicate facts are to be found by a preponderance of the evidence. See State v. Stamper,
863 S.W.2d 404, 406 (Tenn. 1993). Whether those facts constitute hearsay and an exception
to the hearsay rule and, therefore, are admissible as evidence are questions of law that do not
fall within the discretion of the trial court. This analysis is in essence what this court
provided in Gilley.

       To me, the analysis in Gilley does not conflict with Pylant but is another step to be
taken in determining admissibility relative to hearsay. As I stated, our supreme court in
Pylant noted that the trial court erred under both standards. If Gilley’s analysis is wrong, the
supreme court would not have used it.


                                                    ____________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




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