         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 7, 2006

                    STATE OF TENNESSEE v. JUDGE BROOKS

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 03-08238   Joseph B. Dailey, Judge



                    No. W2004-02834-CCA-R3-CD - Filed August 31, 2006


A Shelby County Criminal Court jury convicted the appellant, Judge Brooks, of first degree
premeditated murder, and the trial court sentenced him to life imprisonment. In this appeal, the
appellant claims (1) that the trial court improperly admitted the victim’s prior statements into
evidence under the hearsay rule’s forfeiture by wrongdoing exception, Tennessee Rule of Evidence
804(b)(6), and in violation of the Confrontation Clause; (2) that the trial court erred by admitting
evidence of the appellant’s prior assault on the victim pursuant to Tennessee Rule of Evidence 404(b);
and (3) that the evidence is insufficient to support the conviction. While we conclude that the trial
court improperly admitted hearsay into evidence, we conclude that the error was harmless and affirm
the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined.
JOSEPH M. TIPTON , J., filed a concurring and dissenting opinion.

Garland Erguden and Robert Wilson Jones (on appeal) and Tim Albers and Donna Armstard (at trial),
Memphis, Tennessee, for the appellant, Judge Brooks.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Theresa McCusker, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

       The appellant beat his girlfriend, Deborah Chance, to death on July 20 or 21, 2003. Harlie
E. Smith, the victim’s uncle, testified that he lived in Springfield, Tennessee and that the victim
telephoned him from Memphis on Saturday, July 19, 2003. The victim told Smith that she and the
appellant were having a lot of problems and that she did not know how to get out of the relationship
or what to do. She said that the appellant had been accusing her of “running around with other men,”
and Smith told her to leave the appellant and come to Springfield. About 6:00 p.m. the next day, the
victim telephoned Smith again. She sounded upset and told Smith that the appellant had been beating
her all day, that she was afraid of him, and that she wanted to get away. Smith offered to drive to
Memphis to pick up the victim, but the victim said she was going to try to sneak away and come to
Springfield. Smith heard a man’s voice in the background. The man said that the victim was not
going anywhere, that she was his bitch and his whore, and that he was going to kill her. Smith had
never met the appellant before, but the victim told Smith that the man was the appellant. The
appellant wanted to speak with Smith, but Smith refused to talk to him. Smith said that in May 2003,
the victim had telephoned him and told him that she was coming to Springfield because the appellant
had beaten her. He said that when the victim arrived at his home, her eyes were bruised, the side of
her head was swollen, she had bruises all over her arms, and some of her hair had been pulled out.
The victim told Smith that the appellant had caused her injuries.

        On cross-examination, Smith testified that while the victim visited him in May 2003, she
drank beer but was not drunk. The victim had a good job in Memphis and wanted to return to it.
During Smith’s July 19 telephone conversation with the victim, the victim did not sound drunk and
said that she loved the appellant but needed to get away from him. During Smith’s July 20 telephone
conversation with the victim, the victim asked him to telephone the police and send them to Texas
Street. The victim told Smith that she would “try to have [the appellant] there because she had a
warrant on him.” Smith did not call the police but telephoned the victim’s ex-boyfriend, who was
familiar with the Memphis area, and asked him to call the police.

        Officer Jeremy Wells of the Memphis Police Department testified that he was on patrol on
July 21, 2003, and was dispatched to an apartment at 1290 Texas Street about 3:00 a.m. When he
arrived, the appellant flagged him down and said that he had telephoned the police. The appellant
was hysterical and told Officer Wells that his girlfriend was inside and might be dead. The appellant
told the officer, “We got to fighting earlier, and I think I might have killed her.” When backup
officers arrived, Officer Wells patted down the appellant, handcuffed him, and put him in a patrol car.
Officer Wells and some other officers went into the apartment, and Officer Wells saw a large amount
of blood on the living room floor and walls. The appellant had told the officers that the victim was
in the bathtub, and the officers found her dead there. Officer Wells noticed pieces of glass all over
the apartment and called for an ambulance. On cross-examination, he testified that the appellant fully
cooperated with him and was anxious for him to go into the apartment. He did not remember if he
smelled alcohol on the appellant.

        Memphis Police Officer David Galloway testified that he was dispatched to the scene. He saw
blood spatter on the walls and blood on the living room floor, and the victim was lying face-down in
the bathtub. He did not remember water being in the tub or the victim being wet. Officer Galloway
photographed the scene and took measurements. He saw broken glass on the living room floor, a
bloody pillow near the bedroom doorway, a bloody pillow in the kitchen doorway, a broken lamp in
the kitchen trash can, and a bloody t-shirt on the living room couch. On cross-examination, Officer
Galloway did not recall if beer bottles were in the trash can.


                                                 -2-
        Melissa Horner of the Shelby County Criminal Court Clerk’s Office testified that on May 16,
2003, the appellant had been charged with assaulting the victim. According to the victim’s affidavit
of complaint, the appellant hit the victim’s face with his fist on May 10, 2003. He also stomped on
her face and chest. The appellant’s niece witnessed the assault and told the appellant to move away
from the victim. Upon seeing a police car, the appellant fled the scene. In the affidavit, the victim
stated that she received black eyes, a “busted” lip, knots to her face and head, and bruises on her body.
The victim stated, “Due to this incident and prior attacks of violence, I [desire] to have no further
contact with him.”

       Shereka Wright, an investigator with the Shelby County District Attorney’s Domestic
Violence Unit, testified that she took pictures of the victim on May 15, 2003. The victim was
nervous, scared, and looked like she was about to cry.

         Latisa Bridges, the appellant’s niece, testified that the appellant was the victim’s boyfriend
and that the appellant and the victim lived together. One night in May 2003, the victim drove to
Bridges’ home. Bridges and the victim were going to a nightclub, but the victim told Bridges that she
needed to give the appellant some keys. The victim and Bridges drove to Texas Street, and the
appellant was standing outside in the rain. The victim got out of the car and gave him the keys, and
the appellant walked away. The victim walked up behind the appellant and hit him on the back of
the head. The appellant turned around and hit the victim with his open hand. The victim fought back
and spit blood on him. The appellant hit the victim with an open hand again, and the victim scratched
and fought him. The appellant kept telling the victim to leave, but the victim “proceeded to . . . edge
it on more.” The appellant hit the victim with his fist, knocked her down, and kicked her. Bridges
got out of the car, grabbed the appellant, and said, “Don’t do that.” The appellant said, “Well get her
and go. Tell her to leave me alone.” Bridges put the victim in the car. She stated that a neighbor
must have telephoned the police because the police arrived at the scene. However, the appellant had
gone into the apartment and would not answer the door. Bridges stated that the victim had a “busted”
lip, black eyes, and a knot over her right eye.

        On cross-examination, Bridges testified that when the victim arrived at Bridges’ home, the
victim appeared fine but was drunk. After the victim gave the appellant the keys, the victim hit the
appellant first, and the appellant smacked the victim’s face. The appellant never threatened Bridges.
When the police arrived at the Texas Street apartment, the victim told them that she did not want to
press charges against the appellant because she loved him. About one or two months before the May
2003 assault, the appellant had left the victim and moved in with Bridges. During that time, the
victim called the appellant’s cellular telephone and Bridges’ home constantly.

        Dr. O.C. Smith, the Shelby County Medical Examiner at the time of the victim’s death,
performed the victim’s autopsy. He testified that the victim had bruises of varying ages on her arms
and legs and recent bruises on her forehead, neck, and right wrist. Older bruises were mainly on the
victim’s arms and legs, and some of the bruises were more than forty-eight hours old. The victim also
had patterned scrapes on her skin. One of the scrapes was under her left eyebrow, and another scrape
was on the left side of her neck. Smith believed that an instrument, such as a knife with a serrated


                                                  -3-
edge, could have caused the scrapes. The victim had lacerations, which could have been caused by
a fist, on the bridge of her nose and on either side of her nostrils. The victim’s cheek and lip were
bruised, the inside of her lip was bruised, and the inside of her mouth was torn. The victim’s eyes
were black, which could have resulted from blood pooling around the eyes and did not necessarily
indicate that her eyes had been injured. The victim had a superficial “flick,” which is a small wound
made by the tip of a knife, below her left ear and a laceration behind that ear. Blood had collected
under the victim’s scalp, and she had bleeding to the surfaces of her brain. The victim died of brain
swelling, and the pattern of injuries to the back of the victim’s head indicated that she may have been
struck multiple times with a shoe.

         Dr. Smith testified that the victim was five feet, four inches tall and weighed one hundred
fifty-six pounds. She had a blood alcohol content (BAC) of .244, and a person becomes under the
influence of alcohol with a BAC of .05. The victim’s clothes and head were wet, and water in her
stomach indicated that she may have been underwater for some time. The victim suffered blunt
trauma to the head, which injured the brain, and Dr. Smith concluded that a fall into the bathtub
probably did not cause her head injuries or death.

        On cross-examination, Dr. Smith testified that the chest, arms, hands, and legs are areas that
a person commonly bruises during daily living. He said that some of the victim’s bruises could have
resulted from her falling down and that falling on a knife could have caused the scrapes and flick on
her body. Dr. Smith classified the victim’s BAC as “high,” impairing her coordination and causing
her to fall down. He said that the victim had cirrhosis of the liver and that people with liver damage
are more likely to bleed and bruise. On redirect examination, Dr. Smith stated that the patterns of the
victim’s head injuries were consistent with an assault.

        Jessie Mae Anderson testified for the appellant that she worked at the J&J Lounge in
Memphis. The appellant and a woman came into the bar about 4:00 p.m. on Sunday, July 20, 2003.
The appellant and the woman each drank a beer, but they were not drunk. The woman did not seem
to have a problem with the appellant, and they did not fight. The couple left the bar between 7:00 and
9:00 p.m. On cross-examination, the State showed Anderson a photograph of the victim, and
Anderson testified that the victim looked like the woman in the bar.

        Mike Triplett of the general sessions criminal court clerk’s office testified that the victim
signed a petition for order of protection against the appellant on May 15, 2003. In the petition, the
victim alleged that on May 10, 2003, the appellant hit her face with his fist and stomped on her face
and chest. As a result of the petition, an order of protection was issued. However, the order of
protection was dismissed on June 2, 2003, because the victim failed to appear in court and prosecute
the case. On cross-examination, Triplett testified that on May 16, 2003, a warrant was issued for the
appellant for assaulting the victim. According to the warrant, it was executed on July 22, 2003.

        The appellant chose not to testify. Betty Zabt, the victim’s aunt, testified on rebuttal that she
had met the appellant previously, had talked with him, and would recognize his voice. In May 2003,
the victim visited Zabt for a few days in Springfield, Tennessee. Clumps of the victim’s hair were


                                                  -4-
missing, the victim’s eyes were black, and she was bruised. Zabt heard the victim talk on the
telephone with the appellant and heard the appellant say, “You bitch, I will kill you.” On cross-
examination, Zabt acknowledged that the appellant’s threat frightened her and that she asked the
victim not to return to Memphis. She told the victim that the appellant was going to kill her, but the
victim wanted to return to Memphis because she did not want to lose her job. The jury convicted the
appellant of first degree premeditated murder.

                                              II. Analysis

                                     A. Victim’s Prior Statements

        The appellant claims that the trial court improperly admitted into evidence statements the
victim made to Harlie Smith in May 2003 about the source of her injuries and the victim’s July 20
and 21 telephone conversations with Smith; the victim’s May 2003 affidavit of complaint; and Latisa
Bridges’ testimony about the appellant’s assaulting the victim in May 2003. He contends that all of
the evidence was hearsay and inadmissible under the forfeiture by wrongdoing exception to the
hearsay rule, Tennessee Rule of Evidence 804(b)(6). He also contends, without any discussion or
analysis, that the evidence violated his constitutional right to confrontation. The State claims that,
given the May 2003 assault case pending against the appellant at the time of the victim’s death, the
proof established that the appellant acted to procure the victim’s unavailability as a witness against
him and, therefore, that the victim’s statements were admissible under the exception to the hearsay
rule. The State also contends that the appellant has waived his claim regarding a Confrontation
Clause violation because he murdered the victim. We agree with the appellant that the forfeiture by
wrongdoing exception to the hearsay rule does not apply in this case. However, we conclude that the
trial court’s error in admitting the hearsay evidence was harmless. As to the appellant’s claim that
his confrontation rights were violated, we agree with the State that the appellant has waived this issue
because he procured the victim’s unavailability.

                                               1. Hearsay

         Before the State called its first witness, it told the trial court that the victim’s uncle, Harlie
Smith, would testify regarding his July 20 and 21 telephone conversations with the victim. Later, in
a jury-out hearing, Smith testified about the conversations, and the defense argued that much of
Smith’s testimony was inadmissible hearsay. The State claimed that the evidence was admissible
under the forfeiture by wrongdoing exception to the hearsay rule. The defense argued that the
exception did not apply in this case because the State failed to present any proof that the appellant
killed the victim in order to prevent her from testifying against him in the assault case. The trial court
agreed with the State, stating that

                it would seem to be to me totally illogical, from a public-policy
                standpoint, to allow someone who procures the death of a witness to
                then benefit from the absence of that witness’s testimony and whether
                one was able to demonstrate that that was the specific reason for


                                                   -5-
               causing the death or not. And I just can’t - and there’s nothing of that
               sort that’s mentioned in the commission comments at all. It simply
               says Rule 804(b)(6) adds a new hearsay exception.

         Hearsay is defined as “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). Generally, hearsay statements are inadmissible unless they fall under one of the recognized
exceptions to the hearsay rule. Tenn. R. Evid. 802. The “forfeiture by wrongdoing” exception allows
the admission of a hearsay statement “against a party that has engaged in wrongdoing that was
intended to and did procure the unavailability of the declarant as a witness.” Tenn. R. Evid. 804(b)(6)
(emphasis added). “Even intentional misconduct, such as killing a witness, does not qualify unless
done for the purpose of procuring the witness’s unavailability.” Neil P. Cohen, et al., Tennessee Law
of Evidence § 8.39[2][c] (5th ed. 2005). In determining whether hearsay is admissible under the rule,
the trial court must conduct a jury-out hearing and “find that a preponderance of the evidence
establishes 1) that the defendant was involved in or responsible for procuring the unavailability of the
declarant; and 2) that a defendant’s actions were intended, at least in part, to procure the absence of
the declarant.” State v. Ivy, 188 S.W.3d 132, 147 (Tenn. 2006).

        First, we must determine whether the statements at issue were hearsay. Smith’s testimony
about what the victim told him during their telephone conversations, the victim’s statements to him
about the May assault, and the victim’s statements in her affidavit of complaint were hearsay pursuant
to Tennessee Rule of Evidence 801(c). The pertinent part of Latisa Bridges’ testimony, however, was
not hearsay. Bridges’ testimony focused on the May 2003 fight she witnessed between the victim and
the appellant. She did not testify as to any statements made by the victim to the appellant during the
altercation.

        Next, we must determine whether any of the hearsay evidence was admissible under the
forfeiture by wrongdoing exception. Our supreme court’s recent analysis in Ivy is helpful. Like the
appellant in the present case, David Ivy was frequently violent toward his girlfriend, LaKisha Thomas.
In May 2001, Thomas called the police to her apartment and told the responding officer that Ivy had
threatened to kill her because she wanted to end their relationship. Id. at 139. On June 6, 2001,
another officer responded to a call and found the victim with a cut on her head, bruises on her chest,
and a black eye. Id. Thomas told the officer that Ivy had attacked her and had threatened to kill her.
Id. After the second incident, Thomas’ cousins drove her to the police department, where she swore
out a warrant against Ivy for assault. Id. En route to and from the criminal justice center, Thomas
and her cousins saw Ivy following them. Id. at 140. After swearing out the warrant and leaving the
justice center, Thomas and her cousins stopped at a liquor store, where Ivy approached Thomas and
threatened to kill her if she “‘put the police in his business.’” Id. Two days later, Ivy shot Thomas
to death. Id. At trial, both of the officers who had responded to Thomas’ calls testified that Thomas
told them Ivy had threatened to kill her, and one of the officers testified about Thomas’ physical
injuries. Id. at 139. Thomas’ relatives also testified that they saw Ivy pull Thomas’ hair, that Thomas
told them Ivy had kicked in her door and had broken her furniture, and that Thomas told them Ivy
would allow her to leave her apartment for only one hour each day. Id. The trial court allowed the


                                                  -6-
hearsay testimony under Rule 804(b)(6). Id. at 146. The jury convicted Ivy of first degree
premeditated murder and sentenced him to death.

         On appeal, this court held that the proof did not establish by a preponderance of the evidence
that Ivy acted with the intent to procure Thomas’ unavailability as a witness. See State v. David Ivy,
No. W2003-00786-CCA-R3-DD, 2004 Tenn. Crim. App. LEXIS 1154, at *40 (Jackson, Dec. 30,
2004). In reaching this conclusion, our court noted that the warrant for Ivy’s arrest was not executed
until after Thomas’ death and that there was no evidence Ivy was even aware that a warrant had been
issued. Id. Our supreme court, however, agreed with the trial court, stating,

               The preponderance of the evidence supported the trial court’s finding
               that Ivy killed Thomas to prevent her from contacting police about his
               aggravated assault on June 6, 2001. Ivy followed Thomas as she drove
               to and from the Criminal Justice Center in Memphis, Tennessee, to
               swear out a warrant against him that was never served. He killed her
               only two days later. Given these facts, we disagree with the Court of
               Criminals Appeals’ view that Rule 804(b)(6) required that Ivy had to
               know about the issuance of an arrest warrant for the aggravated
               assault; moreover, there was no requirement that Ivy’s sole intention
               had to be preventing Thomas from testifying against him in a
               proceeding based on the aggravated assault.

Ivy, 188 S.W.3d at 147.

        Turning to the instant case, we conclude that the preponderance of the evidence does not
support a finding that the appellant killed the victim for the purpose of procuring her unavailability
as a witness. The facts in the present case are significantly different from those in Ivy. Ivy followed
Thomas to and from the police department and threatened to kill her if she “put the police in his
business.” The evidence in the present case, however, does not show that the appellant knew the
victim had filed an affidavit of complaint or that a warrant had been issued against him. Although
the police arrived at the appellant’s apartment soon after the May 2003 assault, the victim told the
officers that she did not want to press charges against him. Moreover, although the warrant was
issued on May 16, 2003, it was not executed until July 22, 2003, one day after the victim’s death.
Finally, while Ivy killed the victim two days after Thomas swore out the warrant, the appellant and
the victim in the present case continued to live together, and the appellant killed the victim more than
two months after the warrant was issued. Given the facts of this case, we conclude that the victim’s
statements to her uncle and in her affidavit were not admissible under the forfeiture by wrongdoing
exception.

        Nevertheless, we hold that the trial court’s error in admitting the hearsay evidence was
harmless. Latisa Bridges testified as an eyewitness about the appellant’s May 2003 assault on the
victim, and Betty Zabt testified that she heard the appellant threaten to kill the victim. Although
Zabt’s testimony was hearsay, it was admissible pursuant to Tennessee Rule of Evidence 803(1.2) as


                                                  -7-
an admission by a party-opponent.1 Given the testimony of these two witnesses, Dr. Smith’s
testimony about the victim’s injuries, the photographs depicting the victim’s extensive injuries, and
the appellant’s admitting to Officer Wells that he fought with and possibly killed the victim, we
conclude that the trial court’s error did not affect the outcome of this case. See Tenn. R. Crim. P.
52(a); Tenn. R. App. P. 36(b).

                                            2. Confrontation Clause

        The Sixth Amendment to the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Likewise, Article I, Section 9 of the Tennessee Constitution provides that “in all criminal
prosecutions, the accused hath the right to . . . meet the witnesses face to face.” In Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme Court examined the right to
confrontation. The court summarized the factual basis of the case by saying, “Petitioner . . . stabbed
a man who allegedly tried to rape his wife, Sylvia. At his trial, the State played for the jury Sylvia’s
tape-recorded statement to the police describing the stabbing, even though he had no opportunity for
cross-examination.” 541 U.S. at 38, 124 S. Ct. at 1356-57. The court held that “[w]here testimonial
evidence is at issue, . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id. at 68, 127 S. Ct. at 1374.

        In addition to this holding, the Supreme Court noted in Crawford that “[t]he rule of forfeiture
by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable
grounds.” Id. at 62, 127 S. Ct. at 1370. In other words, “if a witness is absent by [the defendant’s]
own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place
of that which he has kept away. . . . The rule has its foundation in the maxim that no one shall be
permitted to take advantage of his own wrong.” Reynolds v. United States, 98 U.S. 145, 158-59
(1879). Arguably, the rule of forfeiture by wrongdoing should require a showing that the defendant
killed the witness with the specific intent to prevent the witness from testifying, just as the forfeiture
by wrongdoing exception to the hearsay rule requires. However, the rule of forfeiture by wrongdoing
with respect to the Confrontation Clause must be distinguished from the forfeiture by wrongdoing
exception to the hearsay rule discussed previously.

         The Sixth Circuit Court of Appeals made this distinction in United States v. Garcia-Meza, 403
F.3d 364 (6th Cir. 2005). In that case, the defendant became angry and killed his wife after she
danced with another man at a party. Id. at 366-67. Five months before her death, police officers had
responded to an assault call and had found the victim beaten, frightened, and panicked. Id. at 367.
The victim told the officers that the defendant had punched her repeatedly and had threatened to kill
her. Id. Evidence about the prior assault was admitted at trial, and, on appeal, the defendant argued
that although the victim’s statements about the assault were excited utterances, the statements were



          1
           W e note that although the appellant’s telephone threat occurred two months before the killing, “remoteness
 affects only the weight, not the admissibility of the evidence.” State v. Smith, 868 S.W .2d 561, 575 (Tenn. 1993).

                                                         -8-
testimonial and violated his right to confrontation under Crawford. However, the Sixth Circuit held
that the appellant was not entitled to relief under the Confrontation Clause, stating,

               We need not decide today . . . whether a victim’s excited utterance
               made to an investigating police officer is testimonial, for the
               Defendant has forfeited his right to confront [the victim] because his
               wrongdoing is responsible for her unavailability. As noted above, in
               this case, defendant admitted that he killed [the victim], thereby
               procuring her unavailability to testify. The dispute at trial concerned
               not whether he was the one to stab her, but whether he acted with
               premeditation to support a conviction of first degree murder. Under
               these circumstances, there is no doubt that the Defendant is
               responsible for [the victim’s] unavailability. Accordingly, he has
               forfeited his right to confront her.

Id. at 370 (citations omitted). Moreover, the Sixth Circuit specifically rejected the defendant’s claim
that the rule of forfeiture by wrongdoing required a showing that the defendant killed the victim with
the specific intent to prevent her from testifying. As the Sixth Circuit explained,

               Though the Federal Rules of Evidence may contain such a
               requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth
               Amendment does not depend on, in the recent words of the Supreme
               Court, “the vagaries of the Rules of Evidence.” Crawford, 124 S. Ct.
               at 1370. The Supreme Court’s recent affirmation of the “essentially
               equitable grounds” for the rule of forfeiture strongly suggests that the
               rule’s applicability does not hinge on the wrongdoer’s motive. The
               Defendant, regardless of whether he intended to prevent the witness
               from testifying against him or not, would benefit through his own
               wrongdoing if such a witness’s statements could not be used against
               him, which the rule of forfeiture, based on principles of equity, does
               not permit.

Id. at 370-71. Other courts have also concluded that the forfeiture by wrongdoing exception to the
Confrontation Clause does not require a showing that the defendant procured the witness’s
unavailability for the purpose of preventing the witness from testifying. People v. Bauder, 712
N.W.2d 506, 514-15 (Mich. App. 2005); see United States v. Mayhew, 380 F. Supp. 2d 961, 966-97
(S.D. Ohio 2004); People v. Moore, 117 P.3d 1, 5 (Colo. Ct. App. 2004); State v. Meeks, 88 P.3d
789, 794 (Kan. 2004); Commonwealth v. Mustafa Salaam, No. CR03-4624, 2004 Va. Cir. LEXIS
289, at **17-20 (Aug. 25, 2005).

       Turning to the instant case, we initially note that most of the statements at issue are
nontestimonial because the victim made them informally to family members. See State v. Maclin,
183 S.W.3d 335, 347 n.13 (Tenn. 2005). Therefore, they are not subject to the Confrontation Clause.


                                                 -9-
See Davis v. Washington, ___ U.S. ___, ___, 126 S. Ct. 2266, 2273-76 (2006). However, the
victim’s affidavit of complaint, which she made under oath before a judicial commissioner in general
sessions court, is testimonial. Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364. Nevertheless, we are
persuaded by the Sixth Circuit’s reasoning in Garcia-Meza and conclude that, unlike the forfeiture
by wrongdoing exception to the hearsay rule, a defendant’s intent is irrelevant with respect to the
forfeiture by wrongdoing exception to the Confrontation Clause when the defendant does not dispute
that he procured the victim’s unavailability. As this court has stated, “[t]he right of confrontation is
not absolute and must occasionally give way to considerations of public policy and necessities of the
case.” State v. Kennedy, 7 S.W.3d 58, 65 (Tenn. Crim. App. 1999); see also Bourjaily v. United
States, 483 U.S. 171, 182, 107 S. Ct. 2775, 2782 (1987) (stating that “[w]hile a literal interpretation
of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is
unavailable, this Court has rejected that view as ‘unintended and too extreme’” (quoting Ohio v.
Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537 (1980))). We believe that the unique circumstances
of this case require such considerations and conclude that the appellant has forfeited any
Confrontation Clause claim regarding the victim’s affidavit.

                                          B. 404(b) Evidence

        The appellant also claims that evidence of his May 2003 assault on the victim was
inadmissible pursuant to Tennessee Rule of Evidence 404(b) and that the probative value of the
evidence was outweighed by the danger of unfair prejudice. The State claims that evidence about the
appellant’s prior assault on the victim was admissible to show the appellant’s intent to harm the
victim and to rebut any claim that the appellant accidentally killed her. We conclude that the trial
court properly admitted the evidence.

        In a jury-out hearing, the State argued that evidence of the appellant’s May 2003 assault on
the victim was admissible to show the appellant’s intent and motive to hurt her on July 20.
Specifically, the State argued that it should be allowed to present evidence of the prior assault through
Latisa Bridges’ testimony and the victim’s affidavit of complaint. The appellant argued that the
prejudicial effect of the evidence outweighed its probative value. The trial court agreed with the
State, concluding that the evidence was admissible “to rebut any suggestion of mistake or accident
or intent.” The trial court also held that the evidence was “highly probative.” During jury
instructions, the trial court explained that the jury could consider evidence of the appellant’s prior bad
act only for the limited purpose of determining his identity, motive, or intent.

        Tennessee Rule of Evidence 404 provides,

                        (b) Other Crimes, Wrongs, or Acts.- Evidence of other crimes,
                wrongs, or acts is not admissible to prove the character of a person in
                order to show action in conformity with the character trait. It may,
                however, be admissible for other purposes. The conditions which
                must be satisfied before allowing such evidence are:



                                                  -10-
                        (1) The court upon request must hold a hearing outside the
                jury’s presence;

                        (2) The court must determine that a material issue exists other
                than conduct conforming with a character trait and must upon request
                state on the record the material issue, the ruling, and the reasons for
                admitting the evidence;

                        (3) The court must find proof of the other crime, wrong, or act
                to be clear and convincing; and

                       (4) The court must exclude the evidence if its probative value
                is outweighed by the danger of unfair prejudice.

See also State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). A trial court’s decision regarding the
admission of Rule 404(b) evidence will be reviewed under an abuse of discretion standard; however,
“the decision of the trial court should be afforded no deference unless there has been substantial
compliance with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997). Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be
relevant to an issue other than the accused’s character. Such exceptional cases include identity, intent,
motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867 S.W.2d 736, 740
(Tenn. Crim. App. 1992). In making its decision regarding the admissibility of the testimony, the trial
court must first determine if the offered testimony is relevant to prove something other than the
appellant’s character. If the evidence is relevant, then, upon request, the court will proceed to a Rule
404(b) hearing.

        In Smith, 868 S.W.2d at 574, our supreme court held that prior acts of violence and prior
threats against a victim “are admissible under Rule 404(b) because the evidence is relevant to show
the defendant’s hostility toward the victim, malice, intent, and a settled purpose to harm the victim.”
See also State v. Turnbill, 640 S.W.2d 40, 47 (Tenn. Crim. App. 1982) (providing that the “prior
relations between the victim and the appellant were relevant matters for the jury’s consideration on
the question of the appellant’s intent”). In the instant case, the State had to prove that the appellant
intended to kill the victim. See Tenn. Code Ann. § 39-13-202(a)(1). The trial court determined that
the appellant’s prior assault was relevant to establish his intent to kill her and properly instructed the
jurors as to how they should consider this evidence. The trial court also determined that the evidence
was “highly probative,” demonstrating that it believed the probative value of the evidence was not
outweighed by the danger of unfair prejudice. We conclude that the trial court did not abuse its
discretion by allowing Bridges to testify about the appellant’s prior assault on the victim. Although
we concluded previously that the victim’s affidavit of complaint was inadmissible hearsay, it was
cumulative evidence, and any error in admitting the affidavit was harmless.




                                                  -11-
                                    C. Sufficiency of the Evidence

        Finally, the appellant claims that the evidence is insufficient to support the conviction, arguing
that there is no evidence of premeditation. In support of his argument, he notes that the victim was
“falling down drunk,” that she was found fully clothed in a bathtub, that a witness testified the victim
and the appellant were not quarreling on the afternoon before her death, and that the bruises on her
body “were of a pattern commonly seen in chronic alcoholics.” The State contends that the evidence
is sufficient for a rational jury to conclude that the appellant premeditated killing the victim. We
agree with the State.

        When an appellant challenges the sufficiency of the convicting evidence, the standard for
review is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). On
appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or
legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Questions concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the jury as trier of fact.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the
evidence. Id. Because a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

      The appellant was convicted of premeditated first degree murder, which is defined as “the
premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Tennessee
Code Annotated section 39-13-202(d) defines “premeditation” as

                an act done after the exercise of reflection and judgment.
                “Premeditation” means that the intent to kill must have been formed
                prior to the act itself. It is not necessary that the purpose to kill
                pre-exist in the mind of the accused for any definite period of time.
                The mental state of the accused at the time the accused allegedly
                decided to kill must be carefully considered in order to determine
                whether the accused was sufficiently free from excitement and passion
                as to be capable of premeditation.

        The element of premeditation is a question of fact for the jury. State v. Davidson, 121 S.W.3d
600, 614 (Tenn. 2003). Although the jury may not engage in speculation, it may infer premeditation
from the manner and circumstances surrounding the killing. Bland, 958 S.W.2d at 660. Specifically,
the following factors have been used to support a jury’s inference of premeditation: (1) the appellant’s
prior relationship to the victim which might suggest a motive for the killing; (2) the appellant’s
declarations of intent to kill; (3) the appellant’s planning activities before the killing; (4) the manner


                                                  -12-
of the killing, including the appellant’s using a deadly weapon upon an unarmed victim, killing the
victim while the victim is retreating or attempting escape, or killing the victim in a particularly cruel
manner; and (5) the appellant’s demeanor before and after the killing, including a calm demeanor
immediately after the killing. See State v. Pike, 978 S.W.2d 904, 914-15 (Tenn. 1998). Additionally,
this court has suggested that facts concerning the prior relationship between the appellant and the
victim from which motive could be inferred is indicative of premeditation. See State v. Gentry, 881
S.W.2d 1, 5 (Tenn. Crim. App. 1993).

         Viewed in the light most favorable to the State, the evidence establishes that the appellant and
the victim had a volatile relationship. Although a witness testified that the appellant and the victim
were in a bar on the night before the victim’s death and were not fighting, the victim’s uncle testified
that he talked with her about 6:00 p.m. and that she sounded upset. The victim told her uncle that she
was planning to leave the appellant, a possible motive for the killing. About nine hours later, the
appellant flagged down a police officer, told the officer that he and the victim had been fighting, that
he thought the victim was dead, and that he may have killed her. The autopsy photographs show that
the appellant brutally beat the victim. Her forehead, cheeks, and lips were badly bruised, the skin on
her nose and behind her ear was torn, her eyes were black, and she had bruises on her arms and legs.
Dr. Smith testified that the victim’s brain swelled due to bleeding on its surface and that the victim’s
injuries showed she had been assaulted. Dr. Smith also testified that a serrated knife may have caused
some of the victim’s injuries, indicating that the appellant used a weapon in his attack against her, and
there is no evidence that the victim was armed. Betty Zabt testified that she heard the appellant say
over the telephone that he was going to kill the victim. We conclude that a rational juror could have
found that the appellant acted with premeditation. Thus, the evidence supports the appellant’s
conviction for first degree premeditated murder.

                                           III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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