         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 5, 2006

                    STATE OF TENNESSEE v. SANDRA EVANS

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 05-03656    Carolyn Wade Blackett, Judge



                 No. W2006-00167-CCA-R3-CD - Filed September 13, 2007


The defendant, Sandra Evans, was convicted of first degree felony murder in the perpetration of theft
and voluntary manslaughter (a Class C felony). The conviction for voluntary manslaughter was
merged with the felony murder conviction, and the defendant was sentenced to life imprisonment.
On appeal, the defendant challenges the admissibility of hearsay testimony under the exceptions for
excited utterances, and medical diagnosis and treatment. The defendant also contends that certain
testimony violated her right to confrontation and that the evidence, as a whole, was insufficient to
support the convictions. Upon review, we reverse the conviction and remand for a new trial.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and J.C.
MCLIN , JJ., joined.

Robert Wilson Jones, District Public Defender; and Garland Ergüden and Robert Trent Hall,
Assistant Public Defenders, for the appellant, Sandra Evans.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stacy McEndree, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        Willie Albert Guinn, the victim in this case, received severe burns to his head, upper body,
and upper extremities at his home on November 16, 2002. The victim drove himself to the Regional
Medical Center in Memphis (Med) where he was treated. The victim succumbed on December 8,
2002, due to complications resulting from the burns. The defendant was indicted for premeditated
first degree murder and first degree felony murder in the perpetration of theft. A jury convicted the
defendant of voluntary manslaughter and felony murder.
        Wendell Guinn, the victim’s son, visited with his father at the hospital emergency room on
November 16, 2002. Wendell Guinn asked the victim how the burns had happened. The victim said
the defendant had come to the victim’s house and asked to stay there that night. The victim told her
she could stay in the front of the house. Later, the defendant woke him and asked for money. The
victim refused her and went back to sleep. The victim was awakened by something wet being
poured on him. The defendant then took an aerosol can and lit a flame that set the victim on fire.
The victim extinguished the flames by getting into the bathtub. The defendant then took the victim’s
wallet and jumped out the window. The victim drove himself to the hospital. Wendell Guinn said
that his father seemed to be in pain but related the event in a calm and coherent manner.

        Later on November 16, Wendell Guinn went to his father’s home. In the victim’s bedroom,
he saw a lighter, an aerosol can, and an empty bottle of alcohol on the floor. A shirt with burn holes
was in the bathtub. About a week later, Wendell Guinn cleaned the house and threw those items
away. The victim’s wallet was not found. Wendell Guinn stated that he knew the defendant and that
his father and the defendant had a relationship over a period of approximately one year. The
defendant had, at times, lived with the victim but was not living there at the time of this incident.

       Dr. Laura Cooper was the general surgeon on duty when the victim presented himself at the
emergency room. Dr. Cooper stated that the victim had second degree burns to more than fifteen
to twenty percent of his body. The burns were primarily on the head, neck, face, chest, upper arms,
and shoulders. She characterized second-degree burns as the most painful of burns and said the
victim was under stress the entire time he was in the hospital. Dr. Cooper’s only contact with the
victim was from 3:00 a.m. until 7:00 p.m. on November 16. The victim told her that alcohol was
thrown on him and lit with a flame.

        Joy Adams, the victim’s daughter, was notified of her father’s hospitalization between 1:00
a.m. and 2:00 a.m. on November 16. She went to the hospital and talked to the victim after he had
been moved to a room three or four hours later. Mrs. Adams was unsure of his demeanor as she said
the victim would always display a “happy face” to her. She did believe the victim was in pain. The
victim told her that he was asleep at home until he woke up to find the defendant smoking crack in
the house. The defendant wanted money, and the victim told her to leave. The victim then lay down
again. Afterwards, he felt something wet being poured on him and then a flame ignited him. The
victim said he put out the flames in the bathtub and then drove to the hospital.

        Chyral Crawford, a sister of the victim, heard the victim relate the events at approximately
9:30 a.m. on November 16. The victim said the defendant had wanted money from him, but he had
refused. The defendant doused the victim by pouring alcohol from a bottle. While he was wiping
his face, the defendant set him afire using an aerosol can and a lighter. The defendant then took the
victim’s wallet and left through a window. Mrs. Crawford stated that the victim had no problems
speaking as he related these events and that he never changed his version of what had happened.

       Evelyn Lincoln, another sister of the victim, visited him with Chyral Crawford on November
16. She stated that the victim told them that he was asleep when the victim came into his room and


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asked for money. He replied that he had no money, and he again laid down. The victim said that
he sat up when he felt something wet on his head and face; he then saw a ball of flame. The victim
also said that he could not find his wallet when he prepared to leave. Ms. Lincoln went with other
relatives to the victim’s house and saw an aerosol can and an alcohol bottle in the floor of the
victim’s bedroom.

        Officer Paul Neely, of the Memphis Police Department, interviewed the victim at 10:45 a.m.
on November 16. He stated that the victim’s speech was very labored. The victim told him that his
girlfriend had thrown alcohol on him and set him on fire. Officer Neely submitted a report and had
no further dealings with this case.

        Dr. Michael Kelton was the victim’s primary care physician while the victim was a patient
at the Med. Dr. Kelton first spoke with the victim at approximately 6:00 a.m. on November 16. He
said the victim understood what was happening. The victim told Dr. Kelton that a friend wanted to
borrow money and that he refused. The friend threw flammable liquid on him, and a scuffle ensued
until the friend sprayed him with a flammable liquid and set him afire using aerosol and a lighter.

        In November 2002, Memphis Police Officer Bridgette King was assigned to the domestic
violence unit. Officer King interviewed the victim a week or two after the incident. She described
the victim as jovial but said that he talked with difficulty. The defendant was identified as a suspect,
and Officer King filed a warrant for the defendant’s arrest. The case was transferred to the homicide
unit after the victim’s death.

       Dr. Jeffrey Lehman, an internal medicine physician, first saw the victim on November 18.
The victim told him that his burns were the result of his girlfriend pouring alcohol on him and setting
him afire.

        Officer Joe Stark, of the Memphis Police Department, was the coordinator of this case after
it was transferred to homicide. Officer Stark became involved on December 9, and he went to the
victim’s home on December 12. This was apparently the first visit to the crime scene by officers.
During his thirty-minute investigation of the house, Officer Stark found one window with a broken
lock.

     Dr. Teresa Campbell, a forensic pathologist, performed an autopsy of the victim’s body on
December 9. She testified that the victim died due to complications caused by the burns he received.

        The defendant testified in her own behalf. She stated that the victim had often abused her
physically during their off and on two-year relationship. She said that, due to the victim’s gambling
losses, she had given him money and her food stamps. Despite this, the victim continued to beat her.
On the night of this incident, she had told the victim she was leaving him. The victim locked the
doors to the house and dragged her into his bedroom where he beat her with a belt and choked her.
The defendant was attempting to leave through a window when the victim threw water on her. The
defendant changed clothes, and the victim placed a belt on her neck and was choking her while


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threatening to cut her into pieces. As the two struggled, the defendant grabbed an aerosol can and
sprayed him. She then threw the contents a bottle of alcohol on the victim. She stated that the
victim’s shirt must have been on fire from his contact with a gas stove during their struggle, but that
she was unaware of this when she doused him with alcohol. The defendant saw the flames that also
rolled down her arms. She grabbed her purse and went out a window. She denied taking the
victim’s wallet.

                                              Sufficiency

        The defendant contends that the evidence was insufficient to convict her “of any grade of
homicide greater than voluntary manslaughter.” When sufficiency of the evidence adduced at trial
is challenged on appeal, the relevant question 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 offense charged beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). All questions involving the credibility of witnesses,
the weight and value of the evidence, as well as the factual issues raised by the evidence are resolved
by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A jury conviction removes
the presumption of innocence and replaces it with one of guilt so that, on appeal, a convicted
defendant has the burden of demonstrating it is insufficient. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

        The evidence presented to the jury, viewed in the light most favorable to the State, was
sufficient to establish that the defendant was guilty of felony murder. Felony murder is the “killing
of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of
terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child
neglect or aircraft piracy.” T.C.A. 39-13-202(a)(2). The mental state required for conviction of
felony murder is the intent to commit the underlying offense. T.C.A. § 39-13-202(b). In this case,
the underlying felony was theft. “A person commits theft of property if, with intent to deprive the
owner of property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” T.C.A. § 39-14-103.

        In recalling how he received the eventually fatal burns, the victim told five relatives and three
medical personnel that the defendant (or in some cases, girlfriend) had poured a flammable liquid
on him and then ignited the blaze. The victim told his relatives that the defendant did this because
he had refused her demands for money. The victim also told the relatives who testified that, after
setting him afire, the defendant took his wallet and left by a window.

       Within twenty-four hours of the victim’s injuries, Wendell Guinn, Chyral Crawford, and
Evelyn Lincoln visited the victim’s home. All three witnesses testified they found an aerosol can
and an alcohol bottle on the victim’s bedroom floor. Wendell Guinn also found a lighter in the
victim’s bedroom. The victim’s wallet was never found.




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        The defendant admitted spraying the victim with aerosol and pouring alcohol on him,
although she claimed that it was in self-defense and that the fire was accidental. She further admitted
that she left through a window without rendering assistance to the victim.

      Based on the evidence presented at trial, a rational jury could find the elements of felony
murder sufficient beyond a reasonable doubt.

                                         Hearsay Testimony

        The defendant contends that certain hearsay testimony was erroneously admitted over
objection on the basis of 1) medical diagnosis and treatment, 2) excited utterance, and 3) failure to
consider the confrontation issue in testimonial statements by the victim.

                                 Medical Diagnosis and Treatment

      Among the exceptions to the general ban on hearsay is that of a statement for purposes of
medical diagnosis and treatment as contained in Tennessee Rule of Evidence 803(4).
      The following are not excluded by the hearsay rule:
      Statements made for purposes of medical diagnosis and treatment describing medical
      history; past or present symptoms, pain, or sensations; or the inception or general
      character of the cause or external source thereof insofar as reasonably pertinent to
      diagnosis and treatment.

       The important limitation of this exception is that the statement must be “pertinent to
diagnosis and treatment.” Some statements that are intended by the declarant to be used for
diagnosis and treatment are not always admissible. Their admissibility hinges on whether they are
reasonably pertinent to diagnosis and treatment. State v. Williams, 920 S.W.2d 247, 256 (Tenn.
Crim. App. 1995), citing Neil Cohen et al., Tennessee Law of Evidence § 809 [5] (p. 8-99) (4th ed.
2005).

        Dr. Kelton testified concerning the victim’s argument over money with a “friend.” This was
irrelevant to diagnosis and treatment and should have been redacted. Williams, 920 S.W.2d at 256.

        Dr. Lehman testified that the victim informed him that the victim’s girlfriend had poured
alcohol on him and set him on fire. Upon this record, identification of the offender does not seem
pertinent to the medical diagnosis and treatment. Furthermore, Dr. Lehman first saw the victim on
November 18, well after the victim’s burns were identified and appropriate treatment had begun.
This testimony also should have been redacted.

       By contrast, Dr. Cooper’s testimony was more restrained as it omitted some of the extraneous
information unnecessary for medical diagnosis and treatment. She stated that the victim had said
he had alcohol thrown on him and ignited with a flame. The record before us does not reveal if
medical treatment would be different for alcohol burns than for any other flammable liquid.

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However, we are of an opinion that the method of application of the flammable liquid is irrelevant
to the medical treatment. Redaction would have been proper in this case.

                                          Excited Utterance

       Four of the victim’s relatives were allowed to testify as to what the victim told them about
the cause of his burns. The trial court allowed this testimony over objection under the hearsay
exception for an excited utterance. Tenn. R. Evid. 803(2). The text of the rule is as follows:

        The following are not excluded by the hearsay rule:
               A statement relating to a startling event or condition made while the
               declarant was under the stress of excitement caused by the event or
               condition.

The rationales for this exception have been explained as follows:
        First, since this exception applies to statements where it is likely there was a lack of
        reflection – and potential for 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. The Tennessee Court of Criminal Appeals eloquently
        summarized this view: “The underlying theory of this exception is that
        circumstances may produce a condition of excitement which temporarily stills the
        capacity of reflection and produces utterances free of conscious fabrication.” The
        lack of reflection is present because Rule 803(2) requires that the declarant must
        actually be under the stress of excitement while speaking. This hearsay exception is
        not available for a statement made when the declarant is no longer under stress. But
        a statement may qualify as an excited utterance even if the declarant has a motive to
        make a self-serving statement. 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.
Cohen et al., at § 807 [p. 8-73 - 8-74], citing State v. Land, 345 S.W.3d 516, 528 (Tenn. Crim. App.
2000).

        It has been held that “[t]he ultimate test is spontaneity and logical relation to the main event
and where an act or declaration springs out of the transaction while the parties are still laboring under
the excitement and strain of the circumstances and at a time so near it as to preclude the idea of
deliberation and fabrication.” State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993).

       The time interval between the startling event is but one factor in determining whether a
statement was under stress and excitement. Other relevant considerations include the nature and
seriousness of the event; the appearance, behavior, and circumstances of the declarant, including
such characteristics as age and physical and mental condition; and the content of the statement itself,



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which may indicate the presence or absence of stress. State v. Stout, 46 S.W.3d 689, 700 (Tenn.
2001).

        The victim related the events that resulted in his burns to Wendell Guinn after the victim had
driven himself to the hospital and had received emergency treatment. Wendell Guinn said the victim
spoke in a calm and coherent manner, although he seemed to be in pain.

        Joy Adams heard the victim’s version of the cause of the burns several hours after the event
and after the victim was placed in a private room. In describing the victim’s demeanor, Joy Adams
said the victim always displayed a “happy face” to her.

        Chyral Crawford and Evelyn Lincoln visited the victim after 9:00 a.m. on November 16. The
victim had received treatment and had been placed in a room. Chyral Crawford stated that the victim
had no problems speaking as he related the events. Evelyn Lincoln stated that the victim’s
appearance was upsetting to her but that he assured her “it’s going to be all right.”

       Officer Paul Neely interviewed the victim at 10:45 a.m. on November 16. He stated that the
victim’s speech was very labored and that it was difficult for the victim to talk.

       Officer Bridgette King, then a member of the domestic violence unit of the Memphis Police
Department, interviewed the victim a week or two after he sustained his burns. She stated that,
based on the victim’s statements concerning the incident, she identified the defendant as the suspect
and caused a warrant to be taken for her arrest.

         In our view, none of the declarant’s statements, as repeated in the above testimony, meet the
criteria for excited utterances. None of the statements appear spontaneous but, rather, as calm
recitations. The trial court adopted an arbitrary twenty-four-hour rule that would admit these
statements uttered within twenty-four hours of the incident. This standard is unknown to our
jurisprudence and ignores the rationales supporting the exception. At trial, the State placed great
emphasis on the continuing stress of the victim due to the painfulness of his injuries. We have no
doubt that the pain was severe and continued, in all probability, until death. However, the exception
is based in part on the stress of the startling event itself and not on continuing pain.

       For the foregoing reasons, we conclude that the subject testimony did not meet the
requirements of the excited utterance exception and should have been excluded as inadmissible
hearsay.

                                        Confrontation Issue

        The defendant also contends the victim’s statements, as presented by the State’s witnesses,
violated the defendant’s right to confront her witnesses.




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        The United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004), reexamined the application of the Confrontation Clause of the United States Constitution and
the admissibility of hearsay testimony. Our Supreme Court explained the analysis necessary when
the prosecution attempts to introduce a declarant’s out-of-court statement and the defendant raises
a Confrontation Clause objection.
        [T]he initial determination under Crawford is whether the statement is testimonial
        or nontestimonial. Crawford, 541 U.S. at 68, 124 S. Ct. 1354. If the statement is
        testimonial, then the trial court must determine whether the declarant is available or
        unavailable to testify. If the declarant is available, then there is no confrontation
        problem: “[t]he Clause does not bar admission of statement so long as the declarant
        is present at trial to defend or explain it.” Id. at 59 n. 9, 124 S. Ct. 1354 (citing
        California v. Green, 399 U.S. 149, 162, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)). If
        the declarant is unavailable, the trial court must determine whether the accused had
        a prior opportunity to cross-examine the declarant about the substance of this
        statement. Id. at 68, 124 S. Ct. 1354. If the accused had such an opportunity, the
        statement may be admissible if it is not otherwise excludable hearsay. If the accused
        did not have this opportunity, then the statement must be excluded.

        If the statement is nontestimonial, the Confrontation Clause analysis does not end.
        Instead, consistent with Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d
        597, the court must determine whether the out-of-court statement bears adequate
        indicia of reliability – specifically, whether it falls within a “firmly rooted hearsay
        exception” or bears “particularized guarantees of trustworthiness.” See Crawford,
        541 U.S. at 68, 124 S. Ct. 1354 (stating that “[w]here nontestimonial hearsay is at
        issue, it is wholly consistent with the Framer’s design to afford the States flexibility
        in their development of hearsay law – as does [Ohio v.] Roberts”).
State v. Maclin, 183 S.W.3d 335, 351 (Tenn. 2006).

        The victim’s statements to the two officers were during an interrogation and would certainly
qualify as testimonial in nature. In Crawford, it was held that the Confrontation Clause of the United
States Constitution:
        applies to “witnesses” against the accused – in other words, those who “bear
        testimony.” . . . “Testimony,” in turn, is typically “[a] solemn declaration or
        affirmation made for the purpose of establishing or proving some fact.” . . . An
        accuser who makes a formal statement to government officers bears testimony in a
        sense that a person who makes a casual remark to an acquaintance does not. The
        constitutional text, like the history underlying the common-law right of
        confrontation, thus reflects an especially acute concern with a specific type of out-of-
        court statement.

       Various formulations of this core class of “testimonial” statements exist: “ex parte
       in-court testimony or its functional equivalent – that is, material such as affidavits,
       custodial examinations, prior testimony that the defendant was unable to cross-


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      examine, or similar pretrial statements that declarants would reasonably expect to be
      used prosecutorially,” . . . “extrajudicial statements . . . contained in formalized
      testimonial materials, such as affidavits, depositions, prior testimony, or
      confessions,” . . . “statements that were made under circumstances which would lead
      an objective witness reasonably to believe that the statement would be available for
      use at a later trial[.]” . . .
Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364 (citations omitted).

        The defendant had no prior opportunity to cross-examine the victim concerning his
declarations made either to relatives or police officers. In addition, we have previously concluded
that the statements did not qualify as a hearsay exception and, thus, were subject to exclusion.

         However, the defendant herein did not interpose a confrontation objection at trial nor raise
this issue in the motion for new trial. Thus, the issue as to confrontation was waived. See Tenn. R.
App. P. 3(e); State v. Courtney Means, No. W2005-00682-CCA-R3-CD, 2006 Tenn. Crim. App.
LEXIS 242, at *15 (Tenn. Crim. App., at Jackson, Mar. 21, 2006) (holding that although the
defendant had objected on the grounds of hearsay, he waived the issue of confrontation by not
objecting on that basis). An issue may not be raised for the first time on appeal. Tenn. R. App. P.
36(a).

                                            Conclusion

        After review, we conclude that the evidence, as presented at trial, was sufficient to support
the defendant’s conviction. However, we further conclude that much of the evidence was
inadmissible hearsay and did not qualify as exceptions under medical diagnosis and treatment or as
an excited utterance. The defendant waived the confrontation issue, but the evidence was otherwise
inadmissible as hearsay. The error in admitting the inadmissible evidence requires a reversal of the
defendant’s conviction and remand for a new trial.




                                                      ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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