         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 10, 2001 Session

                     STATE OF TENNESSEE v. ANDRE NEELY

                 Direct Appeal from the Criminal Court for Shelby County
                No. 96-09443, 96-09445, 09-09446  Arthur T. Bennett, Judge



                     No. W2000-01690-CCA-R3-CD - Filed April 26, 2002


After the defendant’s arrest for first degree murder and attempted first degree murder, a Shelby
County General Sessions Court conducted a preliminary hearing to determine if there was probable
cause to support his arrest. At the conclusion of the preliminary hearing, the court dismissed the
defendant’s case. However, a Shelby County grand jury later indicted the defendant for first degree
murder and two counts of attempted first degree murder. Pursuant to a jury trial, the defendant was
found guilty of one count of second degree murder and two counts of attempted second degree
murder. Accordingly, the trial court sentenced the defendant to serve twenty years in confinement.
The defendant now brings this appeal, challenging his conviction on the basis that (1) he was denied
an opportunity to review the preliminary hearing tape, which was destroyed, and that (2) the trial
court refused to admit certain testimony to cure this deficiency. After reviewing these claims, we
find that neither of them merit relief. Accordingly, we affirm the defendant’s convictions.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN, JJ., joined.

John E. Dunlap, Memphis, Tennessee, for appellant, Andre Neely.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for
appellee, State of Tenenssee.

                                             OPINION

                                       Factual Background
       Four men, one of whom was the murder victim, were en route to a car wash after having
recently left a neighborhood egg fight. They pulled up next to another car at an intersection and
proceeded to pelt the car with eggs. The defendant was in this car, along with three other people. The
defendant exited the vehicle and began shooting at the fleeing car. After he fired several rounds, he
informed the car’s occupants that “[t]hey won’t fuck with me anymore.” One of the defendant’s
bullets hit the murder victim in the back of his head, and the victim died as a result of the wound
several days later.
         As noted above, the defendant was subsequently arrested on murder charges. At the
conclusion of a preliminary hearing, the court dismissed the charges against the defendant. The
defendant, who was indicted on murder charges approximately one year later, sought to review a tape
recording of his preliminary hearing. However, he learned that this tape had been destroyed.
Accordingly, he sought either one of the two remedies: (1) a dismissal of his indictment and remand
for a new preliminary hearing or (2) the admission of a witness’s statement as a substitute for the
individual’s sworn preliminary hearing testimony that the defendant would have sought to introduce
if that testimony had been properly preserved. The trial court refused to grant the defendant either
form of relief. As stated above, he was convicted of one count of second degree murder and two
counts of attempted second degree murder and now brings this appeal.


                                  Motion to Dismiss Indictment

        The defendant argues that the trial court erroneously refused to grant his motion to dismiss
his indictment and remand his case for a new preliminary hearing on the basis that he was denied his
right to review a record of his preliminary hearing tape pursuant to Tennessee Rule of Criminal
Procedure 5.1(a).

       This rule states, in relevant part, that
       the [preliminary hearing] proceedings shall be preserved by electronic recording or
       its equivalent and when the defendant is subsequently indicted such recording shall
       be made available for listening to by the defendant or defendant’s counsel to the end
       that they may be apprised of the evidence introduced upon the preliminary
       examination.


Tenn. R. Crim. P. 5.1(a). Furthermore, the proper remedy when a preliminary hearing is lost or
destroyed is for the trial court to grant defense counsel’s request to dismiss the defendant’s
indictment and remand the case for a new preliminary hearing. See State v. Carter, 970 S.W.2d 509
(Tenn. Crim. App. 1997). As noted above, defense counsel made such a request, which the trial
court overruled. The court found that the tape was negligently erased and stated that it would not
dismiss the defendant’s case without some showing that the prosecution was deliberately
withholding information from the defense.
        Given the procedure outlined in Carter for remedying a violation of Rule 5.1(a), the trial
court erred by refusing to grant the defendant’s motion to dismiss the indictment. See, e.g., State
v. Robert C. Copas, No. M1999-00841-CCA-R3-CD, 2000 WL 1336686, at *1 (Tenn. Crim. App.
at Nashville, Sept. 15, 2000) (affirming a trial court’s decision to dismiss an indictment and remand
the case for a new preliminary hearing when the tape recording of the defendant’s preliminary
hearing was inaudible). However, such error is subject to a harmless error analysis. See State v. Glen


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Porter, No. 03C01-9808-CR-00294, 1999 WL 817658, at *5 (Tenn. Crim. App. at Knoxville, Sept.
29, 1999) (finding that the loss of the opportunity to review a tape recording of a defendant’s
preliminary hearing was harmless error because the defendant was not prejudiced by this omission);
State v. Carter, 970 S.W.2d 509 (Tenn. Crim. App. 1997) (same); State v. McBee, 644 S.W.2d 425
(Tenn. Crim. App. 1982) (same); State v. Butts, 640 S.W.2d 37 (Tenn. Crim. App. 1982) (same).
Specifically, “when the evidence contained in the record is so compelling on the question of the
defendant’s guilt, the lack of a recording of the preliminary hearing may be considered harmless
error if it would not have significantly aided the defense.” State v. Jamil Butler, No. 01C01-9612-
CR-00529, 1998 WL 240335, at *6 (Tenn. Crim. App. at Nashville, May 14, 1998) (citing State v.
Bohanan, 745 S.W.2d 892, 896 (Tenn. Crim. App. 1987); Butts, 640 S.W.2d at 38).
         In the instant case, the evidence against the defendant was strong. One of the passengers in
the defendant’s car on the night of the shooting, Ms. Harris, testified that the defendant had a gun
in the car on the night in question; that he exited the car before the shooting began; and that once he
got back inside the car after the shooting ceased, he stated that he had not used all of the bullets in
his gun and that “[t]hey won’t fuck with me anymore.” Further, although Samuel Jones, a passenger
who was in the car with the victim, testified at trial that he did not recall seeing the defendant with
a gun at the crime scene, he had made an earlier inconsistent statement to the police after the
shooting that he had indeed seen the defendant with a nine millimeter gun, the same type of gun as
the murder weapon, at the crime scene. Additionally, Laron Ward, another passenger in the victim’s
car, conclusively and positively identified the defendant as the shooter at trial.
         The defendant argues that the preliminary hearing testimony would have significantly aided
in his defense because Anthony Johnson, another passenger in the victim’s car, allegedly testified
at the preliminary hearing that the driver of the defendant’s car was the shooter. The defendant
makes this supposition because Mr. Johnson made a similar statement to the police after the
shooting. The defendant asserts that this testimony would aid his defense because several witnesses
to the crime indicated that the defendant was in the rear of the car, not in the driver’s seat. However,
the defendant’s argument is flawed in many aspects. First, we have no way to conclusively
determine that Mr. Johnson gave testimony at the preliminary hearing that was consistent with his
earlier statement to the police. Moreover, the defendant has not demonstrated that ordering a
dismissal and a new preliminary hearing would cure any prejudice resulting from the trial court’s
erroneous refusal to dismiss his indictment. If we were to grant him this remedy, the defendant has
not demonstrated that he would be able to procure Mr. Johnson’s testimony at the new preliminary
hearing. Apparently, Mr. Johnson was unavailable to testify at the defendant’s trial because he had
been avoiding process, as he is a suspect in an unrelated crime.
         In light of (1) the impossibility of conclusively determining the substance of Mr. Johnson’s
testimony, (2) the likely inadequacy of a dismissal and new preliminary hearing as a remedy for the
destruction of the original preliminary hearing tape, and (3) the strong evidence of the defendant’s
guilt, we cannot say that the availability of the preliminary hearing testimony would have
“significantly aided the defense.” Butler, 1998 WL 240335, at *6. Accordingly, we deem the trial
court’s failure to remand the case for a new preliminary hearing to be harmless error.




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                                     Prosecutorial Misconduct

        The defendant also argues that the state committed prosecutorial misconduct by allowing the
tape recording of the preliminary hearing to be destroyed. The trial court determined that the
destruction of the tape was a result of negligence on the part of the state and accordingly found that
the state did not intentionally commit prosecutorial misconduct. We agree with the trial court’s
conclusion.
        When determining whether alleged instances of prosecutorial misconduct might have affected
the verdict to the prejudice of the defendant, this Court must consider, inter alia, “the intent of the
prosecutor in making the improper statements” or committing the improper act. Judge v. State, 539
S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also Nicholas Todd Sutton v. State, No.
03C01-9702-CR-00067, 1999 WL 423005, at *7 (Tenn. Crim. App. at Knoxville, June 25, 1999)
(finding that a claim of prosecutorial misconduct did not warrant relief because the petitioner had
not demonstrated that the prosecutor acted intentionally).
        In the instant case, the Shelby County District Attorney General’s Office has taken on the
responsibility of recording preliminary hearings and making them available to the defense upon
request. According to the Shelby County assistant district attorney general who was prosecuting the
defendant’s case, his office destroys tapes by recording over them once the tape becomes two-years
old. They have adopted this practice due to the expense related to preserving these tapes indefinitely.
The defendant requested to review his preliminary hearing tape outside of this two-year window.
The defendant argues that the attorney general’s office committed prosecutorial misconduct by
failing to preserve his preliminary hearing tape beyond the customary two-year window, as the
defendant was indicted one year after the preliminary hearing was held. Therefore, the preliminary
hearing tape was destroyed while the defendant’s case was still active.
        While we agree that the district attorney general’s practice of destroying preliminary hearing
tapes of active files is a questionable practice, we do not find that the district attorney general’s
office destroyed the tape either intentionally or in order to deprive the defendant of a fair trial, but
rather in accordance with a practice that the office implemented before the defendant’s preliminary
hearing was recorded. Accordingly, because we do not find that the state acted intentionally, we find
that the defendant’s claim of prosecutorial misconduct lacks merit.


                Admissibility of Unavailable Witness’s Statement to the Police

         The defendant argues that because the sworn testimony recorded in the preliminary hearing
tape could not be introduced at trial, the trial court should have admitted an unavailable witness’s
statement to the police. As previously mentioned, this witness gave a statement to the police after
the crime occurred and later testified at the preliminary hearing. However, the witness was not
available at the time of trial because he was avoiding process due to his involvement in an unrelated
crime. Accordingly, because the defendant ordinarily would have sought to admit this witness’s
sworn preliminary hearing testimony during trial under Tennessee Rule of Evidence 804(b)(1), the
rule allowing the admission of prior sworn testimony of unavailable declarants, the defendant argues
that the trial court should have fashioned a remedy to compensate the defendant for the loss of the


                                                  -4-
opportunity to introduce that prior sworn testimony. Specifically, the defendant argues that the trial
court should have admitted the statement that this witness gave to the police shortly after the crime
occurred. Although the statement does not comply with the mandate of Rule 804(b)(1) that the prior
statement of an unavailable declarant be sworn testimony, the defendant argues that the interests of
providing the defendant with a fair trial override the evidentiary requirements for admissibility.
         Tennessee Rule of Evidence 804, an exception allowing admission of otherwise inadmissible
hearsay, applies only if the declarant of the hearsay statement is unavailable at the time of trial. Part
(5) of subsection (a) states that a declarant will be deemed unavailable if the declarant “is absent
form the hearing[,] and the proponent of a statement has been unable to procure the declarant’s
attendance by process.” Tenn. R. Evid. 804(a)(5). Because defense counsel was unable to procure
the presence of the witness at issue, the witness was unavailable within the meaning of Rule
804(a)(5).
         However, in order for this witness’s statement to have been admissible, the statement must
have been either a statement made under the belief of impending death, a statement against interest,
or former testimony. Tenn. R. Evid. 804(b)(1), (2), (3). However, the witness in the instant case did
not make his statement while dying or injured, nor did he speak against his own pecuniary or
proprietary interest by making the statement. See Tenn. R. Evid. 804(b)(2), (3). Rather, he was
simply relaying his observations to a police officer as a witness to a recent shooting. Moreover, the
statement was not given at a hearing and there was no opportunity for either party to develop or
cross-examine his statement. Tenn. R. Evid. 804(b)(1). Accordingly, the statement was not former
testimony under Rule 804(b)(1) and thus does not fall within the ambit of Rule 804.
         The rationale behind the inadmissibility of hearsay statements is that hearsay statements are
inherently unreliable. See State v. Henry, 33 S.W.3d 797, 801 (Tenn. 2000); Neil P. Cohen et al.,
Tennessee Law of Evidence § 801.1, at 490-91 (3d ed. 1995). The legislature has made exceptions
to the hearsay rule in order to allow admission of certain hearsay that is assumed to be sufficiently
reliable to warrant admission because of the context in which it was made. See Henry, 33 S.W.3d
at 801. However, the defendant has not demonstrated the reliability of the hearsay statement that he
argues should have been admitted at trial, as he has not argued that the hearsay would fall into one
of the recognized hearsay exceptions. Moreover, several of the witnesses at trial gave testimony that
differed from the statements that they had made to the police shortly after the shooting occurred,
demonstrating the inherent unreliability of such statements and therefore the rationale for their
inadmissibility.
         Furthermore, despite the defendant’s argument that the trial court should have admitted the
hearsay in order to provide the defendant with a fair trial, we do not find that the admission of
inadmissible hearsay would have changed the outcome of his trial. As noted above, the proof of the
defendant’s guilt was strong, and thus we do not find that the admission of this hearsay would have
so affected the trial as to change its outcome.




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                                         Conclusion

      For the foregoing reasons, we find that none of the defendant’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




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