         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 23, 2008 Session

         STATE OF TENNESSEE v. MARTHA ANN FREEMAN AND
                  RAFAEL DEJESUS ROCHA-PEREZ

                Direct Appeal from the Criminal Court for Davidson County
                       No. 2005-C-2044 J. Randall Wyatt, Jr., Judge



                    No. M2006-02751-CCA-R3-CD - Filed March 28, 2008


A Davidson County jury convicted the Defendants, Martha Ann Freeman and Rafael DeJesus Rocha-
Perez, of the first-degree murder of Martha Freeman’s husband. On appeal, Freeman alleges that
the trial court erred by: (1) admitting a nude photograph of Rocha-Perez; (2) refusing to allow
Freeman to play a recording of a 911 call; and (3) refusing to grant her motion to sever. Rocha-Perez
alleges the trial court erred by allowing a police officer to testify concerning a statement Freeman
made in violation of the Confrontation Clause. Both Defendants allege there was insufficient
evidence to support their convictions. After a thorough review of the record and applicable law, we
affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL, JJ., joined.

Richard McGee and Glenn Funk, Nashville, Tennessee, for the Appellant, Martha Ann Freeman.
Peter J. Strianse and Ana Escobar, Nashville, Tennessee for the Appellant, Rafael DeJesus Rocha-
Perez.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General;
Katrin Miller and J.W. Hupp, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                            OPINION
                                             I. Facts
                                       A. Pre-trial Motions

       The Defendants were indicted on charges of first-degree premeditated murder of Freeman’s
husband, Jeffrey Freeman.1 Prior to trial, the trial court heard testimony concerning a motion to
allow Freeman to introduce the tape of a 911 call and a motion to sever the Defendants’ trials. At
that hearing, Raegene Beverly testified that she lived across the street from the Freemans in 2005.
On the afternoon of April 11, 2005, she heard pounding at her front door. Beverly opened her front
door, and Freeman entered her house. Without looking Beverly in the eye, Freeman stated “A man
killed my husband.” Beverly asked if she had called 911, to which Freeman responded, “No.”
Beverly turned, picked up her cell phone, and dialed 911. While Beverly talked to the operator,
Freeman “just st[ood] there.” The operator asked Beverly a few questions until Beverly handed the
phone to Freeman. Freeman did not respond to the operator’s questions, so Beverly then took back
the phone.

        In describing Freeman’s demeanor, Beverly stated that she was “somewhat stern” and was
not crying; Beverly never gave Freeman any tissues. Freeman simply sat down on Beverly’s interior
steps. Relaying answers through Beverly, Freeman stated she knew the man who killed her husband
and that her husband had “found him.” Beverly told the operator that Freeman did not know if the
man was still inside her house.

         On cross-examination, Beverly stated she had not been in the Freemans’ house very often.
She described them as friendly neighbors, and they would often talk in the yard. Beverly also
testified that some weeks prior to the hearing she called Freeman’s attorney to check on Freeman’s
mental health out of “concern[] for her welfare.”

         Karen Neal testified that she also lived across the street from the Freemans. Neal stated that
she was up at 7:45 a.m. on the morning of April 11, 2005. As she was preparing for work, she saw
Freeman, who appeared to be alone, standing on her front porch with a cigarette in her hand. Neal
testified that Freeman was “very still” and “rather unusual,” and Neal was concerned that she might
need help.

        On cross-examination, Neal stated that she would not have noticed if someone was looking
out the door or window at Freeman. She did not know her observations were important until she
discussed it with another neighbor, who suggested she call the police. On redirect-examination, Neal
clarified that Freeman was not “in distress or a panic or crying” but “emotionless” and “zoned out.”

       Lori Estridge, a Walgreens pharmacist, testified that she was a custodian of records at
Walgreens. Estridge stated that a technician filled a prescription for Freeman on April 10, 2005, at
10:01 p.m. under her supervision. Estridge initialed the sale. Estridge further described some of the
medications Freeman had filled at Walgreens and the effects they may have on a person.

       Tara Cantrell testified she was employed at the Freemans’ company, Resi-Fax, for three
years. Although Freeman was not at the business day-to-day, the victim was. He usually came into


        1
        Jeffrey Freeman, the victim, will be referred to as “the victim.” Martha Ann Freeman will be referred to as
“Freeman.”

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work around 8:00 a.m. and was there when Cantrell left at 5:00 p.m. Cantrell testified that she
received a phone call from Freeman between 8:00 and 8:30 a.m. on the morning of April 11, 2005.
Freeman told her that the victim would not be at work that day due to illness. Freeman was not upset
or crying, and she sounded “normal.”

         In a subsequent hearing on the motion, Beverly was recalled and questioned. Beverly
testified that Freeman could be described as “shaking,” “panicking,” and “scared” when she first
entered Beverly’s house. On cross-examination, Beverly stated that she saw nothing to indicate that
Freeman had been held hostage. From Freeman’s actions, it appeared to Beverly that the incident
had just taken place.

        By written order, the trial court found that the recording of the 911 call should not be
admitted at trial as it was hearsay not falling under any exception, specifically the excited utterance
exception. See Tenn. R. Evid. 803(2). Elaborating on that finding, the court stated that “the actions
by the Defendant Freeman, coupled with the substantial time interval between the victim’s death and
the 911 call, do not support the notion that her statements were spontaneous and logically sprung
from the stress of her husband’s murder.” The trial court next found that the defendants should not
have their trials severed because Freeman has not shown “compelling prejudice,” and the
Defendants’ defenses are not “irreconcilable.” Additionally, Freeman made no showing that Rocha-
Perez would testify for her if their trials were severed. In a separate written order, the trial court also
denied Rocha-Perez’s motion for severance for similar reasons.

                                                B. Trial

         At the trial on the charges of murder, the following evidence was presented: Raegene Beverly
testified that she was the Freemans’ neighbor and had been since 2000. She and her husband lived
across the street from the Freemans, and she would, on occasion, take care of the Freemans’ dog and
hamsters. Beverly stated that she also worked for Martha Freeman at her home performing computer
input for her business. In 2003 or 2004, the Freemans’ business, Resi-Fax, had grown large enough
to move from the Freemans’ home to a location in Brentwood. At that point, the victim left his job
to run Resi-Fax full time.

        Beverly testified that, in September of 2004, she noticed that Freeman’s car was no longer
at the Freemans’ house. For some months she did not see Freeman, until Superbowl Sunday in
January 2005. Beverly stated she last saw the victim in their yard on April 9, 2005, standing with
Freeman. Beverly did not notice anything peculiar about the way they were acting.

       The following Monday, April 11, 2005, Beverly opened her front door to Freeman, who was
“pounding” on it. Freeman entered Beverly’s house and said something to Beverly, which prompted
Beverly to call 911. Beverly spoke to the 911 operator for a period of time, and then she gave the
phone to Freeman. Freeman then gave the phone back to Beverly who continued to speak to the
operator. A short time later, emergency vehicles arrived at the scene. Beverly stated she never saw
anyone run from the Freemans’ house during this period of time.


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        On cross-examination by Freeman’s attorney, Beverly testified that she and Freeman were
friends, but they did not socialize on a weekly basis. Beverly recalled that Freeman’s mother,
Margaret Cockrill, moved in with the Freemans after Beverly quit working there. Freeman cared for
Cockrill until her death. Beverly stated that when she saw Freeman on Superbowl Sunday she
offered to begin taking walks with Freeman. That did not occur, however, and she did not see
Freeman much more. Beverly did state that two weeks after the Superbowl, Freeman explained to
her that she was on medication. Beverly further testified that Freeman was “shaking” when she
entered the house on April 11, 2005. Beverly assumed she was scared. Freeman acted as if she was
“panicking” and “anxious,” and it appeared as if she was “in shock.”

      On cross-examination by Rocha-Perez’s attorney, Beverly stated she came to know Tara and
Anthony Cantrell through Freeman’s business. Anthony Cantrell would perform odd jobs at the
Freeman residence. Beverly testified that she did not see Anthony Cantrell in or around the
Freemans’ residence the weekend of April 10 and 11, 2005.

        On redirect-examination, Beverly described Freeman’s behavior further. She stated that she
never saw Freeman cry, so she never offered her a Kleenex. Freeman’s behavior “calmed down”
after the initial moments.

        Brian Hampton, a firefighter, testified that he and his company were called to respond to the
Freemans’ residence in response to a “potential[ly] expired person.” When they arrived, Freeman
exited from a house across the street. She “appeared to be crying and hysterical and she did make
it known that she was a resident in the house.” Hampton began questioning Freeman about basic
information. He asked Freeman when the incident occurred and “she nodded yes” or “what [he]
consider to be a yes” to “twenty to thirty minutes.”

        In describing further Freeman’s state, Hampton said she was “excited,” “agitated,” “crying,”
“flailing about with her hands and that sort of thing.” “She appeared to be upset and was in a highly
excitable state.” An hour later, she was “calm.” When Hampton entered the house, he, along with
medical personnel, discovered the victim’s body. The victim had water dripping off his body, but
“lividity had set up.” The victim “appeared to have been there for a long time.” Rigor had already
begun, “which takes a certain number of hours to occur.” Hampton described the body as lying in
a sleeping bag, partially zipped. There was a plastic bag over the victim’s head, and the bag was
“tied or taped.” Hampton did not notice any blood, and he determined that the vicitm was dead and
not going to be revived.

       Karen Kirby testified that, on April 11, 2005, around 3:30 or 3:45 p.m., she saw a Hispanic
man run through her neighborhood. He was running from a wooded area into a house under
construction. Kirby described the man as having shoulder-length hair, wearing shorts to his knees
and a maroon tee-shirt., and in court she identified this man as Rocha-Perez. Immediately after she
saw him run into the house, she saw police cars driving up Incline Drive, the street where the
Freemans live. Later, Kirby told the police what she saw.



                                                 4
        Sergeant Danny Collins, with the Metropolitan Police Department, testified that he was
directed to Incline Drive to begin his investigation. Collins stated that Kirby’s husband flagged him
down with information about a Hispanic man who had run into a house. On information from Kirby,
Collins and another officer entered a residence on Palomar Court at approximately 6:20 p.m., and
they encountered two individuals. These individuals were apparently examining the house and
building procedures, and they told the officers they heard something upstairs. The officers began
clearing the house and ultimately found Rocha-Perez in the attic rafters.

       Officer Joseph High testified that he was the first police officer to arrive at the Freeman
residence on April 11, 2005. He waited for other officers to arrive, and, when they did, they
searched the residence. They discovered the victim, who had no signs of life, on the master
bathroom floor in a sleeping bag.

        Officer High also explained how he responded to a house on Palomar Court with Sergeant
Collins and Officer Hinkle. Sergeant Collins and Officer Hinkle went inside the residence to clear
it while Officer High remained at the back door to prevent anyone from escaping. Within minutes,
Officer High heard Sergeant Collins and Officer Hinkle yelling in Spanish and English to “show
your hands.” Officer High ran up to where the others were and aided in arresting the suspect by
handcuffing, searching, and placing him in the patrol car.

         Tony Cantrell testified that he was friends with Mr. and Mrs. Freeman, and he worked for
Freeman, cleaning the house and running her errands. He stated he also knew Rocha-Perez, but
Tony Cantrell indicated that Rocha-Perez’s hair was shorter than he remembered. Cantrell testified
that in December 2004 Freeman requested he come to the Candlewood Suites in Brentwood to pick-
up Rocha-Perez. She asked Cantrell to take Rocha-Perez to Murfreesboro and provided him a map.
Cantrell never discussed this trip with the victim.

       Cantrell further testified that on Thursday, April 7, 2005, he was working at the Freeman
residence resealing their back deck. He was unable to finish the job because of rain, so he left the
house. He did not return until Monday, April 11, 2005. When he arrived, an officer asked that
Cantrell take him to where Rocha-Perez lived in Murfreesboro, which he did.

        On cross-examination by Rocha-Perez’s attorney, Cantrell testified that he met Freeman in
2001 when he was performing odd jobs for a neighbor, Ms. Neal. Cantrell stated that, at that time,
he was working for a wrecker service and cleaning residences on the side. Cantrell cleaned
Freeman’s windows, painted the windows, and cleaned the garage. Cantrell also described his
inability to finish restaining the deck on April 7, and he stated that he told Freeman and the victim
that he would return Monday, April 11, to finish the job. Eventually, Cantrell learned about
Freeman’s home business and that she needed some help. Cantrell suggested his wife, Tara Cantrell,
and Freeman hired her.

        Tony Cantrell further testified that in 2001-2002, he also helped Freeman by “babysitting”
her elderly mother when the Freemans went out of town. Cantrell stated he did not know if Freeman


                                                 5
ever checked his background, but he admitted in court to a conviction of possession with the intent
to distribute more than five grams of cocaine in 1996. Cantrell testified that Freeman remained at
the extended-stay hotel for about six months. She sometimes requested that he run errands for her
while she was at the hotel, including taking her to the ATM. Cantrell stated that it was his
impression that the relationship between Freeman and Rocha-Perez was coming to an end when she
called for him to retrieve Rocha-Perez. When he arrived to get Rocha-Perez, Freeman had packed
up all of his belongings, and Cantrell left for Murfreesboro. Freeman instructed him to stop at an
ATM and take from her account $100.00 for Rocha-Perez. Cantrell stated that he was closer friends
with Freeman than the victim, and he never disclosed to the victim that Freeman was staying at an
extended-stay hotel with Rocha-Perez.

         On re-direct examination, Cantrell testified that he was not aware that a relationship between
Freeman and Rocha-Perez had restarted after he took Rocha-Perez to Murfreesboro. Cantrell further
explained that he planned on completing the deck-staining job on Monday, April 11, after his other
job let out at 2:30 p.m. On cross-examination by Freeman’s attorney, Cantrell testified that he did
not kill Jeffery Freeman.

        David Bixby, the manager at the Candlewood Suites, testified that Freeman checked-in on
October 12, 2004, and checked-out on January 29, 2005. Bixby stated that Rocha-Perez stayed in
the room with Freeman, and on one occasion he saw the victim, Jeffrey Freeman. The victim came
by the hotel and asked to speak with Freeman. Bixby witnessed them meet and talk in the lobby.

       Scotty Dodd, the housekeeping supervisor at Candlewood Suites, testified that he knew of
Freeman and her fellow guest, Rocha-Perez. Dodd stated that Rocha-Perez was present every time
he serviced Freeman’s room. On cross-examination by Rocha-Perez’s attorney, Dodd stated that
Freeman was “overly friendly” and, as such, he kept his distance from her. Dodd felt uncomfortable
around Freeman.

       Detective Joseph Winter testified that he was assigned the task of determining to which
apartment Cantrell took Rocha-Perez, and he located Rocha-Perez’s apartment. On cross-
examination by Freeman’s attorney, Detective Winter testified that when he arrived at the Freeman
residence Freeman was there. She left with Detective Corcoran to give a statement at the Police
Headquarters. She then returned and assisted with the investigation. After they finished on the night
of April 11, Freeman apparently decided not to stay at the residence.

        Detective David Achord testified that he executed a search warrant of the Murfreesboro
apartment on April 22, 2005. He found a bag at the residence, inside which was Freeman’s business
card. On cross-examination by Freeman’s attorney, Detective Achord stated that he also searched
Freeman’s computers for evidence, including e-mails. Among the e-mails found between Freeman
and the victim, a number contained the name “Snookums.” One was dated September 7, 2004, and
one January 20, 2005. Detective Achord further testified that he performed a walk-through of the
residence. He stated that the victim’s car was found parked in the garage with the garage door
closed; Freeman’s car was found parked in the driveway. He also found some trash bags in the


                                                  6
residence, one of which contained a wet bath mat. No trash bags were found in the victim’s car.
Detective Achord also discovered an empty prescription bottle in the residence for hydrocodone,
issued on April 10, 2005, but he found no loose pills in the house. He did, however, note a shotgun
in a separate bedroom, but he stated that they found no shotgun shells in the residence.

        Detective Achord testified that, subsequent to the initial investigation, he accompanied
Freeman to the police precinct where Freeman voluntarily answered questions. Afterwards,
Detective Achord requested she return to the house to walk them through it. She voluntarily agreed
to do so, and the walk-through was tape-recorded. In addressing the Murfressboro search, Detective
Achord stated that they encountered a woman named Beatrice Ruiz. Ruiz spoke “passable English”
until Detective Achord attempted to explain the search warrant process; Ruiz then seemed to have
trouble understanding.

        Dr. Thomas Deering, an Assistant Medical Examiner with Metro Nashville, testified that he
performed an autopsy on Jeffery Freeman on April 12, 2005. Dr. Deering examined the 5'7", 231
pound victim and found scrapes on the victim’s head, blanching of the skin around the neck, ligature
marks around the wrists, a “black-eye,” and bruising and scrapes inside the mouth. The victim also
had “multiple hemorrhages in his scalp,” blunt trauma to the head, and bruises on the front of the left
shoulder and left chest. Based on these injuries, Dr. Deering testified that he determined the cause
of death to be strangulation, either from a ligature or hands. The injuries to the head and face were
not sufficient to cause death, but they may have caused him to lose consciousness. Although it
would only take a matter of seconds for a person to lose consciousness by strangulation, it would
take “several minutes” to kill someone. Dr. Deering testified that, although the victim was found
in wet clothes, there was nothing specific to say he was drowned, and it was theoretically possible.
Any blood present would have likely come from the victim’s “busted lip.”

        Dr. Deering next identified photographs taken at the autopsy, specifically of the ligature
marks and bruising on the neck and wrists. Dr. Deering identified bruising and blanch marks for the
jury. Significantly, Dr. Deering stated that the ligature marks on the wrists happened before death.
Bruising around the wrists means that the victim was bound while he was alive and he struggled
against the ties on his wrists. Additionally, there were scrapes around the wrists indicating resistance
against the bonds. Dr. Deering stated that the bruising around the eye was severe enough to require
“moderate” force or a “pretty good hit.”

         In attempting to estimate the time of death, Dr. Deering explained that he could not precisely
pinpoint the time. He did say, however, that when the victim was found, lividity had set in, and he
had a large blanch mark on his abdomen from lying face down. This indicated the victim had been
dead for a “number of hours” when he was found at 4:00 p.m. on April 11, 2005. Deering estimated
that the victim died “anywhere from the evening of 4/10 to early in the morning on 4/11 . . . plus or
minus probably several hours.” When pressed for a more specific time, Dr. Deering stated that 10:00
p.m. on April 10 to 2:00 a.m. on April ll was the “best” he could do. The victim was definitely dead
for at least eight hours before he was found, “maybe ten, maybe twelve.” Dr. Deering testified that
a spot on the sleeping bag in which the victim was found could be blood, as well as a spot near the


                                                   7
shoulder of the tee-shirt the victim was wearing.

        On cross-examination by Freeman’s attorney, Dr. Deering testified that the time of death was
a rough estimate, and it was possible that the victim died any time between 6:00 p.m. on April 10
and 8:00 a.m. on April 11. Dr. Deering estimated that the victim received four to seven blows to the
head. The blow to the eye required moderate force and could have been accomplished with a fist.
The orbital bones were not broken around the eye. The nose abrasion was also consistent with being
hit with a fist, as was the blow to the top of the head and the one to the forehead. Any one of these
injuries could have caused the victim to lose consciousness.

        The ligature marks around the neck could have been caused by a number of things, including
hands or shirt being pulled up around the neck. In theory, one could stop breathing, and the heart
would continue to beat for a few minutes. Dr. Deering agreed that a number of scenarios posed by
counsel could explain these injuries. First, the victim could have been hit, stunned, bound, and then
strangled. Second, it was also possible that the injuries to the head could have been caused after
death. Third, the victim could have been held under water by the neck. Dr. Deering testified,
however, that while the third scenario was theoretically possible, it was not as plausible because the
wrist marks indicate the victim was still alive, and one who wishes to drown someone would likely
wait until the heart stops or beats so slowly as to be ineffective. Dr. Deering stated “countless” other
scenarios could also explain the facts. The doctor was unable to determine how many attackers were
involved in the killing.

       On cross-examination by Rocha-Perez’s attorney, Dr. Deering testified that the time of death
was an estimate based mostly on the pictures taken at the scene. The bag found on the victim’s head
could have caused the marks on his neck and could have played a role in the victim’s death. The
marks on the wrists were non-specific in that Dr. Deering could not specifically say what type of
object was used to tie up the victim. Dr. Deering agreed that a person could hang himself with mild
force.

        On redirect-examination, Dr. Deering testified that the “butt end” of a shotgun could also be
used to inflict the victim’s injuries. Additionally, a pillowcase or some other covering placed over
the victim might prevent tearing of the skin when hit.

        John Hollands2, a Nashville attorney who handles divorce cases, testified that he met with
the victim on December 29, 2004, to discuss legal rights associated with divorce. Hollands gave the
victim some initial advice, but the victim never returned.

         Lori Estridge, the Pharmacy Manager at Walgreens on Edmondson Pike in Nashville,
testified that she was in charge of records at that particular Walgreens. Estridge testified that, based
on records, Freeman purchased a prescription on April 10, 2005, at 10:01 p.m. On cross-
examination by Freeman’s attorney, Estridge testified that the prescription was for hydrocodone.


       2
           It appears that the witness was actually John Hollins of Hollins, W agster, W eatherly and Rabin.

                                                           8
Estridge described the medications that Freeman purchased at Walgreens beginning in January,
2005, until April 10, 2005: Allegra, an antihistamine; Alprazolam, used to treat anxiety, and side
effects include drowsiness particularly when taken with anti-depressants or pain killers; Lexapro,
used to treat depression; Lipitor, used to treat cholesterol; Ambien, a sleep inducer; Adacan, used
to lower blood pressure; Gabapentin, used to treat seizures; Hydrocodone, a pain killer with a side
effect of drowsiness; birth control patches; Temazepam, used as insomnia therapy; Effexor, an anti-
depressant; and Nitrolpurantin, an antibiotic.

        On redirect-examination, Estridge testified that Freeman’s only listed condition was
hypertension, and there were no medications on the list that would treat bi-polar disorder or
schizophrenia. On recross-examination, Estridge testified that most of the medications were
prescribed by Dr. Nyquist, a psychiatrist. Estridge noted that the hydrocodone prescription was not
prescribed by Dr. Nyquist.

       Officer George Bouton testified that he investigated the crime scene and photographed the
house. Officer Bouton noted that there was no evidence of a forced entry, and he described a number
of photographs he took that were shown to the jury. Noted were trash bags in various locations, a
shotgun, and an English/Spanish electronic translator.

        Tara Cantrell testified that she is married to Anthony (“Tony”) Cantrell, and they have three
children. She met the Freemans through her husband and then worked for Freeman at their house
on Incline Drive beginning in September 2002. The business, Resi-Fax, outgrew the residence and
moved to an office in Brentwood approximately one year later. Once the business moved to the
Brentwood location, the victim began running the company. The victim usually came to work at
8:00 to 8:30 a.m., and he left work at 6:00 or 7:00 p.m. every night. He did not call in sick, and he
occasionally worked on weekends.

        Cantrell testified that she was working the morning of April 11, 2005, when she received a
call from Freeman at around 8:30 or 9:00 a.m. She told Cantrell that the victim was “ill and would
not be in that day.” Cantrell only later learned that the victim was dead. Cantrell testified that she
knew the Freemans were having marital problems, and Freeman told Cantrell that she had moved
out of the house. Cantrell stated that the victim always wore his wedding band.

        Cantrell further testified that her husband was at a motorcycle meet in St. Louis the weekend
of April 9-10, 2005. He returned home Sunday night, April 10, at 11:00 p.m. Cantrell identified a
business card of Freeman’s that the police discovered at the apartment in Murfreesboro. She stated
that the handwritten phone number on the card was Freeman’s cell phone.

        On cross-examination by Freeman’s attorney, Cantrell acknowledged that Freeman’s
participation in the business diminished from 2003 until 2005. Cantrell testified that she noticed
“severe ups and downs” in Freeman’s behavior in 2004, and Cantrell acknowledged picking-up a
prescription for Freeman on one occasion. Cantrell also testified that, after the victim’s death, the
business closed because of his death and “some other things, as well.”


                                                  9
       On cross-examination by Rocha-Perez’s attorney, Cantrell testified that, at some point, she
became aware that Freeman moved out of the house and into a hotel. Cantrell knew that her husband
had been to the hotel, and he reported to Cantrell that a Hispanic man was there with Freeman.
Cantrell further testified about the motorcycle trip her husband took. He began washing the
Freemans’ deck on Thursday, April 7, 2005, and he left for St. Louis on Friday, April 8, 2005. He
returned on Sunday night, April 10, 2005, at 11:00 p.m. Cantrell admitted, however, that she was
not with her husband during this time.

        Cantrell stated that, after the victim’s death, Freeman asked her to pick-up medication and
bring it to the house. Later, Freeman requested that she come to the house and clean up the
bathroom, which she did the weekend of April 16-17, 2005.

         Karen Neal, Freeman’s neighbor, testified that she walked by one of her windows at 7:45
a.m. on April 11, 2005, and noticed Freeman standing on her front porch with a cigarette in her hand.
Freeman was not smoking, and she stood motionless. Neal described Freeman as looking “odd” and
as if “there might possibly be something wrong.” Neal noticed no one else around Freeman. On
cross-examination by Freeman’s attorney, Neal stated that she watched Freeman for approximately
thirty seconds, and Freeman “appeared to be staring down.”

        Hazel Freeman, the victim’s mother, testified that her son would usually call her once a week,
usually on Sunday night around midnight eastern standard time (11:00 p.m. central standard time).
The night of April 10, she received a phone call from Freeman who explained to her that the victim
was “ill.” Freeman told her that she gave the victim medication, and he had gone to bed. Hazel
Freeman did not detect anything out of the ordinary in Defendant Freeman’s voice when they spoke.

        Next, by stipulation, the State read into evidence a stipulation that stated: “it is stipulated that
Martha Freeman signed two (2) business documents on June 24, 2005, and July 7, 2005,
acknowledging that Jeffrey Freeman died on April 10, 2005. The signed stipulation, giving no
further details, was admitted into evidence.

        Officer William Kirby, with the identification unit, testified that he was assigned to 5424
Incline Drive on April 11, 2005, to process evidence. He showed the jury the bag found around the
victim’s head, and he stated that he found the victim wet and lying on the tiled bathroom floor.
Officer Kirby also discovered a white plastic trash bag in the kitchen pantry with a silver ring inside.
On the kitchen floor was a black plastic trash bag containing a telephone cord and latex gloves.
Officer Kirby found in the upstairs hallway another black plastic trash bag with a white plastic trash
bag inside; inside of that bag he found a wet bath mat and a wet pillowcase that appeared bloody.
The pillowcase matched one from the master bedroom. Officer Kirby also found a paper sack
containing six Playboy, Penthouse, and Maxim magazines. Stretched out in the foyer they found a
beach towel. A long-sleeved gray tee-shirt and a mattress were found in the closet of an upstairs
bedroom (“Bedroom 2”). Also in Bedroom 2, Officer Kirby testified that they found a plastic Tiger
Market cup, two Dr. Pepper cans, one Coke can, and one Maxim DVD. In a third bedroom
(“Bedroom 3”) he found a shotgun. In discussing fingerprints, Officer Kirby processed the gun and


                                                    10
soda can for latent fingerprints, but none were discovered.

        On cross-examination by Freeman’s attorney, Officer Kirby testified that he arrived at the
scene at 4:15 p.m. and left between 8:00 and 10:00 p.m. Officer Kirby stated that the shotgun was
found empty, and no shells were discovered in the house. He returned to the house on Friday, April
15, 2005, with another identification officer and Detective Corcoran. There, they collected clothes
on the floor of Bedroom 3 and additional items from the closet in Bedroom 2. They also collected
vacuumings and checked for additional latent fingerprints. Officer Kirby was told that all of this was
done with the consent of Freeman.

        On cross-examination by Rocha-Perez’s attorney, Officer Kirby testified that, as far as he
knew, the police did not “secure” the scene between April 11 and April 15. Officer Kirby stated that
he examined the shotgun for latent prints but none were found – not even partial prints.
Additionally, he stated that he did not process the black plastic bag from the victim’s head, the trash
bag boxes, or a small TV-radio. He was not asked to process the doorknob or doorhandle on the
front door and storm door. He also did not process the security system control pad or the backdoor
for fingerprints.

         On redirect-examination, Officer Kirby explained that he only processed the soda can and
shotgun for fingerprints. Many times, crime scenes do not contain fingerprints for various reasons.
On recross-examination by Freeman’s attorney, Officer Kirby testified that they removed twenty-two
items from the house on April 11 and 15. When he returned on April 15, the house did not look as
if it had been altered in any way. Officer Kirby admitted, though, that he was not at the house
between April 11 and 15.

        Officer Steve Stone, an identification officer, testified that smooth, slick surfaces retain
fingerprints better than porous surfaces. Officer Stone attempted to obtain fingerprints from a
number of objects in the house and testified about those. He was unable to lift prints from two
banquet TV dinner boxes, a Hispanic Maxim magazine, one Playboy magazine, a GQ magazine, a
TV guide, three and one half loaves of bread, digital clock and radio, two TV remote controls, and
a purple Game Boy. Officer Stone was able to obtain “lifts” from a paper plate on the bedside table,
a plastic Tiger Mart cup, a Penthouse magazine, another Playboy magazine, a Diet Coke can, and
a Maxim DVD and DVD cover. Officer Stone testified that it was difficult to obtain fingerprints
from doorknobs as a general rule. On cross-examination by Rocha-Perez’s attorney, Officer Stone
stated that he was not asked to process any of the plastic trash bags or the trash bag boxes found at
the scene.

        Linda Wilson, a fingerprint examiner at the Metropolitan Police Department, testified that
she identified Rocha-Perez’s fingerprints on a Playboy magazine, Penthouse magazine, and a Dr.
Pepper can. Additional fingerprints found at the scene were also matched to Freeman. Wilson
concluded that no prints she examined came from someone other than Freeman or Rocha-Perez. On
cross-examination by Rocha-Perez’s attorney, Wilson stated that she was not given to analyze any
of the plastic bags found at the scene, including the one found on the victim’s head. She also was


                                                  11
not given to analyze the victim’s wallet or a pair of latex gloves. Many of the prints lifted by the
officers lacked sufficient detail to make an identification.

        Detective Brad Corcoran, the lead detective on this case, testified that he arrived on the scene
at 4:15 p.m. on the afternoon of April 11, 2005. Detective Corcoran described Freeman as
“cooperative,” and she allowed the police to search the home. When he first met Freeman she was
“upset,” but that “subsided quickly.” Freeman then became “very matter of fact” and assisted in the
investigation. Detective Corcoran described the scene and noted that the victim was found in a
sleeping bag with a plastic bag around his head. He was still clothed, but his body was wet. Lividity
and rigor mortis had set in on the victim. Detective Corcoran discovered a small amount of blood
around the victim’s collar but none anywhere else on his body. He found blood on a pillowcase
inside of a trash bag. Detective Corcoran stated that “[i]t appeared to be the evidence that was going
to be thrown away after a cleanup.”

          Detective Corcoran testified that he did not request the trash bag found on the victim’s head
be checked for prints because the bag was wet, and wet things are not conducive to chemical
powders. For the same reason, he did not request that the officers check the trash bags for prints.
He also decided not to test the victim’s wallet because there did not appear to be a robbery.
Detective Corcoran also searched a bag found at the scene that contained “lingerie, panties, bustia’,
and . . . sexual type books.” The bag also contained a hotel receipt from the Renaissance Hotel and
a Polaroid of Rocha-Perez in the nude. The police also found a computer that contained downloaded
photographs of Rocha-Perez. Detective Corcoran also discovered a camera at the scene, which
contained a photo of the victim wearing a silver ring that was found in a bag at the scene.

       Detective Corcoran described the suspects’ questioning, specifically stating that officers
placed Rocha-Perez in a ten by ten room with his hands handcuffed in the front. The room had no
windows and three or four chairs and a table. Once Rocha-Perez was removed from the room,
Freeman was taken in. Detective Corcoran testified:

       When Ms. Freeman was entering the room, I had actually pulled the table back just
       a little bit. As she enters in, she crosses the other side of the table and looks down
       and exclaims. She says, very excitedly, what’s that doing here? And I looked down
       and there was a gold man’s wedding band. And I picked it up. And she said, that
       belongs to Jeffery.

Freeman was released after questioning. Detective Corcoran then sent off a number of items to the
Tennessee Bureau of Investigation to be tested.

        On cross-examination by Freeman’s attorney, Detective Corcoran testified that when he
arrived at the scene Freeman was “very upset” and “crying.” When he asked if she would
accompany him to the precinct to answer questions, Detective Corcoran was concerned enough to
offer her a ride. All of the searches were made with Freeman’s consent, and she consented to
fingerprints, blood tests, and a walk-through of the house. Detective Corcoran stated that no shotgun


                                                  12
shells were ever discovered in their search of the house. They did discover, however, an empty
prescription bottle for Freeman filled on April 10, 2005. After outlining the items seized from the
home, Detective Corcoran stated that they did not find any trash bags in the victim’s vehicle similar
to the ones found in the house. Detective Corcoran testified that, when Rocha-Perez was found, he
was wearing a tee-shirt that read, “Boom-Boom’s Boxing School, Sluggers for Chance Not Chumps.
East St. Louis, Missouri.”

         On cross-examination by Rocha-Perez’s attorney, Detective Corcoran testified that the tee-
shirt Rocha-Perez was wearing was purchased at Old Navy. He admitted that, although the house
and crime scene did not appear to be altered, he did not know for sure. Detective Corcoran viewed
the video tape and acknowledged that the tape did not show Rocha-Perez handling the ring later
found. He stated that he did not request the victim’s fingernails be clipped to check for evidence.
In addressing the closet in which Rocha-Perez supposedly lived, Detective Corcoran stated he
initially believed that the mattress and closet were staged. He later learned that Rocha-Perez in fact
had the “run of the house” for a number of hours each day. Additionally, he stated Rocha-Perez was
an illegal alien.

        On redirect-examination, Detective Corcoran testified that Freeman was not crying when he
first approached her, but she then began crying. She only cried for a “few moments” and was then
“very matter of fact.” Freeman did not appear to be drugged, and the offer to drive her to the
precinct was a “courtesy” because she spoke of a “condition.” Freeman appeared to be normal and
coherent when Detective Corcoran spoke to her. Clarifying, Detective Corcoran stated that Rocha-
Perez was not on camera while the police officers were not in the questioning room; the camera was
only turned on when he was with officers.

         Agent Donna Nelson, a forensic scientist with the Tennessee Bureau of Investigation,
testified that she examined a foam mattress, a shotgun, a blanket, clothing, blood samples and
vacuumings. A pair of women’s panties indicated the presence of Freeman’s DNA. A gray tee-shirt
also contained her DNA. A different tee-shirt and ball cap matched Rocha-Perez. A pair of men’s
underwear contained Rocha-Perez’s DNA and the DNA of an unidentified female. On the beach
towel discovered at the scene, Agent Nelson discovered Rocha-Perez’s sperm and Martha Freeman’s
DNA; it was possible that sexual intercourse occurred on the towel. A pair of latex gloves had
“degraded DNA” insufficient to perform tests. Agent Nelson stated that a number of things could
degrade DNA, including washing with plain water, sun exposure, cleaning solution, dirt, incorrect
packaging, or dusting for fingerprints.

        Based on this evidence, the jury found both Defendants guilty of first-degree murder. Both
Defendants were sentenced to life in prison. It is from these judgments that the Defendants now
appeal.

                                            II. Analysis

       On appeal, Freeman alleges that the trial court erred in the following ways: (1) by admitting


                                                 13
a nude photograph of Rocha-Perez; (2) by refusing to allow Freeman to play a recording of a 911
call; and (3) by refusing to grant her motion to sever. Rocha-Perez alleges the trial court erred by
allowing a police officer to testify about a statement Freeman made in violation of the Confrontation
Clause. Both Defendants allege there was insufficient evidence to support their convictions. We
will address both sufficiency of the evidence claims together and the remaining claims in turn.

                                  A. Sufficiency of the Evidence

        When an accused challenges the sufficiency of the evidence, this Court’s standard of review
is whether, after considering the evidence in the light most favorable to the State, “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 (1979) (emphasis in original); see Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389,
392-93 (Tenn. Crim. App. 1999).

         In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions
concerning the credibility of witnesses, the weight and value to be given the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury see
       the witnesses face to face, hear their testimony and observe their demeanor on the
       stand. Thus the trial judge and jury are the primary instrumentality of justice to
       determine the weight and credibility to be given to the testimony of witnesses. In the
       trial forum alone is there human atmosphere and the totality of the evidence cannot
       be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.
1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a
verdict of guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).



                                                  14
        “‘Circumstantial evidence’ differs from direct evidence, and consists of proof of collateral
facts and circumstances from which the existence of the main fact may be deduced according to
reason and common experience of mankind.” Webb v. State, 203 S.W. 955, 955 (Tenn. 1918);
accord Bishop v. State, 287 S.W.2d 49, 50 (Tenn. 1956). The Defendants argue, and we agree, that
this case was based on circumstantial evidence.

        A conviction may be based entirely on circumstantial evidence where the facts are “so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and the
Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). Stated differently, “[B]efore
an accused may be convicted of a criminal offense based upon circumstantial evidence alone, the
facts and circumstances ‘must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant.” State v. Crawford, 470 S.W.2d 610, 612 (1971). “A
web of guilt must be woven around the defendant from which he cannot escape and from which facts
and circumstances the jury could draw no other reasonable inference save the guilt of the defendant
beyond a reasonable doubt.” Id. The jury decides the weight to be given to circumstantial evidence,
and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).

        In the light most favorable to the State, the following evidence was presented: the Defendants
began a relationship in 2004. This relationship continued throughout the fall and winter of 2004
after Freeman moved out of the marital home and into an extended stay hotel in Brentwood, where
she stayed with Rocha-Perez. On December 29, 2004, the victim spoke with a divorce attorney
about his legal rights, but it is unclear if Freeman ever knew about this. Sometime in December
2004, Freeman’s friend, Tony Cantrell, moved Rocha-Perez out of the extended stay hotel and into
an apartment in Murfreesboro. Cantrell concluded that the relationship between the two had ended.
Sometime thereafter, Freeman returned to the marital home. Rocha-Perez and Freeman restarted the
relationship, and Rocha-Perez moved into the Freeman house without the victim’s knowledge.
Rocha-Perez had the “run of the house” while the victim worked long hours at the Freemans’
business.

        Tony Cantrell began work outside the Freemans’ home on the Thursday, April 7. He did not
finish because of rain, and he advised the Freemans that he planned to return Monday, April 11, after
work, to finish. On Sunday, April 10, at 10:00 p.m., Freeman picked up a prescription for
hydrocodone, a pain killer with a side effect of drowsiness. One hour later, at 11:00 p.m., Freeman
called the victim’s mother to explain to her that the victim would not be calling that night because
he was “ill.” At 7:45 a.m. on April 11, a neighbor saw Freeman standing on her front porch with a
cigarette in hand. Freeman appeared “very still” and “rather unusual.” A short time later, at 8:00
or 8:30 a.m., Freeman called Resi-fax to report that the victim would not be at work that day.

       At 3:45 p.m., Rocha-Perez was seen running through the neighborhood and into a house
under construction. At 4:00 p.m. on April 11, Freeman went to her neighbor’s house, and the
neighbor called 911. Immediately after she pounded on Beverly’s door, Freeman appeared to be “in


                                                 15
shock,” “panicky,” and “anxious.” A short time later, however, Freeman was much calmer, and
Beverly recalled that she never cried. The first emergency responders arrived at the scene and
described Freeman as “excited,” “agitated,” “crying,” “flailing about with her hands and that sort of
thing,” and “hysterical.” When questioned, Freeman indicated that the incident only occurred twenty
to thirty minutes before the emergency responders arrived.

        The police, firefighters, and medical personnel discovered the victim’s body in the master
bathroom. The victim was wet, inside of a sleeping bag, and on his stomach. Medical testimony
explained that certain marks on the victim’s body indicated that he had been there for some time, at
least over eight hours. There were additional marks on the victim’s wrists that would have been
made while he was still alive and able to struggle against the restraints. There was evidence of four
to seven blows to the victim’s head. The victim was ultimately killed by strangulation, which would
have required “several minutes” of pressure. Virtually no blood was found at the scene except for
that under the bag around the victim’s head.

       The police found evidence of a clean-up also in the house. A number of trash bags were
discovered containing a wet pillow case, a wet bath mat, latex gloves, and a phone cord.
Additionally, a beach towel was discovered spread out in the living room floor, which contained
Rocha-Perez’s sperm and Freeman’s DNA. There was no evidence of a forced entry to the home.

        At 6:30 p.m. on April 11, the police discovered, upon information from witnesses, Rocha-
Perez in the attic of a house under construction two streets from the Freemans’ home. The officers
arrested Rocha-Perez and took him to the police station where they questioned him. Later, in two
separate business documents, Freeman signed that the victim died on April 10, 2005.

       First degree murder is a premeditated and intentional killing of another. T.C.A. § 39-13-
202(a)(1) (2006). The Tennessee Code Annotated defines premeditation:

        ‘Premeditation’ is 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 to be capable
        of premeditation.

T.C.A. § 39-13-202 (d) (2006). Additionally, the Tennessee Supreme Court found the following
circumstances sufficient for supporting a finding of premeditation: the use of a deadly weapon on
an unarmed victim; the particular cruelty of a killing; the defendant’s threats or declarations of intent
to kill; the defendant’s procurement of a weapon; any preparations to conceal the crime undertaken
before the crime is committed; destruction or secretion of evidence of the killing; and a defendant’s
calmness after a killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Furthermore, “evidence
of repeated blows is relevant to establish premeditation, although this evidence alone is not sufficient


                                                   16
to establish premeditation.” State v. Sims, 45 S.W.3d 1, 8 (Tenn. 2001).

         In our view, the evidence, while almost entirely circumstantial, supports both convictions for
first degree premeditated murder. We first address the “intentional killing” element. The State
presented evidence that the victim was tied up while he was still alive, and he struggled against those
restraints. The victim was ultimately killed, though, by one or both of the Defendants strangling him
either by the hands or a ligature. This would have taken several minutes. This evidence alone is
sufficient for a rational jury to conclude beyond a reasonable doubt that the victim was “intentionally
killed.”

        Next, we address whether there was sufficient evidence that each defendant killed the victim.
The State presented evidence through the medical examiner that the victim died sometime during
the night of April 10, to the morning of April 11. Freeman later stated in business documents that
the victim died on April 10, 2005. This indicates that Freeman knew when the victim was killed.
The medical examiner testified that the victim was 5'7", weighed 231 lbs., and his hands were tied
prior to his death. This would support a theory that the victim was either tied up at gunpoint or that
one defendant held the victim down while the other tied his wrists. Additionally, Freeman called
the victim’s mother at 11:00 p.m. on April 10, 2005, to tell her the victim was “ill” and unable to call
that night. This supports an inference that Freeman participated in the killing and attempted to cover
it up: Freeman knew that the victim’s mother expected him to call at 11:00 p.m. central standard
time, and, if he did not, she might get suspicious or worried and contact the police. If the police were
notified, their attempts to clean-up the murder would be thwarted. Similarly, Freeman called Resi-
Fax the next morning presumably in an attempt to gain more time to dispose of the body and clean
up the scene.

        Freeman also knew that Tony Cantrell was to return to the house on the afternoon of April
11. A rational jury could conclude that the two Defendants realized they were running out of time
to finish the clean-up. The Defendants split up, with Rocha-Perez going his own way and Freeman
going to Beverly’s house to call the police. Rocha-Perez was subsequently discovered fleeing from
the scene of the crime. Finally, there was no evidence of a forced entry. These facts, taken together,
support the jury’s finding that both Defendants participated in the killing of the victim; we can see
no other reasonable hypothesis.

        The Defendants both argue that the facts could potentially support a one killer theory: one
individual surprises, hits, and knocks the victim unconscious. The individual then ties the victim
and strangles him. Taking only the evidence on the victim’s body, this scenario might be plausible.
However, considering the rest of the evidence, we find this scenario unreasonable. It is highly
unlikely that a single killer put the pillowcase on the victim’s head before knocking him unconscious
if he was not bound first. In our view, the binding must have occurred first, which would have
required two people. Additionally, both Defendants’ actions after the killing make this
unreasonable: the clean-up, the phone calls, Rocha-Perez’s flight from the scene, and Freeman’s
indication that the murder occurred twenty to thirty minutes before the 911 call.



                                                  17
        Finally, we address whether the Defendants acted with premeditation. One consideration a
jury may use in that determination is that the victim was killed with particular cruelty, see Bland, 958
S.W.2d at 660: the victim was bound, beaten about the head, and strangled. The marks on the
victim’s wrist indicate that the victim struggled against his bonds before he was killed. This means
that some period of time elapsed after they bound the victim until his ultimate demise. Additionally,
a rational jury could have concluded that Freeman was calm after the killing: the victim was killed
the night of April 10, and Freeman calmly called the victim’s mother to tell her he was “ill.”
Freeman was seen standing on the front porch holding a cigarette at 7:45 a.m. the following morning,
and Freeman called Resi-Fax to advise them the victim would not be at work that day. Multiple
witnesses testified that Freeman went through periods of hysteria and calmness.

         Additionally, we conclude that the presence of the beach towel at the scene supports a finding
of premeditation. As the State argued at trial, and as the jury was free to determine, the presence of
the towel on the floor could indicate that the defendants had sex after they killed the victim. This
scenario places both Defendants at the scene of the crime and provides circumstantial evidence that
the Defendants were behaving calmly after killing the victim, which further supports a finding of
premeditation. Finally, the evidence at trial showed that Rocha-Perez and Freeman’s relationship
was intimate, and a jury could have therefore concluded that they had a motive kill the victim. These
facts, taken together, support a finding of premeditation for both Defendants.

        Although the Defendants strenuously argue that the web of facts is not so tight so as to not
allow another reasonable hypothesis, we disagree. There is sufficient evidence to support the first
degree murder convictions for both Freeman and Rocha-Perez. We conclude that a “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 (1979); see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d
771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). The Defendants are
not entitled to relief on this issue.

                                      B. Photo of Rocha-Perez

        Next, Freeman argues that the trial court erred in allowing the State to introduce a photograph
of Rocha-Perez found in the Freemans’ house. The photo is of Rocha-Perez mostly nude, exhibiting
his genitalia. Freeman argues that the photograph is not relevant, and, if relevant, the relevance is
not substantially outweighed by the danger of unfair prejudice or confusion of the issues. See Tenn.
R. Evid. 402, 403.

       Under Rule 401, “‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Rule 402 states, “All relevant evidence is
admissible except as provided by the Constitution of the United States, the Constitution of
Tennessee, these rules, or other rules or laws of general application in the courts of Tennessee.
Evidence which is not relevant is not admissible.” Finally, Rule 403 states, “Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair


                                                  18
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” “The decision regarding the admissibility
of photographs pursuant to these Rules lies within the sound discretion of the trial court and will not
be overturned on appeal absent a clear showing of an abuse of that discretion.” State v. Young, 196
S.W.3d 85, 105 (Tenn. 2006) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978)).

       First, we conclude that Freeman has not shown the trial court abused its discretion in finding
the photograph relevant. At issue was the killing of Freeman’s husband, and the existence of an
intimate relationship between Freeman and Rocha-Perez provides a motive for that killing. The
photograph helps prove the existence of the intimate relationship. Thus, the photograph is relevant
under Rule 401 and admissible under Rule 402.

         Next, we conclude that Freeman has not shown that the trial court abused its discretion in
concluding that the probative value was substantially outweighed by a “danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Freeman argues that the photograph served to
inflame the jurors and was cumulative because no one denied the existence of a sexual relationship.
After a review of the photograph, we conclude it is marginally inflammatory. We agree with the trial
court who stated, “it’s not as graphic as you might think it would be.” Additionally, a motive for the
killing is very important to the case. The additional fact that the photograph was found in the house
reinforces this point. We conclude that the trial court committed no abuse of discretion in making
the Rule 403 determination, and, as such, Freeman is not entitled to relief on this issue.

                                            C. 911 Tapes

         Freeman next argues that the trial court erred in preventing her from introducing a tape of the
911 call made from Beverly’s house. The trial court ruled the tape was hearsay not subject to any
exception, and, thus, the trial court excluded the tape. See Tenn. R. Evid. 801, 802. Freeman
initially challenges the determination that the tape is not subject to any exception, arguing for the
application of Rule 803(2): the excited utterance exception. Alternatively, Freeman argues that the
trial court’s decision prevented her from asserting a defense, in violation of Sixth Amendment to the
United States Constitution. We will first address the excited utterance exception, which, as noted
above, requires Freeman to show that the trial court committed a clear abuse of discretion. State v.
Young, 196 S.W.3d 85, 105 (Tenn. 2006)

        Generally, out of court statements introduced to prove the truth of the matter asserted are
inadmissible as hearsay. Tenn. R. Evid. 801, 802. The excited utterance exception allows hearsay
to be admitted when the statement is “[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.” Tenn. R.
Evid. 803(2). The Tennessee Supreme Court has quoted the rationale for admitting such statements
as follows:

       First, since this exception applies to statements where it is likely there was a lack of


                                                  19
       reflection-and potential 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. . . . 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.

State v. Gordon, 952 S.W.2d 817, 819-20 (Tenn. 1997) (quoting Cohen, Paine & Sheppeard,
Tennessee Law of Evidence, § 803(2).1 at 532 (3d ed.1995)). Thus, the following requirements are
needed: (1) “there must be a startling event or condition;” (2) the statement [must] ‘relate to’ the
startling event or condition;” and (3) “the statement [must] be made while the declarant is under the
stress or excitement from the event or condition.” Id. at 820. “[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.” Id. (quoting State v. Smith, 857
S.W.2d 1, 9 (Tenn.), cert. denied, 510 U.S. 996 (1993)). We are to consider the time interval
between the event and the statement “and the nature and seriousness of the event or condition; the
appearance, behavior, outlook, and circumstances of the declarant, including such characteristics as
age and physical or mental condition; and the contents of the statement itself, which may indicate
the presence or absence of stress.” Id.

         After consideration of these factors, we conclude that Freeman has not shown the trial court
abused its discretion. Considering the fact that the victim was killed during the night of April 10,
by Freeman’s own statement, and Freeman did not make her statement until roughly 4:00 p.m. on
April 11, the time interval and the opportunity for fabrication weigh strongly against the sincerity
of the statement. Although there is a startling event, and the statement relates to the event, we cannot
conclude that Freeman was under the stress or excitement of the event at the time the statement was
made. This is merely a self-serving statement made between twelve and twenty hours after the
victim was killed. Beverly’s testimony of Freeman’s behavior and characteristics support our
conclusion: although Freeman appeared very exited when she first arrived at the house, she quickly
calmed down and never cried. She then returned to a state of hysteria when the authorities arrived,
and subsequently calmed down again.

        Alternatively, Freeman argues that the statement was necessary for her to present a defense.
Exclusions of evidence may violate the Due Process Clause of the Fourteenth Amendment of the
United States Constitution even if the exclusions comply with rules of evidence. State v. Flood, 219
S.W.3d 307, 316-17 (Tenn. 2007). Principles of due process require that a defendant in a criminal
trial have the right to present a defense and to offer testimony. See Chambers v. Mississippi, 410
U.S. 284, 294 (1973); State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000). In Washington v. Texas,
388 U.S. 14 (1967), the United States Supreme Court stated:

       The right to offer the testimony of witnesses, and to compel their attendance, if
       necessary, is in plain terms the right to present a defense, the right to present the
       defendant’s version of the facts as well as the prosecution’s to the jury so it may


                                                   20
        decide where the truth lies. Just as an accused has the right to confront the
        prosecution’s witnesses for the purpose of challenging their testimony, he has the
        right to present his own witnesses to establish a defense. This right is a fundamental
        element of due process of law.

388 U.S. at 19.

          The right to offer testimony, however, is not absolute: “In the exercise of this right, the
accused, as is required of the State, must comply with established rules of procedure and evidence
. . . .” Chambers, 410 U.S. at 302. Rules of procedure and evidence are designed to assure fairness
and reliability in the criminal trial process. Id. So long as the rules of procedure and evidence are
not applied arbitrarily or disproportionately to defeat the purposes they are designed to serve, these
rules do not violate a defendant’s right to present a defense. Flood, 219 S.W.3d at 317 (citations
omitted). Because “state and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials,” Scheffer, 523 U.S. at 308, “[a]n evidentiary
ruling ordinarily does not rise to the level of a constitutional violation,” State v. Rice, 184 S.W.3d
646, 673 (Tenn. 2006). In determining whether an exclusion of evidence rises to the level of a
constitutional violation, we are directed to consider the following: (1) Whether the excluded
evidence is critical to the defense; (2) Whether the evidence bears sufficient indicia of reliability; and
(3) Whether the interest supporting the exclusion of evidence is sufficiently important. Flood, 219
S.W.3d at 317 (citations omitted).

        Our first inquiry is whether the excluded evidence is critical to the defense. Freeman wished
to introduce a 911 tape on which she stated that, in effect, Rocha-Perez killed her husband. We tend
to agree that, in theory, eyewitness testimony to her husband’s murder is critical to Freeman’s
defense. We cannot conclude, however, that the testimony “bears sufficient indicia of reliability.”
Id. In fact, the testimony is a wholly unreliable self-serving statement made by the Defendant many
hours after the crime occurred. Similarly, we conclude that the interest supporting the exclusion of
the evidence is sufficiently important. That interest is the right of cross-examination. Here, Freeman
was merely trying to testify without being subject to cross-examination. The trial court did not err
in excluding the testimony. Freeman is not entitled to relief on this issue.

                                             D. Severance

        Freeman next argues that the trial court erred in refusing to sever the Defendants’ trials. The
Tennessee Rules of Criminal Procedure address the severance of defendant in Rules 8, 13, and 14.
A trial court should grant a severance of defendants if:

        (i) before trial, it is deemed necessary to protect a defendant’s right to a speedy trial
        or it is deemed appropriate to promote a fair determination of the guilt or innocence
        of one or more defendants; or

        (ii) during trial, with consent of the defendant to be severed, it is deemed necessary


                                                   21
       to achieve a fair determination of the guilt or innocence of one or more defendants.

Tenn. R. Crim. P. 14(c)(2)(i)-(ii); accord State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App.
2000). This decision rests within the sound discretion of the trial court. Howell, 34 S.W.3d at 491
(citing State v. Coleman, 619 S.W.2d 112 (Tenn. 1981)). “This court cannot interfere with the
exercise of the discretion afforded the trial court absent clear abuse.” Id. (citing Coleman, 619
S.W.2d at 116). “The test is whether or not the defendant was clearly prejudiced in his defense by
being jointly tried with his co-defendant.” Id. (citing State v. Wiseman, 643 S.W.2d 354 (Tenn.
Crim. App. 1982)).

        Freeman claims prejudice from the fact that she was prevented from asserting her defense
– that Rocha-Perez was the sole killer. See generally State v. Flood, 219 S.W.3d 307, 315-16 (Tenn.
2007) (addressing right to present a defense under the Fourteenth Amendment to the United States
Constitution). Specifically, the trial court did not allow Freeman to introduce the 911 tape on which
she stated that Rocha-Perez killed the victim or a statement of Rocha-Perez stating where he found
the victim’s ring. Since we have already determined that the 911 tape was properly excluded,
Freeman was not “clearly prejudiced” by the trial court’s decision not to sever. The tape would not
be admissible even if Freeman had been tried separately.

        With respect to Rocha-Perez’s statement, we similarly conclude that Freeman was not clearly
prejudiced. Rocha-Perez was questioned in a police interrogation room. The police removed him
from the room, and, as a table was being moved, a man’s gold ring was discovered. Freeman entered
and identified the ring as the victim’s. Rocha-Perez returned to the room and, after questioning on
the subject, he admitted he found the ring. The fact that he found the ring was not disclosed to the
jury because Rocha-Perez had not yet been Mirandized when he made the statement, and the
statement was excluded. Freeman wished to introduce this statement to negate the “inference the
State clearly wanted the jury to find [] that Ms. Freeman had given the ring to Mr. Rocha-Perez after
the killing of Mr. Freeman as a trophy of some sort.” In addressing this issue, the trial court
determined that Freeman made no showing that Rocha-Perez would testify to what he stated at the
police station if the trials were severed. Additionally, the trial court did not agree that the alleged
inference is what the State intended or what the jury actually would infer.

        We agree with the trial court, and Freeman has not shown clear abuse. In our view, the
alleged inference is very tenuous at best. Additionally, there is no reason to believe that Rocha-Perez
would testify at Freeman’s trial to what he stated or where he found the ring if the trials were
severed. There is no clear prejudice to Freeman because there was a fair determination of her guilt
or innocence. See Tenn. Crim. P. 14(c). Freeman is not entitled to relief on this issue.

                                         E. Confrontation

         Finally, Rocha-Perez alleges that the trial court erred in allowing Detective Corcoran to
testify that Martha Freeman identified the gold ring as the victim’s in violation of Crawford v.
Washington, 541 U.S. 36, 50 (2004), and Bruton v. United States, 391 U.S. 123 (1968). Although


                                                  22
not specifically stated as such, Rocha-Perez’s argument, in our view, is a complaint about the trial
court’s decision not to sever the Defendants. See State v. Ruby Breeden, Billy Nicely, and Marsha
Sutton, No. E2004-01512-CCA-R3-CD, 2005 WL 3199280, at *8 (Tenn. Crim. App., at Knoxville,
Nov. 20, 2005) (treating Bruton and Crawford issues under motion to sever). We review decisions
concerning permissive joinder and severance of offenses pursuant to Rules of Criminal Procedure
8(b), 8(c), 14(b), and 14(c) under an abuse of discretion standard. Spicer v. State, 12 S.W.3d 438,
442 (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).3

                                           1. Crawford v. Washington

        In Crawford v. Washington, the United States Supreme Court stated that “the principal evil
at which the Confrontation Clause was directed was the . . . use of ex parte examinations as evidence
against the accused.” 541 U.S. 36, 50 (2004). To that end, the Court established that testimonial
hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity
for cross-examination. Id. at 68. In State v. Maclin, the Tennessee Supreme Court stated that,
“[a]fter Crawford, the threshold question in any Confrontation Clause case is whether a challenged
statement is testimonial or nontestimonial.” 183 S.W.3d 335, 345 (Tenn. 2006). “If it is testimonial,
the statement is inadmissible unless (1) the declarant is unavailable and (2) the accused had a prior
opportunity to cross-examine the declarant.” Id. If the statement is not testimonial, then we are free
to apply Tennessee’s hearsay law to determine the statement’s admissibility. State v. Lewis, 235
S.W.3d 136, 143 (Tenn. 2007).

       Thus, our first objective is determining if Freeman’s statement is “testimonial.” In Maclin,
the Tennessee Supreme Court adopted a non-exhaustive list of factors to consider:

         (1) whether the declarant was a victim or an observer; (2) whether contact was
         initiated by the declarant or by law-enforcement officials; (3) the degree of formality
         attending the circumstances in which the statement was made; (4) whether the
         statement was given in response to questioning, whether the questioning was
         structured, and the scope of such questioning; (5) whether the statement was recorded
         (either in writing or by electronic means); (6) the declarant’s purpose in making the
         statements; (7) the officer’s purpose in speaking with the declarant; and (8) whether
         an objective declarant under the circumstances would believe that the statements
         would be used at a trial.

183 S.W.3d at 345. The United States Supreme Court helped to further distinguish between
testimonial and nontestimonial statements as follows:

         Statements are nontestimonial when made in the course of police interrogation under
         circumstances objectively indicating that the primary purpose of the interrogation is


         3
          W e note, initially, that the statement was first presented under the exited utterance exception to the hearsay
rule. See Tenn. R. Evid. 801, 802, 803(2). This issue is not challenged.

                                                           23
       to enable police assistance to meet an ongoing emergency. They are testimonial
       when the circumstances objectively indicate that there is no such ongoing emergency,
       and that the primary purpose of the interrogation is to establish or prove past events
       potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 814, —, 126 S. Ct. 2266, 2273-73 (2006). Pursuant to this guidance,
a 911 call made during an attack is not testimonial, Id. at 2276-77, but a response to police
questioning after an attack is testimonial. Id. at 2277-78 (consolidated cases). The differences being
as follows: (1) one is a description of a present or ongoing emergency and one is a description of past
emergency or occurrence; and (2) one is informal questioning from a 911 operator and the other is
formal questioning from an officer. Id. at 2276-77.

        Based on these descriptions of the difference between testimonial and nontestimonial
statements, we conclude that the trial court did not err in allowing Detective Corcoran to testify that
Freeman identified the ring as her husband’s because the statement was not testimonial. The
following factors support the conclusion that the statement was nontestimonial under Maclin: (1) the
declarant was an observer as opposed to a victim; (2) the contact was originally initiated by Freeman,
not the police; (3) although the statement was made in an interrogation room, the interview had not
yet begun and thus the situation was not yet formal; (4) the statement was made spontaneously, not
a result of any type of questioning; and (5) there is no evidence the statement was recorded. It is
unclear what purpose Freeman had in making the statement, and it appears to be a simple
spontaneous observation. Finally, factors (7) and (8) weigh in favor of finding the statement
testimonial because the officer’s original purpose was to obtain information about a homicide and
an objective declarant would expect the statement to be used at trial.

       Under Davis, we conclude Freeman’s statement to be more akin to a 911 call than police
questioning because Freeman was conveying a present sense observation. Additionally, Freeman’s
statement was not a response to a question, much less formal questioning by the police; by mere
coincidence she saw the ring as she entered the room. Thus, we conclude that the statement was
“nontestimonial;” and the rule of Crawford v. Washington was not offended.

                                     2. Bruton v. United States

        Under Bruton v. United States, the United States Supreme Court ruled that, at a joint trial,
it was error to allow into evidence a co-defendant’s statement that implicates the defendant without
the co-defendant testifying. 391 U.S. at 126; see Pettyjohn v. Newberry, 2000 U.S. App. LEXIS
17532 (6th Cir.2000) (“the prohibition applies not only to a non-testifying codefendant’s
confessions, but also to statements made by the codefendant that implicate the defendant”) (citing
United States v. Bartle, 835 F.2d 646, 651 (6th Cir. 1987)). This would be a violation of the
defendant’s constitutional rights under the Confrontation Clause of the Sixth Amendment. Bruton,
391 U.S. at 126. In analyzing this issue, the trial court determined that “there’s no Bruton problem
because there was no statement about Rocha-Perez made by Ms. Freeman,” and the statement did
not implicate Rocha-Perez. See Dorsey v. State, 568 S.W.2d 639, 642 (Tenn. Crim. App. 1978)


                                                  24
(“[T]he rule in Bruton does not apply to confessions which do not implicate the non-confessing
defendant . . . .”) (citing United States v. Alvarez, 519 F.2d 1052 (3d Cir. 1975), cert. denied,
Hernandez v. United States, 423 U.S. 914 (1975); United States v. Gray, 462 F.2d 164 (5th Cir.
1972), cert. denied, 409 U.S. 1009 (1972); White v. State, 497 S.W.2d 751 (Tenn. Crim. App. 1973);
Taylor v. State, 493 S.W.2d 477 (Tenn. Crim. App. 1972); Maxwell v. State, 441 S.W.2d 503 (Tenn.
Crim. App. 1969); ABA Standards Relating to Joinder and Severance § 2.3(a)(ii) (1967)).

       The issue before this Court is whether the statement implicates Rocha-Perez. As the trial
court found, the statement on its face does not mention Rocha-Perez. It is merely Freeman’s
response to the appearance of the victim’s ring in the interrogation room. Only when introduced
with surrounding facts – Rocha Perez was in the room prior to the finding of the ring; the ring was
not in the room before Rocha-Perez arrived – does this statement implicate Rocha-Perez’s
involvement in the murder of the victim.

         In Richardson v. Marsh, the United States Supreme Court took up the question of whether
statements incriminatory only by “evidentiary linkage” or “contextual implication” violate the
Confrontation Clause. 481 U.S. 200, 206 (1987). The facts of Marsh are generally these: Martin,
Williams and Marsh agreed to commit a robbery; Williams’s confession was introduced at his joint
trial with Marsh, and the statement explained that Martin picked him up and drove him to the scene;
on the way, they discussed the robbery and Martin stated that “he would have to take them out after
the robbery.” Id. at 202-03. The only issue with respect to Marsh was whether she had the specific
intend to participate in the killings; thus the statement in the confession was indirect evidence that
Marsh was aware of the intent of Martin only later given context when Marsh testified she was in
the car on the ride to the scene. Id. at 203. Marsh maintained that the radio was too loud for her to
hear any conversation between Martin and Williams. Id.

        The Court stated, “In Bruton, the codefendant’s confession ‘expressly implicat[ed]’ the
defendant as his accomplice.” Id. at 208 (citing Bruton, 391 U.S. at 124, n. 1). “By contrast, in this
case the confession was not incriminating on its face, and became so only when linked with evidence
introduced later at trial (the defendant’s own testimony).” Id. The Court thus ruled that the
admission of the confession, accompanied by a limiting instruction, did not constitute error. Id. at
211.

         In dissent, Justice Stevens argued that the confession was “powerfully incriminating,” and
“of critical importance because it was the only evidence directly linking respondent with the specific
intent, expressed before the robbery, to kill the victims afterwards.” Id. at 214-15. Further, “If
Williams had taken the witness stand and testified, respondent’s lawyer could have cross-examined
him to challenge his credibility and to establish or suggest that the car radio was playing so loudly
that Marsh could not have overheard the conversation between the two men from the back seat.”
Id. at 215-16.

      We conclude Marsh is instructive in almost every respect. As in Marsh, the statement from
Freeman only implicates Rocha-Perez with “evidentiary linkage” or “contextual implication” from


                                                 25
Detective Corcoran. Thus, the trial court’s ruling on this issue was not in error. We note, however,
that the Marsh case specifically states that the trial court gave a limiting instruction to the jury that
they could only consider Williams’s confession against Williams, not Marsh. No such instruction
was given in this case. We conclude, though, that the failure to give a limiting instruction was
harmless for a number of reasons. First, Rocha-Perez failed to request a limiting instruction.
Pursuant to United States v. Sherlin, the lack of a limiting instruction when one was not requested
is not reversible error in this instance. 67 F.3d 1208, 1216 n.1 (6th Cir. 1995) (“We note that the
record in this case does not indicate that the district court gave a limiting instruction to the jury
regarding the evidentiary scope of Teague’s statement. We do not, however, find the lack of
instruction problematic in this case because Sherlin did not request such an instruction. See United
States v. Locklear, 24 F.3d 641, 646 n. 2 (4th Cir.) (noting that defendant waives right to limiting
instruction if he fails to ask for one), cert. denied, 513 U.S. 909, 115 S. Ct. 278, 130 L. Ed.2d 195
(1994)”). Second, we find the evidence was not necessary to convict Rocha-Perez as described in
the sufficiency of the evidence section above. Finally, we see the right to exclude the evidence in
this case as illusory: had Rocha-Perez been successful in obtaining a severance, an objection to the
evidence at his trial would have been based on hearsay. The trial court ruled that there was an
exception to the hearsay rule, thus the evidence would likely have been admitted against him.

        Considering the above cited cases, we conclude Rocha-Perez had not shown that the trial
court erred in refusing to grant a motion to sever.

                                           III. Conclusion

        After a thorough review, we conclude that there was sufficient evidence to support the jury’s
findings, the photograph of Rocha-Perez was not admitted in error, the 911 tape was not precluded
in error, the trial court did not err in refusing to sever the Defendants’ trials, and the Confrontation
Clause was not offended by the introduction of Freeman’s statement identifying the victim’s ring.
As such, we affirm the judgments of the trial court.


                                                ________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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