        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 29, 2011

         STATE OF TENNESSEE v. DEBRA ELAINE MOORE KIRK

                    Appeal from the Circuit Court for Cocke County
                        No. 9080 Ben W. Hooper, II, Judge




               No. E2010-01390-CCA-R3-CD - Filed November 28, 2011


The defendant, Debra Elaine Moore Kirk, stands convicted of criminally negligent homicide,
a Class E felony, and aggravated child abuse, a Class A felony. The trial court sentenced her
as a Range I, standard offender to an effective sentence of 25 years in the Tennessee
Department of Correction. In a previous appeal, this court ruled that the defendant waived
all issues other than sufficiency of the evidence by failing to file a timely motion for new trial
and affirmed the judgments of the trial court. See State v. Debra Elaine Moore, No.
E2007-00533-CCA-R3-CD (Tenn. Crim. App., Knoxville, June 23, 2008). A post-
conviction court granted post-conviction relief in the form of a delayed appeal. In this
appeal, the defendant argues that the trial court erred by allowing certain testimony from the
medical examiner and that the evidence was insufficient to support her convictions. Our
previous determination that the evidence was sufficient to support the defendant’s
convictions is the law of the case, and we do not consider this issue. Following our review
of the remaining issues, we conclude that the trial court committed no reversible error and
affirm the judgments of the trial court.

             Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH
and D. K ELLY T HOMAS, J R., JJ., joined.

Carter S. Moore, Newport, Tennessee, for the appellant, Debra Elaine Moore Kirk.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; James B. Dunn, District Attorney General; and Amanda H. Inman, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                On April 21, 2003, the Cocke County grand jury charged the defendant, Debra
Elaine Moore Kirk, with first degree felony murder and aggravated child abuse. Following
a jury trial, she was convicted of criminally negligent homicide and aggravated child abuse.
See State v. Debra Elaine Kirk, No. E2004-01263-CCA-R3-CD, slip op. at 1 (Tenn. Crim.
App., at Knoxville, Sept. 30, 2005). The trial court sentenced her to an effective sentence
of 25 years. Id. The defendant appealed, and this court found reversible error in the trial
court’s admission of evidence of the defendant’s prior drug use. Id.

               The defendant’s case proceeded to a second jury trial in 2006, and the jury
again convicted the defendant of criminally negligent homicide and aggravated child abuse.
See Debra Elaine Moore, slip op. at 1. The defendant filed an untimely motion for new trial
and untimely notice of appeal, resulting in waiver of appellate review of all issues other than
sufficiency of the evidence. Id., slip op. at 2. This court concluded that the evidence was
sufficient to sustain her convictions and affirmed. Id., slip op. at 4.

               The defendant filed a pro se petition for post-conviction relief on December
8, 2009, alleging, among other things, that she was deprived of the effective assistance of
counsel at trial. She filed an amended petition through counsel on April 28, 2010, adding a
claim of ineffective assistance of counsel based on trial counsel’s failure to file a timely
motion for new trial. The post-conviction court granted post-conviction relief in the form
of a delayed appeal. The defendant filed a timely notice of appeal from her trial judgments
following the post-conviction court’s ruling.

              In our discussion of the sufficiency of the evidence in State v. Debra Elaine
Moore, this court summarized the facts of the case as follows:

                     The evidence presented during trial reflects that the
              defendant purchased OxyContin pills on July 22, 2002. The
              victim’s father crushed the pills in their residence, and he and
              the defendant ingested the drug. Later that evening, the
              three-month-old victim awoke and would not go back to sleep.
              The defendant told police that she tried to get him to go back to
              sleep but was unsuccessful. Therefore, she rubbed the victim’s
              wet pacifier in the crumbs of the crushed drugs and put the
              pacifier back in the child’s mouth. The child then went back to
              sleep. The victim’s father woke the defendant the next morning
              because he was screaming that the baby was not breathing.
              They called 9-1-1, and the victim was taken to the hospital after

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               paramedics were unsuccessful in reviving the child. The victim
               died two days later. The medical examiner noted severe damage
               to the victim’s kidneys and brain consistent with the ingestion
               of OxyContin.

                      The defendant argues that the evidence and trial
               testimony are inconsistent. Specifically, she contends that the
               State’s theory of cause of death is not supported by the evidence
               presented. However, after review of the record as a whole, we
               conclude that the evidence was sufficient to support the finding
               of guilt. Here, the defendant provided a statement to police
               about her actions regarding the child. She told the detective that
               the baby would not go back to sleep so she took his pacifier to
               where the OxyContin had been crushed up. The pacifier was
               wet from the baby’s mouth and she “stuck it in the dust and
               crumbs” before putting the pacifier back into the baby’s mouth.
               The medical examiner testified that the autopsy of the child
               revealed severe changes in the victim’s brain and kidneys, which
               appeared to be caused by a toxic substance. The medical
               examiner further testified that a test of the victim’s blood
               detected the presence of oxycodone, the registered name for
               OxyContin, which is consistent with the defendant’s statement.
               As a result of the blood testing, the medical examiner amended
               her autopsy report to reflect that the cause of the victim’s death
               was oxycodone toxicity.

Debra Elaine Moore, slip op. at 3-4.

                                         I. Sufficiency

               The defendant challenges the sufficiency of the convicting evidence, as she did
in her previous appeal following her second trial. “Under the doctrine of the law of the case,
when an initial appeal results in a remand to the trial court, the decision of the appellate court
establishes the law of the case, which must be followed upon remand.” State v. Carter, 114
S.W.3d 895, 902 (Tenn. 2003) (citing State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn.
2000)). An issue decided in a prior appeal may only be reconsidered where:

               (1) the evidence offered at a trial or hearing after remand was
               substantially different from the evidence in the initial
               proceeding; (2) the prior ruling was clearly erroneous and would

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               result in a manifest injustice if allowed to stand; or (3) the prior
               decision is contrary to a change in the controlling law which has
               occurred between the first and second appeal.

Id. In the defendant’s first appeal from her second trial, the trial now under review in this
delayed direct appeal, this court determined that the evidence was sufficient to support her
convictions. Debra Elaine Moore, slip op. at 4. Because the defendant has failed to establish
any circumstance warranting reconsideration, this issue is governed by the law of the case.

                               II. Medical Examiner’s Testimony

                                       A. Phone Message

               The defendant argues that the trial court erred by allowing the medical
examiner, Doctor Darinka Mileusnic-Polchan, to testify about a telephone message taken by
her secretary from the toxicologist who examined the victim’s blood and liver sample. The
defendant contends that the written message was double hearsay, and no exception to the
hearsay rule applied. She further contends that testimony about the written message violated
her right to confront the witnesses against her.

               Prior to trial, the parties stipulated the admissibility of a letter written by Doctor
Christopher Long, a toxicologist, that stated that the laboratory could not report a positive
test result because the sample of the victim’s blood failed to meet one of two criteria:

                      Dear Dr. Mileusnic: Our protocol has been to test any
               sample with suspected oxycodone, either in the history or
               screening test results, by gas chromatography-mass
               spectroscopy.

                       In this testing, there are two requirements, one is the
               retention time (or how long the drug stays in the instrument) and
               the second is ion ratios of the mass spectrum, the fingerprint.
               This ‘fingerprint’ is generated when the drug leaves the gas
               chromatograph and enters the mass analyzer. Upon entrance the
               drug is hit with very energy [sic] causes it to explode, providing
               the fingerprint identification.

                      In this case the first criteria was met, that is the retention
               time. The second criteria were not met. The ion ratios were not
               acceptable and we could not report the oxycodone as positive.

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                    This is most reasonably due to the dilution effect as we
              had very little sample to analyze.

                      If the drug does not meet acceptable criteria then we must
              report it as negative.

                    I hope this clarifies the process that we followed. Should
              you have any further questions please contact me.

                     Sincerely, Christopher Long, Ph.D.

The State offered the letter into evidence during Doctor Mileusnic-Polchan’s testimony.
Following the reading of the letter, Doctor Mileusnic-Polchan testified that after receiving
the report from Doctor Long, she changed the victim’s cause of death from “undetermined”
to oxycodone toxicity. As Doctor Mileusnic-Polchan attempted to explain that her
determination was informed by both the letter and by a telephone message she received from
Doctor Long while she was on maternity leave, the following exchange occurred:

              [Prosecutor]: And then after this report from Doctor Long you
              changed it to that. Now why did you do that?

              [Doctor Mileusnic-Polchan]: In addition to this communication
              I also had a telephone - - a communication of a telephone
              message from D[octor] Long with our office where he originally
              tested the sample and the oxycodone was positive. As a matter
              of fact, I have the telephone message right here in front of me
              where he stated that - -

              [Defense counsel]: Objection to hearsay, Your Honor. This
              report has come in. I don’t know what was said on a telephone
              conversation, Your Honor. He’s not here to be cross-examined,
              Your Honor. That’s hearsay.

              [The court]: This is something that, as I understand, you have
              relied upon?

              [Doctor Mileusnic-Polchan]: As a matter of fact, this is the
              telephone message written to me by my secretary.




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[The court]: The Court will overrule. You took this into
consideration in reaching your conclusion?

[Doctor Mileusnic-Polchan]: Definitely.

[The court]: Okay. The Court will overrule the objection.

       ....

[Prosecutor]: You may answer.

[Doctor Mileusnic-Polchan]: So anyway, the telephone message
that was written by my secretary on September 24, while I was
on maternity leave, from D[octor] Chris Long, from the St.
Louis Toxicology Laboratory, there’s a telephone number here
and it stated to call him back regarding [the victim]. The
message is following: The - -

[Defense counsel]: I object again, Your Honor. She said she
had a phone call with D[octor] Long. This is coming off a
message from the secretary. She didn’t even talk to D[octor]
Long. That’s double hearsay. We don’t know what was told to
the secretary and we don’t know why she wrote down what she
wrote down.

[The court]: The Court will still overrule the objection, but this
is something I guess all medical reports are done by somebody
else. The doctors don’t do them. . . . So it’s a question - - and
I’ll not go into the reason. It’s a discretionary matter with the
Court and the Court will allow it.

       ....

[Doctor Mileusnic-Polchan]: Let me explain the sequence of
events. The message was first. When I came back from
maternity leave about a week later because that was the end of
September I called him back and I requested the letter that was
just . . . stipulated to . . . to be an official document and not just
hearsay from communication, and that’s why I’m bringing this
into discussion in court. Anyway [sic] to confirm one or the

                                 -6-
                  other, it stated that they’re toxic, the levels of OxyContin are
                  more toxic, and he wanted to know whether I want[ed] him to
                  test more. So basically, the toxicologist found the oxycodone
                  and he wants me to give him permission to test more. And
                  therefore, we had double the communication of the OxyContin
                  being positive.

               In her motion for new trial, the defendant argued that the court “erred when it
ruled that the notes from the secretary for the ME from Doctor Long could be used in
testimony” because the notes were hearsay and because such testimony violated the
defendant’s right to confrontation. On appeal, the defendant makes the same argument and
adds that the effect of “allowing this telephone message into the record” was that “the trial
court allowed the State to ‘impeach’ their own stipulated report.”

                “‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). “Hearsay is not admissible except as provided by these rules or otherwise
by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide exceptions to the
general rule of inadmissibility of hearsay. Because “[n]o factual issue attends” the trial
court’s determination whether a statement is hearsay, “it necessarily is a question of law.”
State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (citing State v. Schiefelbein,
230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721
(Tenn. Ct. App. 2005)). Although the application of the various exceptions to the hearsay
rule “may initially depend upon factual determinations” to which a reviewing court must
defer, the trial court “has no discretion to exclude hearsay exception evidence that is
otherwise admissible under the rules of evidence.” Id. at 760-61. Thus, the appropriate
standard of review to be applied to the trial court’s decision admitting or excluding hearsay
evidence is de novo.1 Id.

                Doctor Mileusnic-Polchan did not read into evidence the message relayed by
her secretary, but she did testify that Doctor Long communicated to her secretary that the
initial test of the victim’s blood was positive for the presence of oxycodone. Both the
secretary’s statement that Doctor Long had called and left a message along with Doctor
Long’s statement qualify as hearsay even though neither was repeated verbatim by Doctor
Mileusnic-Polchan. Moreover, the record establishes that both statements were admitted to
prove the truth of the matter asserted, that the victim’s blood contained oxycodone, despite


        1
          This is much the same standard applied to the review of a trial court’s decision on a motion to suppress. In
those cases, the factual determinations of the trial court are conclusive unless the evidence preponderates against them
while the application of the law to those factual findings is reviewed de novo. See Odom, 928 S.W .2d at 23.

                                                          -7-
Doctor Long’s having reported a negative test result. Having deemed the statements hearsay,
we must next determine whether they were admissible via any exception to the hearsay rule.

               Although the rules of evidence permit expert witnesses to rely upon reliable
hearsay in forming their opinions, see Tenn. R. Evid. 703 (“The facts or data in the particular
case upon which an expert bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject, the facts or data
need not be admissible in evidence.”); Id., Advisory Comm’n Comments (“Experts in the
field may base opinions on facts not in evidence under this rule. Requisite foundations are
that (1) the facts must be ‘reasonably relied upon by experts in the particular field’ and (2)
the facts must be trustworthy. With such foundations, inadmissible hearsay could support
an admissible expert opinion.”), the rules do not permit otherwise inadmissible evidence to
be admitted under the guise of the expert’s opinion unless the proponent of the evidence can
show that the prejudicial effect of the evidence is substantially outweighed by the probative
value of the evidence in assisting the jury’s understanding of the expert’s opinion, see Tenn.
R. Evid. 703 (“Facts or data that are otherwise inadmissible shall not be disclosed to the jury
by the proponent of the opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert’s opinion substantially outweighs their
prejudicial effect.”). Thus, Doctor Mileusnic-Polchan was permitted to rely upon the
information conveyed to her by Doctor Long via her secretary, but that information should
not have been disclosed to the jury until the trial court specifically concluded that the jury’s
need for the information to comprehend Doctor Mileusnic-Polchan’s testimony substantially
outweighed the prejudicial effect of admitting otherwise inadmissible evidence. The trial
court engaged in no such weighing in this case, making the evidence inadmissible via Rule
703.

                Similarly, we can find no exceptions to the hearsay rule that would permit the
admission of the double hearsay proffered by Doctor Mileusnic-Polchan. Consequently, the
trial court erred by admitting the information. That being said, the erroneous admission of
the information was harmless. The defendant admitted to police that she had rolled the
victim’s pacifier in oxycodone, and Doctor Mileusnic-Polchan testified that her findings in
the autopsy confirmed opiate toxicity. Doctor Long’s letter confirmed that the only
impediment to his declaring the victim’s blood positive for the presence of oxycodone was
the failure of the sample to satisfy one criterion and that the failure to satisfy that criterion
was likely due to the small size of the sample rather than the amount of oxycodone in the
victim’s system.

             The defendant also contends that the admission of the information from the
telephone message violated her constitutional right to confront Doctor Long. In our view,

                                               -8-
any violation of the defendant’s confrontation right was harmless beyond a reasonable doubt.
See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (“We have recognized that other types of
violations of the Confrontation Clause are subject to that harmless-error analysis, see e. g.,
Delaware v. Van Arsdall, 475 U.S. [673, 679, 684 (1986)], and see no reason why denial of
face-to-face confrontation should not be treated the same.”). Even had the challenged
evidence been excluded, the remaining evidence was more than sufficient to support the
defendant’s convictions.

                                 B. Toxicology Testimony

              The defendant also contends that Doctor Mileusnic-Polchan should not have
been permitted to explain the results contained in the toxicology report because she had not
been declared an expert in toxicology. This court considered and rejected a challenge to
Doctor Mileusnic-Polchan’s similar testimony in the defendant’s first trial, concluding that
Doctor Mileusnic-Polchan’s “experience and medical training qualified her to testify as to
the cause of the victim’s death. The fact that D[octor] Long was unable to perform a
corroborating test for the presence of Oxycontin in the victim’s blood sample goes to the
weight of the evidence presented.” Debra Elaine Kirk, slip op. at 15. Nothing in the
presentation of this same evidence during the defendant’s second trial warrants our departing
from this reasoning. See Carter, 114 S.W.3d at 902.

                           III. Double Jeopardy and Plain Error

               Although not raised by the parties, we recognize, based upon this court’s
decision in State v. Nigel Kavic Watkins, No. M2009-00348-CCA-R3-CD (Tenn. Crim. App.,
Mar. 1, 2010), perm. app. granted (Tenn. Aug. 25, 2010), that the defendant’s convictions
of criminally negligent homicide and aggravated child abuse might violate her constitutional
double jeopardy protections. In Watkins, this court merged convictions of reckless homicide
and aggravated child abuse after concluding that dual convictions violated double jeopardy
protections because they were based on the same evidence, had the same victim, and fulfilled
the same legislative purpose. Nigel Kavic Watkins, slip op. at 10-13. The convictions in this
case present the same double jeopardy problems as those in Watkins. However, given that
our supreme court has granted the State’s application for permission to appeal in Watkins,
we cannot say that “a clear and unequivocal rule of law has been breached” warranting
review of the issue as plain error. See State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.
Crim. App. 1994) (providing five factors necessary for plain error review).




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                                        Conclusion

                Based on the foregoing authorities and reasoning, we affirm the judgments of
the trial court.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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