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

                    STATE OF TENNESSEE v. JUDGE BROOKS

                       Appeal from the Criminal Court for Shelby County
                             No. 03-8238 Joseph B. Dailey, Judge



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


JOSEPH M. TIPTON , J., concurring and dissenting.

        I concur in the reasoning and result reached in the majority opinion save in one area. I
respectfully disagree with its conclusion that the defendant’s right to confrontation was forfeited by
virtue of his wrongfully killing the victim. The majority opinion essentially holds that wrongfully
causing the victim’s unavailability to testify at the defendant’s trial for murdering the victim forfeits
the defendant’s right to confrontation, which allows all relevant statements by the victim to be
admitted into evidence. I believe the forfeiture by wrongdoing doctrine should require that the
defendant procure the absence of the declarant with the intent that the declarant not be a witness.

        The United States Supreme Court first used the forfeiture doctrine in Reynolds v. United
States, 98 U.S. 145 (1879). In Reynolds, the defendant was being tried in the Utah territory for
bigamy, and a subpoena was issued for his second wife, who was known to live with the defendant.
When the officer inquired of her whereabouts, the defendant said he would not tell the officer and
stated, “She does not appear in this case.” In her absence, her sworn testimony from a previous
bigamy trial of the defendant was admitted. In affirming the conviction, the Supreme Court stated:

                The Constitution gives the accused the right to a trial at which he
                should be confronted with the witnesses against him; but if a witness
                is absent by his own wrongful procurement, he cannot complain if
                competent evidence is admitted to supply the place of that which he
                has kept away. The Constitution does not guarantee an accused
                person against the legitimate consequences of his own wrongful acts.
                It grants him the privilege of being confronted with the witnesses
                against him; but if he voluntarily keeps the witnesses away, he cannot
                insist on his privilege. If, therefore, when absent by his procurement,
                their evidence is supplied in some lawful way, he is in no condition
                to assert that his constitutional rights have been violated.
Id. at 158. I believe the more reasonable interpretation of Reynolds includes an understanding that
the defendant must cause the absence of a person with the intent to prevent him or her from being
a witness.

        Historically, evidence rules involving hearsay have complied with – and have “dovetailed”
with – the restraints of the Confrontation Clause. The majority opinion, though, and the Sixth
Circuit do not see it that way. In this regard, I note that the Supreme Court has stated that Federal
Rule of Evidence 804(b)(6) “codifies the forfeiture doctrine.” Davis v. Washington, ___U.S.___,
126 S. Ct. 2266, 2280 (2006). The federal rule, like Tennessee Rule of Evidence 804(b)(c), requires
the absence to be procured for the purpose of preventing the person from being a witness. If Justice
Scalia’s statement in Davis regarding the rule codifying the doctrine represents his usual clarity, I
do not think we can ignore the defendant’s intent in considering whether or not the forfeiture
doctrine applies in the present case, whether under the Confrontation Clause of the United States
Constitution or the Constitution of Tennessee.

        Given that the state did not prove by a preponderance of the evidence that the defendant
wrongfully killed the victim in order to prevent her being a witness against him, I would hold that
admission of her various statements to her uncle and in her affidavit violated the defendant’s right
to confrontation. However, given the other evidence, including the defendant’s statement to Officer
Wells, I would hold that the violation was harmless beyond a reasonable doubt.



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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