 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                      AT KNOXVILLE                                FILED
                   MARCH 1999 SESSION                             October 19, 1999


                                                                 Cecil Crowson, Jr.




STATE OF TENNESSEE,             *    C.C.A. # 03C01-9808-CR-00275

      Appellee,                 *    HAMILTON COUNTY

VS.                             *    Hon. Douglas A. Meyer, Judge

CHARLES ERIC GOODWIN,           *    (Attempted Second Degree Murder
                                     and Second Degree Murder)
      Appellant.                *




For Appellant:                       For Appellee:

Allen R. Beard, Attorney             Paul G. Summers
615 Lindsay Street, Suite 110        Attorney General and Reporter
Chattanooga, TN 37403-0110
                                     R. Stephen Jobe
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North
                                     Second Floor, Cordell Hull Building
                                     Nashville, TN 37243-0493

                                     C. Leland Davis
                                     and
                                     Caldwell Huckabay
                                     Assistant District Attorneys General
                                     City and County Courts Building
                                     Chattanooga, TN 37402



OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Charles Eric Goodwin, was convicted in a bench trial

of the second degree murder of Gregory Billups, Jr., and the attempted second

degree murder of Eddie Birdsong. The trial court imposed concurrent, Range I

sentences of twenty-five years and twelve years, respectively. In this appeal of

right, the defendant challenges the sufficiency of the evidence as to each conviction

and contends that certain of the testimony should not have been excluded from

consideration.



              We affirm the judgment of the trial court.



              During the early morning hours of June 8, 1995, William Anthony

Taylor drove the defendant to the Chattanooga residence of Betty Calloway, the

defendant's girlfriend. Ms. Calloway lived in a two-story house on Duncan Avenue

that had been converted into apartments. After leaving the car and as he

approached the residence, the defendant saw the victim, Gregory Billups, Jr., and

Ostonia Woodall talking outside the apartments. The defendant made a remark to

Ms. Woodall which resulted in an altercation between the defendant and Billups.

After initially attempting to stop the fight, Eddie Birdsong, who was a brother to

Billups, joined the fray. According to witnesses, the altercation among the men

lasted between ten and fifteen minutes and ended when the defendant, who had

been beaten and had lost a shoe, ran to an automobile owned by Rodney Gordon.

Taylor, who was a codefendant in the bench trial, had little involvement in the fight,

according to at least one of the state's witnesses, except to try to stop it.



              Later, the defendant, driving his own automobile, returned to the

residence with Taylor, Gordon, James Duke, James Davenport, and perhaps others.

He was present when the victim Birdsong was assaulted and when the victim Billups


                                            2
was murdered.



              The evidence was disputed at trial. Stephanie Feaster, a sister to

Billups, testified that she was at her second story apartment with her one-year-old

son. Billups, Birdsong, and Ms. Woodall, who had a newborn daughter, were also

present. Ms. Feaster recalled hearing a loud crashing sound and, after walking

downstairs to investigate, observed Billups choking the defendant. She stated that

Taylor was attempting to break up the fight and that Birdsong was able to separate

the combatants. A fight then erupted between Birdsong and the defendant after

which Ms. Feaster returned to her apartment. Later, Ms. Feaster overheard Billups

and Birdsong, neither of whom were armed, laughing about how badly the

defendant had been beaten. After an interval of time, Billups and Birdsong decided

to go to a grocery store for beer. Ms. Feaster recalled that Billups armed himself

with an ice pick as Birdsong walked ahead down the stairway. Ms. Feaster then

heard two gunshots and Billups, who went downstairs to investigate, directed her to

return to the apartment, lock the doors, and call the police. Ms. Feaster stated that

she hid behind a door when she heard a voice outside calling out, "It's another m-----

f---- upstairs, let's get him." Ms. Feaster testified that she then heard a crash at her

door, saw the defendant and Taylor standing next to Billups, and observed Taylor

shoot Billups once from relatively close range. Ms. Feaster recalled that

immediately after the shooting, Taylor and the defendant fled down the stairway.



              Ostonia Woodall, Billups' girlfriend, also testified for the state. She

stated that the initial fight erupted due to a remark the defendant had made to her.

She stated that Billups took exception, a fight ensued, and that Taylor and Birdsong

attempted to intervene. She stated that Birdsong then fought with the defendant

and ultimately chased him away through an alleyway. Ms. Woodall testified that

sometime later she heard gunshots and then someone say, "There is one more in


                                            3
the house, there is another one in the house." Ms. Woodall called the police and, as

she was speaking with a 911 dispatcher, heard a gunshot inside the apartment.



             Eddie Birdsong testified that he had intervened in the initial fight

because he had discovered his brother, Billups, choking the defendant while Taylor

was on Billups' back. Birdsong recalled pushing Taylor off his brother and then

separating Billups and the defendant. He stated that when he was struck by the

defendant, who continued to try to fight with Billups, he "then ... whooped him."

Birdsong described the demeanor of the defendant as "on something." Birdsong

testified that sometime later he went downstairs and again saw the defendant who

said, "It's over with me." Birdsong stated that he then overheard the defendant

talking to someone else, who he could not see in the dark. Birdsong related that the

defendant then produced a gun and fired in his direction. Birdsong was able to flee

from the scene without being hurt.



             Detective Dan Moody of the Chattanooga Police Department led the

investigation. He learned that the defendant had been hospitalized with a stab

wound and arranged a gunshot residue analysis at approximately 9:00 A.M., only a

few hours after the shooting. The test was inconclusive. Detective Moody testified

that Taylor claimed that he had broken up a fight in which the defendant was

involved and, after returning to the defendant's residence, discovered that the

defendant had been stabbed in the initial fray. Taylor made no mention of returning

to the Duncan Avenue residence in his first statement to the detective but admitted

in his second statement that he and the defendant had returned there, saw other

individuals chasing someone, and then heard a gunshot.



             Detective Moody also questioned the defendant, who claimed that he

was stabbed when he bent over to pick up a necklace after the initial altercation with


                                          4
Billups. The defendant told the detective that during the second confrontation

someone reached over him and fired a pistol at Billups. In his initial statement, the

defendant made no mention of Frederick Rollins. Several months later, the

defendant sent Detective Steve Angel a letter claiming that Rollins had shot Billups

and that he and James Duke had witnessed the shooting. The defendant claimed

that Rollins later killed Duke, who had suggested to Rollins that he should confess to

the killing of Billups.



               Frank King, M.D., the county medical examiner, testified that Billups

died from a single gunshot wound that entered his left lateral back and traveled in

an upward direction into his right chest cavity. Dr. King estimated that the gun was

fired from about two feet.



               Detective Tim Carroll, who investigated the murder of Duke, testified

that Rollins had been charged and convicted of that crime. Detective Carroll also

testified that he had investigated the defendant's claim that Rollins had also shot

Billups. After comparing the bullets in each murder, Detective Carroll determined

that there was no match. Other witnesses established that there was no relationship

between the Billups and Duke murders.



               The defendant claimed that he was attacked by Birdsong and Billups

for no reason and that Taylor's only involvement was to try to break up the fight.

The defendant contended that he was aware that his mother, when she learned of

his beating, intended to travel to the Duncan Avenue home to confront his

assailants, and testified that he returned there to find her. He claimed that the other

men, who had heard about the altercation, just happened to arrive at about the

same time. The defendant claimed that when he saw Birdsong, he signaled that

there was no further argument between them and that Birdsong did likewise. The


                                           5
defendant claimed that Birdsong nevertheless followed him in a threatening manner

as he walked into a dark area. He recalled that one or two shots were then fired.



             The defendant explained that, after the initial fight, he asked Rodney

Gordon for a ride to his car because he did not want to leave it overnight in the

projects. He stated that when he retrieved his car, his friends in the neighborhood

asked what had happened and learned that he had been beaten by Birdsong and

Billups at the Duncan Avenue residence. The defendant claimed that when he

returned to the scene, he first saw Birdsong, who said, "What's up, nigger? What's

up? You want some more?" He testified that he responded, "It's over with, man,"

and that Birdsong commented, "Well, you shouldn't have come around here with

that anyway." The defendant denied that he had a weapon in his possession. He

contended that Birdsong followed him all the way to the front of the house where it

was particularly dark. The defendant testified that he heard a shot at that point and

fell to the ground to avoid being struck. The defendant stated that he went around

to the front door and into the hallway of the apartment, "staying out of sight." The

defendant stated that "there was some more guys following ... behind me ... in the

hallway," who he identified as "240, J.D., [and] Tony Richardson." The defendant

testified that he then saw Billups coming down the steps:

              And next thing I know, there was a push or something ....
              I don't know. It was words being exchanged or whatever,
              somebody pushing me out of the way. I fell holding my
              side, and next thing you know, I heard people kind of like
              stampede past me. I heard shooting. Once I heard the
              shooting, people started running back ... past me ...
              pushing me out of ..., and somebody helped me up ... off
              the ground.... I don't know whether I was stabbed or
              shot.


              The defendant testified that he was taken to his mother's residence

where his brother called for an ambulance to take him to the hospital. The

defendant recalled that when he woke up from surgery, he was handcuffed. He



                                          6
stated that the police performed a test on his hands in an effort to determine the

presence of gunpowder. At trial, the defendant, who had a prior felony record,

claimed that Frederick Rollins had shot Billups.



              Joyce Duke, the mother of James Duke, testified for the defense. She

recalled that before his death, her son had informed her that Rollins had killed

Billups. The state objected to the testimony as hearsay and the trial court ruled it

inadmissible. Ms. Duke admitted that the codefendant Taylor was the father of her

daughter's child. She confirmed that Rollins had killed her son.



              James Davenport, who admitted that he had been drinking on the

night of the shooting and had an unclear memory of the events, testified that he was

told by the defendant and Taylor of the altercation with Billups and Birdsong.

Davenport claimed that he saw Rollins rush past the defendant and shoot Billups.

Davenport also claimed that Rollins bragged afterwards about having shot Billups.



              Jamie Jackson, a former correctional officer in the Hamilton County

Jail, also testified for the defense. He recalled that the defendant and Rollins, who

were both incarcerated at the time, engaged in an argument wherein the defendant

accused Rollins of having killed a man. Jackson stated that he overheard the

defendant shout, "You know you killed him," after which Rollins retorted, "Yeah, I

know that, but nobody else does."



              The defendant's mother, Joyce Goodwin, also testified on behalf of the

defense. She claimed that when the defendant returned from the Duncan Avenue

residence, his nose was bloody and he had no shoes. She stated that when she

learned that he had been beaten by two individuals, Ms. Goodwin picked up a

friend, Darlene Jones, and drove to Duncan Avenue. She testified that when she


                                           7
arrived, however, the area was full of police officers. She stated that she had been

delayed to the Duncan Avenue residence when she stopped for gas. Upon

returning home, she discovered that the defendant and the police were at her

residence.



              Ms. Darlene Jones testified to substantially the same series of events

as Ms. Goodwin. She did differ in one regard, however, in that she remembered

driving straight to the Duncan Avenue residence and then stopping for gas

afterward.



                                            I

              Initially, the defendant complains that the evidence was insufficient to

support either of his convictions. Because the defendant Taylor was acquitted in the

bench trial, the defendant argues that the trial judge's "decision was based on pure

surmise," supportive of neither the state's theory nor that offered by the defense.

The defendant bases his argument on the fact that Ms. Feaster, the only eyewitness

to the shooting, testified that Taylor had fired the weapon. He asserts that the trial

judge, who determined that Ms. Feaster was "simply ... wrong about what she says

she saw," had no basis to reject that portion of her testimony while accrediting the

balance of her assertions: "[t]he trial court based its decision entirely on its own

tortured interpretation of the evidence."



              The state’s theory was that the defendant, motivated by revenge after

he had been beaten, gathered some of his friends from the projects and returned to

Duncan Avenue to confront Birdsong and Billups. The state sought to prove that the

defendant, who had been drinking, shot at Birdsong and then chased after Billups

on the stairway where either the defendant or Taylor shot Billups. The theory of the

state was that the defendant was either the perpetrator or was criminally responsible


                                            8
for the conduct of Taylor. It contended that the defendant told his friends that he

"got ganged" and that the police came in response to Ms. Woodall's call, where the

shot was recorded, and not that of the defendant; that the defendant shot at

Birdsong because he was embarrassed by getting whipped by the younger men;

and that Billups "stuck the defendant with an ice pick" and started to run before

being shot by either the defendant or Taylor. The state's theory was that Ms.

Feaster, a seventeen year old with her own child, was so frightened by the course of

events that she could have been mistaken about which of the two defendants fired

the fatal shot.



              The defense theory was that the defendant returned to the Duncan

Avenue residence only because he thought his mother was there; that he was not

armed and that the outside area was so dark the state could not prove who fired

shots at Birdsong. The defense theory was that the defendant fell to the ground

after being stabbed by Billups inside the apartments and that Rollins chased Billups

up the stairway and shot him.



              At the conclusion of the proof, the trial judge found that Taylor had

been a peacemaker when a fight broke out between Billups and the defendant and

that Birdsong had intervened and then beaten the defendant. He determined that

the defendant returned to his residence, gathered some friends, and returned to

challenge Billups and Birdsong. The trial judge concluded that Birdsong, upon

leaving the apartment, observed the defendant and followed him around the corner

of the residence in order to determine why he had returned when the defendant

"fired twice at him." The trial judge also found that Billups, who had heard the

gunshots and had armed himself with an ice pick, directed Ms. W oodall and Ms.

Feaster upstairs and stuck the defendant with an ice pick when the latter entered

the stairway. He determined that Ms. Feaster was "honestly mistaken" and that in


                                           9
reality the defendant had fired the fatal shot into the back of Billups as he ran up the

stairway. The trial judge placed emphasis upon the upward angle of the shot as

determined by Dr. King and also concluded that the defendant "was not in a state of

passion" at the time of the shootings, a state of mind which might have reduced the

offense to voluntary manslaughter. Taylor was acquitted because, in the words of

the trial judge, he did not share in the criminal intent to commit murder and did not,

according to his interpretation of the proof offered, fire any of the shots at Birdsong

or Billups.



              On appeal, of course, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted to the trier of fact. Byrge v. State, 575 S.W.2d

292, 295 (Tenn. Crim. App. 1978). W hen the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing 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. State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).



              Although this case was a bench trial, the findings of the trial judge who

conducted the proceedings carry the same weight as a jury verdict. State v. Tate,

615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). Questions concerning the credibility

of the witnesses, the weight and value to be given their testimony, and all factual

issues raised by the proof are matters entrusted to the trier of fact. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court may neither reweigh nor

reevaluate the evidence. State v. Cabbage, 571 S.W.2d at 835.




                                           10
             Second degree murder is defined as the knowing killing of another.

Tenn. Code Ann. § 39-13-210(a)(1). Criminal attempt is defined in pertinent part as

follows:

             (a) A person commits criminal attempt who, acting with
             the kind of culpability otherwise required for the offense:
               (3) acts with intent to complete a course of action or
             cause a result that would constitute the offense, under
             the circumstances surrounding the conduct as the
             person believes them to be, and the conduct constitutes
             a substantial step toward the commission of the offense.



             The trial judge made reference to criminal responsibility for conduct of

another:

             A person is criminally responsible for an offense
             committed by the conduct of another if (2) acting with the
             intent to promote or assist the commission of the offense
             or to benefit in the proceeds or result of the offense, the
             person solicits, directs, aids, or attempts to aid another
             person to commit the offense.



             The evidence offered at trial was contested. Some of the proof offered

may have been untruthful. Other testimony, while not untruthful, may have been

mistaken due to the variety of emotions produced in the witnesses in consequence

of the course of events. There was, however, testimony of each and every element

of the offense of the second degree murder of Phillips and the attempted second

degree murder of Birdsong. There was proof that the defendant, after being beaten

and possibly embarrassed by the initial altercation on Duncan Avenue, summoned

the assistance of his friends and returned to the residence to confront Birdsong and

Billups. A gun was obviously present and there was testimony that neither Billups

nor Birdsong had a gun. There was proof that the defendant or his friends were

armed and that two shots were fired at Birdsong before Billups, who, in anticipation

of trouble sought to protect himself by the use of an ice pick, was shot in the back

either by the defendant or with the assistance and participation of the defendant.



                                          11
The gunshot, which apparently resulted in the death of Billups, can be heard on the

911 call made by Ms. Woodall.



              As pointed out by the state, there was proof the defendant had a

motive and the opportunity to commit the offenses. There was direct testimony as

well as circumstantial evidence which contradicted his claim that he was merely

present at the time the shots were fired at Birdsong and Billups. Furthermore, the

trial court had a factual basis upon which to reject any claim by the defendant that

the crimes against Billups and Birdsong should have been voluntary manslaughter

or attempted voluntary manslaughter. It was the prerogative of the fact finder to

determine whether there was adequate provocation "sufficient to lead [the

defendant] to act in an irrational manner." There were circumstances in this

instance which indicate that the passion or anger, which might have naturally been

present in the defendant, had subsided from the time of the first altercation until the

second confrontation. For example, the defendant claimed that when he saw

Birdsong, he indicated that there was no longer any quarrel between them and he

walked away just before the first shots were fired. The defendant testified that he

had gone home to forget about the incident and only returned to check on his

mother, who had stated that she intended to investigate the incident. The trial

judge, as was his prerogative as the trier of the facts, chose to reject the defendant's

claim that the stab wound from the ice pick had provoked the defendant to kill

Billups. There was a basis for that finding. Witnesses overheard a comment,

"there's another one upstairs" in reference to Billups and "let's get him."



              In our view, the evidence was sufficient. So long as there was a

factual basis in the record for his conclusions, the trial judge was entitled to assess

the credibility of each witness and make an interpretation of the proof at trial without

accepting either the state’s theory or that of the defense.


                                           12
                                           II

              The defense theory was that Frederick Rollins killed the victim. While

the trial court initially allowed hearsay evidence which indicated Rollins was the

assailant, it ultimately determined that the evidence was inadmissible. James Duke,

who was with the defendant on the night Billups was killed, was later murdered by

Rollins. Joyce Duke, the mother of James Duke, testified that she had overheard

her son, two days before his own death, claim that Rollins had killed Billups. James

Davenport, who was transported to prison with Rollins, testified that Rollins had

admitted to the killing several times. Jamie Jackson, a jail employee, testified that

he had overheard Rollins admit to participating in one or more killings.



              The defendant claims that the trial judge excluded the evidence on

grounds of irrelevancy or hearsay. The defendant insists that the testimony offered

by the three witnesses should have been admitted:

              (1) as to Ms. Duke's testimony, the defendant contends
              that the evidence was admissible under Rule 804(a)(4) of
              the Tennessee Rules of Evidence;

              (2) as to the testimony of James Davenport, the
              defendant claims that the evidence was not offered to
              prove the truth of the matter asserted; and

              (3) as to Jamie Jackson’s testimony, the defendant
              argues that the evidence was not offered to prove the
              matter asserted but to show that Rollins had admitted
              killing someone in an argument with the defendant.



              Initially, we reject the notion that the proof was not offered to prove

that someone other than the defendant killed Billups or fired the shots at Birdsong.

The defendant makes no real argument in support of that claim. Thus, the hearsay

rules would apply. Rule 804(b)(3) of the Tennessee Rules of Evidence, the

statement against interest exception to the rule against hearsay, provides as follows:

              A statement which was at the time of its making so far
              contrary to the declarant's pecuniary or propriety interest,


                                           13
              or so far tended to subject the declarant to civil or
              criminal liability or to render invalid a claim by the
              declarant against another, that a reasonable person in
              the declarant’s position would not have made the
              statement unless believing it to be true.



              The statement against interest is admissible only if the declarant is

unavailable. James Duke’s statement to his mother that he had witnessed Rollins

shoot the victim Billups does not, in our view, qualify as a statement against interest.

The declarant, James Duke, even though unavailable due to his death, did not

subject himself to criminal liability by making the statement. The offered evidence

was, therefore, properly excluded.



              James Davenport, who testified without objection that he had observed

Rollins shoot Billups, also stated that Rollins had bragged about his involvement

afterward and had acknowledged having fired the fatal shot. W hen Davenport

testified that Rollins admitted that he "bust[ed] the mf," there was no objection by the

state. When he discussed the conversation that he had with Rollins on their way to

prison, wherein Rollins acknowledged having "shot two or three people," there was

no objection. After hearing this and all of the other testimony at issue, the trial court,

when rendering the verdict, made the following ruling:

              [T]he one thing that I did not deal with, and that is the
              testimony we heard about an alleged alternative
              perpetrator, which would be the testimony that was heard
              about Freddy Rollins, and the court finds the testimony
              about the alleged perpetrator is not admissible, that none
              of the testimony was admissible.



              The ruling, which was made as an aside while the trial court was

rendering the verdict, cannot be interpreted as broadly as it might appear. Those

objections that were made by the state were based upon the rule against hearsay.

The trial court reserved judgment, heard the evidence, and expressed his intent to



                                           14
render a ruling at a later time. It is our view that the trial judge's ruling at the end of

the proof only pertained to testimony which was at issue and not that introduced

without objection. In fact, the ruling appears to be limited to the testimony of Joyce

Duke which the trial court characterized as follows:

              It is hearsay.... I will allow you to present it for the
              record.... Well, it would be coming in just for the record
              then I can decide later whether to consider it or not.



              Nevertheless, even if the trial judge was making reference to the

hearsay testimony offered by Davenport of his conversations with Rollins after the

night of the shooting, an exclusion would not have been erroneous. W hile Rollins'

statements were certainly against his own interests, the defense did not establish

that Rollins was unavailable, as required by the rule. Tenn. R. Evid. 804(b). The

proponent of the evidence, the defendant in this case, has the responsibility of

issuing a subpoena. Here, the defendant did so. During the course of the trial,

however, after it became clear that Rollins would be available to testify, the

defendant chose not to call him as a witness:

              THE COURT: At this point, Mr. Beard, there was a
              question about whether or not you wish to have the
              testimony of Freddy Rollins, and we have located him.
              He is ... in Bledsoe County at Pikeville, and they are
              scheduled to ... send him over here at 6:00 o'clock in the
              morning, which would be 7:00 our time, but you have
              decided that you do not wish to call him?

              MR. BEARD: That is correct, your honor.

              THE COURT: And Mr. Sloan and Mr. Poole (counsel for
              the defendant Taylor) you both have decided that you do
              not wish to have Rollins’ testimony?

              MR. POOLE: That's correct, your honor.

              THE COURT: And the state does not wish to call him
              either?

              MR. DAVIS (assistant district attorney general): No.




                                             15
              The defendant also argues as an excuse that "had [Rollins] been in

court, it is highly unlikely that he would have admitted to the killing and would have

certainly invoked the privilege against self-incrimination...." Rule 804(a)(1) of the

Tennessee Rules of Evidence includes in its definition of "unavailability," "situations

in which the declarant ... is exempted by ruling of the court on grounds of privilege

from testifying concerning the subject matter of the declarant's statement...." In

order to be deemed unavailable, however, the witness must actually "assert a

privilege and the court should rule that the privilege is properly invoked." Neil P.

Cohen, et al., Tennessee Law of Evidence, § 804(a)(2), at 590 (3d Ed. 1995). That

was not done in this case. For these reasons, an exclusion of the hearsay evidence

offered by Davenport would have been entirely appropriate.



              Jamie Jackson testified that he overheard Rollins in an argument with

the defendant admit having killed someone. The defendant’s brother, Tracy

Goodwin, who was also incarcerated, was involved in the quarrel. Jackson recalled

that the defendant said, "You need to tell these people that you killed that boy."

Jackson remembered that Rollins initially denied that he had done so but after a

continuation of similar dialogue, the exchange ended as follows:

              THE DEFENDANT: You know you killed him. You know
              that we didn't have nothing to do with that.

              ROLLINS: Yeah, I know that, but nobody else does.

              THE DEFENDANT: Well, then, you need to tell those
              people you killed that boy.

              ROLLINS: No, I'm not telling them nothing.

Jackson described the argument as having lasted for as long as an hour. When

questioned by the trial judge, Jackson admitted that the name of the victim was

"never mentioned."



              Again, Rollins was not unavailable as is required before a statement


                                           16
against interest can be properly introduced. In consequence, the evidence was

properly excluded. There was no error.



             Accordingly, the judgment is affirmed.



                                         ________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
Cornelia A. Clark, Special Judge




                                         17
