State of Tennessee v. Brandon M. Cartwright

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 12, 2011 Session

STATE OF TENNESSEE v. BRANDON M. CARTWRIGHT

Appeal from the Circuit Court for Gibson County (Humboldt Law Court)

No. H-8615 Clayburn Peeples, Judge

No. W2010-01253-CCA-R3-CD - Filed June 10, 2011

A Humboldt Law Court jury convicted the defendant, Brandon M. Cartwright, of first degree

murder committed in the perpetration of a robbery, see T.C.A. § 39-13-202(a)(2)(2006), and

especially aggravated robbery, see id. §39-13-403. On appeal, the defendant argues that the

trial court erred by admitting hearsay evidence and that he was denied his right to a jury of

his peers because members of his race were underrepresented in the venire due to their

systematic exclusion. Discerning no infirmity in the convictions, we 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 OSEPH M.

T IPTON, P.J., and R OBERT W. W EDEMEYER, J., joined.

Michael A. Carter, Milan, Tennessee, for the appellant, Brandon M. Cartwright.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Garry Brown, District Attorney General; and Larry Hardister, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant does not challenge the sufficiency of the evidence to support his

convictions on appeal. Therefore, we will only briefly outline the evidence presented by the

State to support the convictions.

On August 31, 2007, the defendant, Keith Rose, and Nicholas Hart robbed and

killed the 71-year-old victim, Reggie Hicks, Jr., at the victim’s home in Humboldt,

Tennessee. The three men left the scene in the victim’s truck, only to abandon the truck later

when it ran out of gas. Three days later, the victim’s daughter discovered the victim’s body

in a pool of blood on the living room floor. The victim’s hands were tied behind his back,

and he had died from an apparent gunshot wound to the back of his head. Authorities found

the victim’s truck abandoned in a parking lot the same day.

Later the same day, the defendant surrendered to the police. In a statement to

the police, the defendant claimed that Mr. Rose planned the robbery and shot the victim. He

recounted details concerning the offenses. Upon completion of the statement, the entire

statement was read aloud to the defendant who then initialed each paragraph and signed the

statement. The defendant also added a hand-written expression of remorse to the statement.

Kacy Rose, Keith Rose’s brother, testified that when he learned that the

defendant and his brother were wanted for questioning by the police, he asked them what had

happened. He stated that the defendant began to cry and admitted that he had shot the victim.

An autopsy of the victim’s body confirmed that he died of a single gunshot

wound to the head. Although the bullet was recovered from the body, no gun was ever

found.

Based upon this evidence, the jury convicted the defendant of first degree

murder committed in the perpetration of a robbery and especially aggravated robbery.1 In

a sentencing trial, the jury found evidence to support the imposition of a sentence of life

without the possibility of parole. The trial court imposed a consecutive sentence of 25 years

for the especially aggravated robbery conviction. Timely post-trial pleadings followed. This

case is properly before the court.

The defendant argues that his statement made to investigators was inadmissible

hearsay because the written statement was a paraphrased account of his interview and,

therefore, “not really his statement at all.” Although he initialed each paragraph, signed the

statement, and added his own hand-written expression of remorse to the document, the

defendant claims that “there is insufficient evidence to prove that [he] undertook any . . .

manifestation” to adopt the statement as his own. See Tenn. R. Evid. 803(1.2)(B) (stating

as an exception to the rule against hearsay that a statement by a party-opponent is admissible

if the party “has manifested an adoption” of the statement). The State contends that the trial

court properly admitted the defendant’s statement.

At a pretrial hearing consisting only of argument by defense counsel, counsel

claimed that the defendant’s written statement to Tennessee Bureau of Investigation (TBI)

1

The jury acquitted the defendant, in count one, of premeditated first degree murder.

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agents was not his own statement but rather the statement of the agent taking the notes. He

claimed that the preliminary hearing testimony revealed that the agent used his own words,

rather than those of the defendant, to formulate the statement. Counsel further claimed that

no tape recording was made of the interrogation. The trial court expressed dissatisfaction with

the methods employed by the TBI in taking suspects’ statements, but it ruled the statement

admissible, stating that “legally [the TBI] has a right to do it” that way. The statement was

later admitted at trial through the testimony of the investigating agent.

“‘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. The Tennessee Rules of Evidence 803 and 804 provide exceptions to the

general rule of inadmissibility of hearsay.

Initially, we observe that the appellate courts of this state have at times applied

different standards of review to the trial court’s determination whether evidence should be

excluded as inadmissible hearsay. Our supreme court has stated without analysis that hearsay

determinations fall within a general rule that rulings on evidence are entrusted to the sound

discretion of the trial court. See State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010); see

also, e.g., State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008); State v. Brooks, 249 S.W.3d

323, 328 (Tenn. 2008); State v. Thomas, 158 S.W.3d 361, 400 (Tenn. 2005); State v. Stout,

46 S.W.3d 689, 697 (Tenn. 2001); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Of

course, a lower court’s discretionary determination is typically reviewed for an abuse of

discretion standard. See Franklin, 308 S.W.3d at 809. Reliance upon the general rule

regarding review of trial court evidentiary rulings is somewhat problematic because some of

the notable cases relied upon as precedent did not involve the review of hearsay issues. See,

e.g., State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997) (applying the abuse of discretion

standard to relevancy issues); State v. Campbell, 904 S.W.2d 608, 616 (Tenn. Crim. App.

1995) (applying the abuse of discretion standard to the review of the admissibility of expert

testimony); State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing State v. Allen, 692 S.W.2d

651 (Tenn. Crim. App. 1985), and applying the abuse of discretion standard to a relevancy

determination of the admissibility of a photograph); State v. Baker, 785 S.W.2d 132, 134

(Tenn. Crim. App. 1989) (applying the abuse of discretion standard to the review of the use

of impeachment evidence); Allen, 692 S.W.2d at 653-54 (citing State v. Banks, 564 S.W.2d

947, 949 (Tenn. 1978), and applying the abuse of discretion standard to the review of the

admissibility of photographs and otherwise not referring to the standard in reviewing a

hearsay issue); Banks, 564 S.W.2d at 949 (applying the abuse of discretion standard to the

review of the admissibility of photographs). In Franklin, the supreme court adverted to the

general rule of abuse of discretion review of evidentiary questions before observing that

“[w]hether the admission of hearsay statements violated a defendant’s confrontation rights

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is, however, a pure question of law.” See Franklin, 308 S.W.3d at 809 (citing Lilly v.

Virginia, 527 U.S. 116, 125 (1999)); State v. Lewis, 235 S.W.3d 136, 141-42 (Tenn. 2007)

(utilizing the same analytical framework the court applied in State v. Maclin, 183 S.W.3d 335

(Tenn. 2006)).

As we noted in State v. Gilley, however, panels of the intermediate appellate

courts have applied a de novo standard to the review of hearsay issues. See 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) (“[A] trial court’s ruling on whether a statement is hearsay is

a question of law, and the appellate court reviews the issue de novo without a presumption

of correctness.”); Russell v. Crutchfield, 988 S.W.2d 168, 170 (Tenn. Ct. App. 1998); State

v. Alonzo Ladon Mason, No. M2005-01929-CCA-R3-CD (Tenn. Crim. App., Nashville, Apr.

20, 2007); State v. Frank Lee Tate, No. W2004-01041-CCA-R3-CD (Tenn. Crim. App.,

Jackson, Feb. 23, 2007), perm. app. denied (Tenn. 2007); Keisling v. Keisling, 196 S.W.3d

703, 721 (Tenn. Ct. App. 2005) (“Whether a certain statement is hearsay is a question of law,

subject to de novo review.”), perm. app. denied (Tenn. 2006); Shelia Rae Gibbs v. Robin

Media Group, No. M1999-00820-COA-R3-CV (Tenn. Ct. App., Nashville, Aug. 25, 2000).

Ultimately, in Gilley, we concluded that because “[n]o factual issue attends” the trial court’s

determination whether a statement is hearsay, “it necessarily is a question of law.” Gilley, 297

S.W.3d at 760 (citing Schiefelbein, 230 S.W.3d at 128; Keisling, 196 S.W.3d at 721). We also

determined that a hearsay statement offered to prove the truth of the matter asserted “is, purely

and simply, inadmissible” and the trial court “has no discretion to hold otherwise.” Gilley,

297 S.W.3d at 760 (citing Tenn. R. Evid. 802). Similarly, we concluded that the although the

application of the various exceptions to the hearsay rule “may initially depend upon factual

determinations,” requiring appellate deference to the trial court’s factual findings, such

deference “does not equate to reviewing its application of the law to the facts for an abuse of

discretion.” Gilley, 297 S.W.3d at 760-61. Based upon these conclusions, we held that

because a “trial court . . . has no discretion to exclude hearsay exception evidence that is

otherwise admissible under the rules of evidence,” the appropriate standard of review for

hearsay issues is de novo. Id. at 761. Despite the recent supreme court cases utilizing the

abuse of discretion standard, we conclude that the trial court’s determination whether a

statement should be excluded as hearsay should be reviewed de novo.

In the present case, the State contends that the defendant’s statement was

admissible as an admission by a party-opponent. See Tenn. R. Evid. 803(1.2)(B). To clear

the way for admission of a hearsay statement under this exception, the declarant must have

adopted the statement or indicated a belief in its truth. In this case, the defendant gave a

statement of his version of the events to a TBI agent, who took paraphrased notes of the

defendant’s account. The TBI agent then read the statement to the defendant, who

acknowledged the statement by initialing each paragraph and signing each page. The

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defendant also added his expression of remorse at the conclusion of the document in his own

handwriting and signed the document. The fact that the TBI agent paraphrased the

defendant’s account or did not take verbatim notes does not undermine the obvious conclusion

that the defendant adopted the statement as his own. As such, the statement was admissible.

See Lewis, 235 S.W.3d at 145 (Tenn. 2007) (defendant’s statement may be admissible as an

admission by a party-opponent). Moreover, the defendant’s statement would have been

admissible as a statement against interest, see Tenn. R. Evid. 804(3), and was otherwise

admissible at trial. For these reasons, we conclude that the trial court properly admitted the

statement at trial.

The defendant also argues on appeal that he was denied a jury of his peers

because of an alleged systematic exclusion of African-American jurors from the venire.

Following jury selection, the defendant voiced concerns that his jury pool “did not seem to

be a fair cross[-]section [of the community]. . . [because it was] predominantly white” but

admitted that he did not have any statistical information to substantiate his claim. The trial

court overruled the defendant’s motion to strike the venire at that time. At the motion for new

trial hearing, the defendant presented statistical evidence through Amanda Elaine Brown, the

Humboldt Law Court Clerk, to show that African Americans were underrepresented in the

both the venire and the jury pool. The trial court ruled that a disparity did exist between the

population of the jurisdiction and the actual number of African Americans called to the venire,

but the court also held that the defendant failed to prove that the underrepresentation resulted

from a systematic exclusion of African Americans from the venire.

A criminal defendant has a constitutional right to a jury drawn from a venire that

represents a fair cross-section of the community. “Selection of a petit jury from a

representative cross-section of the community is an essential component of the Sixth

Amendment right to a jury trial.” State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (citing

Taylor v. Louisiana, 419 U.S. 522 (1975)). Moreover, although a defendant has no right

under the Equal Protection Clause to a “‘petit jury composed in whole or in part of persons

of [the defendant’s] own race,’ . . . he or she does have the right to be tried by a jury whose

members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U.S. 400, 404

(1991) (quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)). In this case, the

defendant points to the fact that although African Americans comprise 40 percent of the

population, only 25 percent of the jury pool was African American in his case. He has failed,

however, to establish discriminatory selection of the jurors.

Tennessee applies the three-pronged test set forth in Duren v. Missouri, 439

U.S. 357, 364 (1979), for determining whether a jury was properly selected from a fair cross-

section of the community pursuant to the Sixth and Fourteenth Amendments. State v. Buck,

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670 S.W.2d 600, 610 (Tenn. 1984). Accordingly, to establish a prima facie violation of the

fair cross-section requirement, the defendant must show:

(1) that the group alleged to be excluded is a “distinctive” group

in the community;

(2) that the representation of this group in venires from which

juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and

(3) that this under representation is due to systematic exclusion

of the group in the jury-selection process.

Duren, 439 U.S. at 364.

In the present case, the evidence showed that there were 18 African Americans

in the 66 member petit jury pool. Statistics concerning the 287 member venire also revealed

that 40 percent of the venire was non-white, with that category being further classified as 28

percent African-American, .1 percent Hispanic, and 12 percent unknown. Although the trial

court commented that it could not assume the entire 12 percent of unknown participants were

African-American, the record did reveal that several persons listed as unknown were known

to be African-American. Accordingly, the record reveals a slight disparity between the size

of the cognizable group in the community and its representation in the venire and the jury

pool.

Even assuming that the underrepresentation prong is thereby established,

however, the defendant has not shown that it was the result of systematic exclusion of African

Americans from the jury pool. Names were selected by jury commissioners from a database

created from another database of randomly selected names registered at the Tennessee

Department of Safety and Voters Registration polls. Race and other vital statistics were not

requested or recorded in the selection process, and there was no evidence to suggest that the

commissioners were otherwise made aware of the race of potential jurors or that they thereby

excluded them as members of the venire. In overruling the defendant’s motion for new trial

allegation, the trial court noted that the disparity in representation was likely attributable to

socioeconomic factors and not to a design to exclude non-white citizens from the venire.

Accordingly, the defendant has failed to establish that his right to be tried by a fair cross-

section of the community was violated.

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Conclusion

Having discerned no error, we affirm the judgments of the trial court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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