State v. Long

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. ODUS EUGENE LONG

Direct Appeal from the Criminal Court for Jackson County

No. 96-124 J. O. Bond, Judge

No. M1998130-CCA-R3-CD - Decided May 25, 2000

Defendant was convicted of first degree murder by a Jackson County Jury, and sentenced to

life imprisonment. Defendant now appeals as of right, and raises three issues, arguing (1) the

evidence is insufficient to sustain his conviction because the State did not prove premeditation; (2)

the trial court committed reversible error when it allowed a hearsay statement by the deceased into

evidence; and (3) the trial court committed reversible error when it did not allow an audiotape to be

played for the jury during deliberations, despite the fact that the tape had been previously played and

introduced into evidence as an exhibit. While the evidence is insufficient to sustain a first degree

murder conviction, it does support a conviction for second degree murder. However, because we

also hold that the trial court erred in issues (2) and (3), we reverse Defendant’s conviction and

remand for a new trial.

Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and

Remanded for new trial

WOODALL , J., delivered the opinion of the court, in which SMITH, J. and LAFFERTY, S.J. joined.

Lionel Barrett, Nashville, Tennessee, on appeal; Edwin Sadler, Tennessee, at trial, for the appellant,

Odus Eugene Long.

Paul G. Summers, Attorney General, Todd R. Kelley, Assistant Attorney General, Tom P.

Thompson, District Attorney General, John Wootten, Jr., Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

Defendant Odus “Blue” Eugene Long appeals from his conviction of first degree murder

following a jury trial. We hold that there is insufficient evidence of premeditation to support

Defendant’s conviction of first degree murder; however, there is sufficient evidence to support a

conviction for second degree murder. Nevertheless, we also hold that the trial court committed two

errors at trial, both of which are reversible error. Accordingly, we reverse Defendant’s conviction

and remand for a new trial on the charge of second degree murder.

I. Facts

The evidence presented at trial established that Lillian Burgess reported her daughter,

Ramona Long, age 38, missing on July 31, 1996. The report, filed in Putnam County, described

Ramona as an alcoholic and indicated that she had tried to commit suicide. At the time this report

was filed Ramona was legally married to Defendant’s son, Ricky Long, but she was separated from

Ricky, and lived with Defendant in Jackson County as man and wife. Ramona was known to have

an alcohol problem and a tumultuous relationship with Defendant, and thus it was not uncommon

for her to leave the Defendant and return to living with him some time later. During these times she

dated other men. It was also well known that Defendant frequently physically abused Ramona and

held her against her will.

It appears that common knowledge of the type of relationship between Defendant and

Ramona caused law enforcement officers to delay their investigation of the report, and it was not

until August 5, 1996, that law enforcement officers initially visited Defendant’s residence in Jackson

County. On August 6, 1996, officers of the Putnam County and Jackson County sheriff’s

departments again went to Defendant’s residence. The officers arrived around 12:30 PM, and

although the officers knocked on the door and looked around the property, they did not find anyone.

A neighbor stated that Defendant was probably home because all of Defendant’s cars were parked

at the residence. The deputies continued to look around, and they noticed what they perceived to be

possible blood stains on the frame of the front door. They found what they thought was a piece of

bloody carpet across from the house on the other side of the road abutting Defendant’s property, as

well as a hoe handle in the garage that appeared to have blood spatters on it. The officers also found

a sunken area of ground behind the garage that looked as if something had been buried there. Based

on their observations the officers decided to get a search warrant for Defendant’s property for the

person of Ramona Long. Deputy J.B. Hix of the Jackson County Sheriff’s Department left to get

a warrant and the remainder of the deputies stayed at Defendant’s property.

Deputy Hix returned approximately one to one and one-half hours later with a warrant, and

several officers entered the house. Defendant was waiting in a first floor bedroom with a rifle, and

told Deputy Hix to leave the house in explicit language. All the officers promptly exited the

residence, and Defendant came to the front door in an attempt to re-lock the door. At this point

Putnam County Deputy Doug Burgess started talking to Defendant because Burgess was a cousin

of Ramona Long, and knew Defendant personally. Defendant asked Burgess to come up to the front

door and talk with him, and Burgess did so.

Burgess talked with Defendant for the next three to four hours. During this time Burgess

explained what the deputies were doing, why they had a search warrant, and tried to get information

from Defendant regarding Ramona Long’s whereabouts. Also during this time Defendant continued

to be in possession of a rifle. Defendant initially stated that Ramona was not at the house, and had

left with someone in an old pick-up truck. At some point Defendant asked Burgess what the

situation would be if Defendant had killed Ramona. Burgess indicated that a proper burial would

be appropriate, and as they continued talking Defendant threw a set of keys out of the house.

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Burgess inquired what the keys were for, and Defendant replied that they were for the bulldozer

parked on Defendant’s property, and that Ramona Long was buried in front of the bulldozer.

Defendant stated that he and the deceased had a fight, and that she committed suicide by shooting

herself in the head with a pistol. Defendant then threw the pistol out the door. Burgess continued

to negotiate with Defendant because Burgess did not know how to operate the bulldozer, and

Defendant agreed to come out of the house to operate the machine to unearth the deceased. As a

condition to this agreement Burgess had to move all the law enforcement officers present to the edge

of Defendant’s property, and Defendant would be allowed to return to the house when he had

finished operating the bulldozer.

Defendant, still armed with a rifle, came out of the house, used the bulldozer to uncover the

deceased, and returned to the house without incident. Burgess continued to talk to Defendant, who

was threatening suicide. Defendant agreed to surrender if he would be allowed to walk over to the

deceased’s body and see her one last time. Once again, the officers on the scene backed to the edge

of Defendant’s property, and Defendant, armed with the rifle, came out of the house and went to the

grave. After a moment Defendant put the rifle down and surrendered, and he was taken into custody.

After Defendant was taken into custody he waived his rights and spoke with Deputy Hix and

Agent Roy Copeland of the Tennessee Bureau of Investigation (TBI). Both officers testified at trial

regarding their respective interviews with Defendant. According to their testimony, Defendant told

them that on July 26, 1996, Defendant and Ramona had a fight while Ramona was on the phone with

her mother, and Ramona then left the house escorted by sheriff’s deputies, who had been called by

her mother. The next time Defendant saw Ramona was on July 31, 1996, at a bar called the Green

Fly. She came back home with Defendant, and they had a fight. Ramona tried to cut Defendant with

a knife, but he knocked her knife-hand away, and the knife inflicted a flesh wound on Ramona’s

neck. On Thursday, August 1, she slept in until midday, and took 12 to 15 Valium that night. Early

in the morning hours of August 2, she asked for a wet rag (for her neck wound) and a Coke.

Defendant got the cloth, then left the bedroom to get the drink, and while in the kitchen he heard a

gunshot. Defendant stated that Ramona shot herself in the bedroom with the gun that Defendant kept

in a drawer next to the bed. Afterwards Defendant washed Ramona off, and laid her in the closet

wrapped in a blanket. He cleaned the bedroom to remove bloodstains, and cut-out the parts of the

mattress that were stained with blood. Defendant buried Ramona in the morning on Saturday,

August 3, and then cut out the carpet in the closet because it was soaked in blood. Defendant told

Agent Copeland that he did not call the authorities about Ramona’s death because he was scared and

afraid and also planned to commit suicide. Defendant stated that he was also scared that the

authorities would accuse him of killing Ramona.

The search of Defendant’s property on August 6, 1996, uncovered several items with what

appeared to be human bloodstains, including a washcloth, the piece of carpet that deputies noticed

across the road, mattress material (contained in a bucket), a piece of mattress, and pieces of burned

and torn currency that were found in a wood stove. Swabs were taken from the apparent bloodstains

on the doorframe. A handwritten note on yellow paper was also recovered by Deputy Hix, but the

note disappeared before trial. At trial Shelly Betts, a TBI forensic scientist, testified that she

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confirmed the presence of bloodstains on the mattress material, piece of mattress, money, washcloth,

and carpet. She was not able to match those stains to any particular individual because no

“standard,” or blood sample from a person, was submitted for purposes of comparison.

At trial the State sought to prove that Defendant committed premeditated murder. Although

the defense did not present any evidence, the defense opening and cross examination of prosecution

witnesses tried to show that Ramona Long committed suicide. One piece of evidence pertinent to

both theories was a tape cassette found in Defendant’s garage during the initial search of Defendant’s

property. Agent Copeland was made aware of this tape by James Smith, a reserve Putnam County

Sheriff’s deputy whose sister lived with Defendant’s son. Smith informed Copeland that his sister

had promised Defendant that she would get two cassette tapes from Defendant’s garage. Copeland

asked Defendant about the tapes, and Defendant acknowledged their existence and volunteered their

location in the garage–which was consistent with the information provided by Smith. Copeland then

recovered the tapes.

One of these tapes was introduced at trial as an exhibit and played for the jury. The tape

contains an extended soliloquy by Defendant, in which Defendant talks about Ramona in the present

tense, reveals how he and Ramona planned their respective suicides, divides up his property among

his children, and discusses funeral arrangements. However, Defendant also refers to a fight in which

Ramona had a knife, and how in the fight Ramona was accidentally cut with the knife on the throat.

On the tape Defendant explains that this injury made talking very difficult for her, and that was why

she did not record her wishes on the tape along with Defendant. Defendant also refers to Ramona

in the past tense in at least three places. The components of Defendant’s speech were not recorded

without interruption–the sound of the recording device clicking on and off again is audible several

times throughout the tape.

The State attempted to discredit the theory of suicide through testimony and evidence that

contradicted such a theory. For example, the State tried to show that Defendant had motive to kill

Ramona. Agent Copeland testified that he and Deputy Hix searched Defendant’s property two

additional times while Defendant was incarcerated pending trial. Each time Defendant consented

to the search and assisted the officers in the search. The first search was for the spent shell casing

and the bullet that killed Ramona, and was not successful. During the search Defendant discussed

the events during the days preceding the murder with the officers. Copeland testified that at one

point one of the deputies commented that Ramona did not deserve what happened to her, and

Defendant replied “well by God she shouldn’t have done what she done” in an “angry type voice.”

When Copeland asked Defendant to elaborate, Defendant paused and stuttered “like a ha, or

something of that affect (sic). And then he said–I asked him again at that point what she had done,

and he said, well she laid down in there and shot herself.” Defendant also discussed with the officers

Ramona’s infidelities, and Copeland asked if Ramona’s activities with other men caused Defendant

to be angry with her. Copeland testified that Defendant “asked me if it was my wife, he said, quote,

wouldn’t you have got mad?”

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The State also tried to show motive through the testimony of David Fox, who was employed

as a Jackson County Sheriff’s Deputy in the summer of 1996. Fox testified that he responded to a

domestic violence call at Defendant’s residence on July 26, 1996. At that time Ramona indicated

that she wished to go to her mother’s house in Putnam County, and Fox offered to drive her to the

Putnam County line. When Fox left with Ramona, Ramona directed him to turn in a different

direction than the county line in order to show Fox where Defendant was growing some marijuana:

Q: Now, did [Ramona] ask you about what not to do with that information?

A: Yes, sir.

Q: And what was that?

A: She said if I told [Defendant]–if he found out she had told me that he would kill her.

In addition to showing motive the State tried to highlight inconsistencies in Defendant’s

suicide theory. During the first search of Defendant’s property after Defendant’s incarceration

Copeland also asked Defendant about the presence of bruises on Ramona’s body. Defendant

explained that he had not put the bruises on her, and that she had the bruises when she reunited with

Defendant on Wednesday, July 31, 1996. However, Copeland also testified that Defendant conceded

that he had “beat the hell out of her before.” The State contradicted Defendant’s explanation by

presenting testimony of Ramona’s friend, Vicki Holliman, who was with Ramona on the night of

July 31st. Holliman testified that prior to going to the Green Fly, while Ramona was dressing to go

out, she saw Ramona nude from the waist up, and that there were no bruises on her body–the only

marks were carpet burns on Ramona’s knees. The State also presented the testimony of Charles

Harlan, M.D., who autopsied Ramona Long’s body. Dr. Harlan testified that at the time of the

autopsy there were two bruises above Ramona’s left clavicle, one on the upper left arm, and one on

the left thigh. Dr. Harlan testified on cross examination that the bruises would have occurred prior

to death or within 15 to 20 minutes after death.

As to physical evidence of suicide, James Russell Davis II, a TBI forensic scientist, testified

that he tested samples of matter taken from the skin of Ramona’s right hand, and that these samples

tested negative for gunshot residue. He conceded on cross examination that it was possible that the

decomposition of a body could lead to the dissipation of gunshot residue from the skin. Dr. Harlan

testified that the gunshot wound that killed Ramona was a “tight contact” wound on the right side

of Ramona’s head. Dr. Harlan testified that this type of wound is created when the muzzle of a

weapon is placed tightly against the skin and fired. Dr. Harlan acknowledged on cross examination

that tight contact gunshot wounds are “frequently seen in individuals who commit suicide. That type

of wound is not exclusively seen with suicide however.”

The State also presented several witnesses who testified to Defendant’s demeanor in the few

days after Ramona’s death and before Defendant’s arrest. Vicki Holliman testified that she went to

Defendant’s residence on August 5, 1996, with Ramona’s mother, Lillian Burgess, to pick-up the

outfit that Ramona wore on July 31, because the outfit belonged to Holliman. Defendant told

Holliman that Ramona had left with another person, and that Ramona took the outfit with her when

she left.

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Lewis Paul Lawson testified that he went over to Defendant’s house to play pool on Sunday,

August 4, 1996, along with Defendant, Defendant’s son, and some other men. They played pool in

Defendant’s garage, and Lawson testified that a bad smell was present. Lawson asked Defendant

about the smell, and Defendant said he thought that his dogs might have brought a dead animal near

the residence. Lawson testified that Defendant acted normal.

Roy Thomas testified that he hired Defendant to do some “bushhogging”–or work clearing

land–with Defendant’s bulldozer some time on the weekend of August 3 and 4, 1996. Defendant

came over to Thomas’ house early one morning, and performed the work. Thomas testified that

Defendant acted normal.

Suzanne Long, Defendant’s granddaughter, testified that she was employed with Ramona at

Osh Kosh B-Gosh. She stated that on Monday, August 5, 1996, at the behest of Defendant, she

attempted to collect Ramona’s paycheck for the month of July. Defendant told her that Ramona

would like Suzanne to collect the check. Tommie Donohue, human resources manager at Osh Kosh

B-Gosh testified that as per company policy she refused to give the check to Suzanne because

Suzanne did not have written authorization from Ramona. Defendant called Osh Kosh after Suzanne

attempted to collect Ramona’s paycheck, and Defendant asked if Suzanne had indeed received the

check. Donahue explained why the company could not give the check to Suzanne.

Finally Jackson County Deputy Sheriff Kenneth Bean testified that he visited Defendant’s

house on the evening of August 5, 1996, to look for Ramona. Defendant told Bean that Ramona left

with someone in a pick-up truck on August 2, 1996, and was not at the house. Defendant stated that

he tried to pick-up Ramona’s paycheck because she called him on August 4, and asked him to pick

it up because her back was hurting. Defendant then allowed deputies to search the house for

Ramona. Bean testified that when the deputies were in the bedroom Defendant walked over to the

closet without being prompted or instructed, ran his hands across the clothes in the closet, “and said,

look she’s not in here, and kind of smiled at us, and we went on looking through the rest of the

house.”

II. Analysis

Defendant presents three issues in this appeal. First, Defendant argues that the evidence is

insufficient to sustain his conviction because the State did not prove premeditation. Second,

Defendant argues that the trial judge committed reversible error when it allowed a hearsay statement

by the deceased into evidence. Finally, Defendant argues that the trial judge committed reversible

error when it did not allow the audiotape of Defendant’s making to be played for the jury during

deliberations, despite the fact that the tape had been previously played and introduced into evidence

as an exhibit. We hold that there is insufficient evidence of premeditation to support Defendant’s

conviction of first degree murder. We also hold that the trial court erred when it admitted the

hearsay statement into evidence, and it was error not to allow the jury to listen to the tape.

A. Sufficiency of the evidence

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Defendant contends that there is insufficient evidence to support his conviction of

premeditated first degree murder because the State introduced no evidence of premeditation. We

agree, but hold that there is sufficient evidence to support a conviction of second degree murder.

When an accused challenges the sufficiency of the convicting evidence, the standard is

whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. State v.

Shepherd, 902 S.W.2d 895, 903 (Tenn. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 322-25

(1979)). The sufficiency of the convicting evidence must be examined in light of all the evidence

presented to the jury, including that which is improperly admitted. Lockhart v. Nelson, 488 U.S. 33,

41-42 (1988); State v. Longstreet, 619 S.W.2d 97, 100-101 (Tenn. 1981). Questions concerning the

credibility of the 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, not this Court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this Court reweigh or reevaluate the evidence.

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

A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all

conflicts in favor of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all reasonable inferences

therefrom. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the burden in this Court of

illustrating why the evidence is insufficient to support the jury verdict returned by the trier of fact.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A crime may be established by circumstantial evidence alone. State v. Tharpe, 726 S.W.2d

896, 899-900 (Tenn. 1987). However, before an accused may be convicted of a criminal offense

based only on circumstantial evidence, 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 (Tenn. 1971). In other words, 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 inferences save the guilt of the defendant beyond a reasonable doubt.” Id. at

613.

Defendant was convicted of first degree murder in violation of Tennessee Code Annotated

§ 39-13-202(a)(1). At the time of Defendant’s offense this code section defined first degree murder

as the “premeditated and intentional killing of another.” Id. (1997).

As used in subdivision (a)(1) “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

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decided to kill must be carefully considered in order to determine whether the

accused was sufficiently free from excitement and passion as to be capable

of premeditation.

Id. § 39-13-202(d). Intentional is defined elsewhere in the code as referring “to a person who acts

intentionally with respect to the nature of the conduct or to a result of the conduct when it is the

person’s conscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-

106(a)(18) (1997).

By comparison, at the time of Defendant’s offense second degree murder was defined as a

knowing killing of another. Id. § 39-13-210(a)(1). Knowing is defined in the code as referring:

to a person who acts knowingly with respect to the conduct or to circumstances surrounding

the conduct when the person is aware of the nature of the conduct or that the circumstances

exist. A person acts knowingly with respect to a result of the person’s conduct when the

person is aware that the conduct is reasonably certain to cause the result[.]

Id. § 39-11-106(a)(20).

When a homicide is proved at trial it is presumed to be second degree murder, and the State

bears the burden of proving the element of premeditation sufficient to raise the offense to first degree

murder. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Brown, 836 S.W.2d 530, 543

(Tenn. 1992). The element of premeditation is a question for the jury which may be established by

proof of the circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn.

1997). Our Supreme Court has observed that there are several factors that tend to support the

presence of premeditation, including (1) the use of a deadly weapon upon an unarmed victim, (2) the

particular cruelty of the killing, (3) declarations by the defendant of intent to kill, (4) evidence of

procurement of a weapon, (5) preparations before the killing for concealment of the crime, and (6)

calmness immediately after the killing. Id. (citing Brown, 836 S.W.2d at 541-42; West, 844 S.W.2d

at 148).

With these factors in mind we turn to the State’s argument that there is sufficient evidence

to show premeditation. The State’s brief asserts that premeditation may be inferred because (a) the

“victim had engaged in sexual relations with other men”; (b) Defendant “admitted that Ramona

‘slept around’ and that he was ‘angry with her’ for that”; (c) Defendant “admitted that he had ‘beat

the hell out of her before’ in the past due to her indiscretions”; (d) the “victim had expressed her

fear” of Defendant; (e) when “the victim’s mother and sister went to the defendant’s in search of

Ramona that the defendant told them that she had left with another individual” (sic); (f) Defendant

told the same story in (e) to Jackson County Sheriff’s Deputy Kenneth Bean; (g) Defendant “acted

normally when a group of friends came to his house to shoot pool after Ramona’s death”; (h) when

officers came to Defendant’s home on August 6, 1996, Defendant asked Deputy Doug Burgess

“What if I killed her?”; (i) Defendant recovered Ramona’s body for law enforcement after hiding it;

(j) Ramona died from a close range gunshot wound to the right temple; (k) Ramona had a knife

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wound on her neck; (l) Defendant admitted that he caused the knife wound; (m) Ramona’s hands did

not test positive for particles of gunshot primer residue.

We think the above evidence proves that Defendant knowingly killed Ramona Long. It does

not prove that he did so in a premeditated fashion. On appeal, the State makes the same erroneous

argument made at trial, and argues that premeditation is proved by the voluminous amount of

evidence regarding Defendant’s actions after the killing, including interactions with other persons,

Defendant’s inhospitable reception of law enforcement officers at his residence on August 6, 1996,

and Defendant’s own statements to law enforcement in which Defendant described his efforts to hide

evidence of the killing. However, “[t]he concealment of evidence may be associated with the

commission of any crime and the accompanying fear of punishment. One who kills another in a

passionate rage may dispose of the weapon when reason returns just as readily as the cool,

dispassionate killer. The fact that evidence is subsequently hidden from the police reveals nothing

about a criminal’s state of mind before the crime.” West, 844 S.W.2d at 148.

The Bland categories from which premeditation may be inferred are not met by the proof in

this case. While there was no evidence the victim was armed, likewise, there was no evidence

presented that showed Ramona was unarmed when she was killed. Nor was there any evidence that

the killing was particularly cruel. The State presented substantial proof about what Defendant did

after the killing, but there was no evidence that Defendant made preparations to kill Ramona, or

voiced his intent to kill her to any person. There is no proof of procurement of a weapon by

Defendant. It is true that calmness immediately following a killing may constitute evidence of

premeditated murder, Bland, 958 S.W.2d at 660, but here we find no evidence in the record

regarding Defendant’s behavior immediately following the crime. Evidence of Defendant’s conduct

at more remote points of time after the homicide is not directly probative of Defendant’s mind set

at the time of the killing. West, 844 S.W.2d at 148.

When the proof at trial is not sufficient to support the greater offense, but is sufficient to

support a lesser included offense, this Court has the authority to order a reduction in the degree of

the offense for which Defendant could be convicted. State v. Tutton, 875 S.W.2d 295, 297 (Tenn.

Crim. App. 1993) (quoting Bandy v. State, 575 S.W.2d 278 (Tenn. 1979)). When the evidence is

considered in the light most favorable to the State there is sufficient evidence of a knowing killing.

In conclusion, there is insufficient evidence of premeditation to support Defendant’s

conviction of premeditated first degree murder. There is sufficient evidence of a knowing killing.

However, as discussed in parts IIB and IIC of this opinion, errors committed by the trial court require

a reversal and remand for a new trial. As a result, Defendant’s new trial must comply with the

limitations set forth in the Double Jeopardy Clause of the federal Constitution. U.S. Const. amend.

V. Defendant may not be retried for first degree murder. Burks v. United States, 437 U.S. 1, 11

(1978); Greene v. Massay, 437 U.S. 19, 24 (1978); Longstreet, 619 S.W.2d at 100-101. The highest

charge that Defendant may be tried upon on remand is second degree murder.

B. Admission of hearsay

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Defendant argues that the trial court erred when it admitted hearsay testimony from David

Fox regarding the content of a statement made by Ramona Long prior to her death. The State

contends that the statement was not offered for the truth of the matter asserted, and was thus properly

admitted as non-hearsay. We hold the statement was hearsay, and improperly admitted. We also

hold that this error was not harmless.

As discussed in the facts section of this opinion, the challenged testimony was given by

David Fox, a Jackson County Sheriff’s Deputy in the summer of 1996. Fox testified that he

responded to a domestic violence call at Defendant’s residence on July 26, 1996. At that time

Ramona indicated that she wished to go to her mother’s house in Putnam County, and Fox offered

to drive her to the Putnam County line. When Fox left with Ramona, Ramona directed him to turn

in a different direction than the county line in order to show Fox where Defendant was growing some

marijuana:

Q: Now, did [Ramona] ask you about what not to do with that information?

A: Yes, sir.

Q: And what was that?

A: She said if I told [Defendant]–if he found out she had told me that he would kill her.

Defendant objected to this line of questioning before it commenced and objected again during

the testimony. The trial judge overruled Defendant’s objection, apparently holding that the evidence

was admissible under Tennessee Rule of Evidence 803(2) as an excited utterance, and in the

alternative as a Rule 803(3) statement concerning Ramona’s then existing state of mind. Defendant

argues that the statement regarding Ramona’s fear of Defendant was improperly admitted because

it is hearsay, and not within any of the hearsay exceptions. The State concedes that the trial court’s

rationale for admitting the evidence was incorrect, but argues that the testimony was nonetheless

correctly admitted because the testimony is not hearsay. The State points out that Ramona’s state

of mind was an issue at trial because Defendant raised suicide as a Defense in both Defendant’s

opening and cross examination of prosecution witnesses. Accordingly, the State reasons that the

testimony given by Deputy Fox was not offered to prove that Defendant killed Ramona, but rather

to show that Ramona was afraid of Defendant, thus removing the testimony from the hearsay rule.

We first note that the State is correct in asserting that Ramona’s state of mind was at issue

in the trial. Defendant’s opening statement suggested that Ramona committed suicide. Defense

counsel vigorously cross examined three of the prosecution witnesses that preceded Deputy Fox, and

each time counsel discussed the issue of suicide. Accordingly, evidence regarding Ramona’s state

of mind at a time near that of the murder was indeed relevant. We also agree that the State did offer

Deputy Fox’s testimony as evidence of Ramona’s state of mind. However, it is abundantly clear that

the State offered Fox’s testimony primarily to prove that Defendant killed Ramona. In the bench

conference immediately preceding the relevant line of questioning, the following exchange occurred:

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General: Surely to goodness you can’t talk about suicide all the time, and me not be

allowed to show a reason to kill her, the reason is two-fold. One about the

marijuana, two about the jealousy, the jealousy, and I’ve got–

Court: I’m more prone to let it in on, but not on the marijuana side of it, but on the

statement that’s already come in about her leaving him, taking her, dropping her

off at the county line, that’s the same testimony that come up, the same officer.

General: But also the reason that she said if he finds out I turned him in, he’ll kill me.

Defense: That’s speculation.

Court: There’s a whole lot of speculation. He couldn’t argue that to the jury, it wouldn’t

be proper, I don’t think. Unless he can prove somebody told him.

General: Told him–

Court: That she turned him in.

General: She wound up dead. That’s a logical reason and inference to draw

circumstantially from it. If you’re going to cut me off, just allow suicide, I might

as well fold up and go home.

Moreover, the prosecution revisited the issue in closing, emphasizing that Ramona’s

statement was evidence of Defendant’s motive to kill Ramona: “And think, Ladies and Gentlemen,

what she told David Fox on the night of the 26th, he’ll kill me if he finds out about that marijuana.

He’ll kill me.” The prosecution also raised the issue when rebutting Defendant’s closing: “and we

also know that she was scared to death, according to James Randolph, when she left that bar. She

left with this defendant but she was scared, he described that. He’ll kill me. He’ll kill me. That’s

what she told David Fox, he’ll kill me.” In short, Ramona’s statement, as proffered through Fox’s

testimony, was offered for the truth of the matter asserted, and thus constitutes hearsay.

Because the statement is hearsay, it is only admissible if it falls within one of the exceptions

to the hearsay rule set forth in Tennessee Rules of Evidence 803 and 804. A reading of the rules

makes clear that the only exceptions which could possibly apply are rules 803(2) and 803(3)–excited

utterances and statements regarding then existing mental, emotional, or physical condition. The trial

court admitted the testimony because the judge found the statement to be admissible hearsay under

either one of these exceptions. As to rule 803(2), the trial judge erred. There is no evidence in the

record that would support the contention that Ramona’s statement was an excited utterance. As to

rule 803(3), the trial judge also erred. It is true that the statement does show the mental state of

Ramona at the time the statement was made to Deputy Fox. However, “only the declarant’s conduct,

not some third party’s conduct, is provable by this hearsay exception.” Tenn.R.Evid. 803(3),

Advisory Comm’n Comments; State v. Leming, 3 S.W.3d 7, 17-18 (Tenn. Crim. App. 1998); State

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v. Farmer, 927 S.W.2d 582, 594-96 (Tenn. Crim. App. 1996). If the statement had been admitted

solely to prove Ramona’s conduct – that she was afraid of being killed and did not commit suicide

a few days later – the statement would have been admissible. However, it is clear the statement was

entered to prove Defendant’s conduct, not Ramona’s, and for this reason, it should not have been

admitted.

Having concluded that the testimony regarding the statement was admitted in error, we must

now decide if this error is harmless. Tenn.R.App.P. 36(b). We hold that it is not. Ramona’s

statement provides evidence that Defendant had a motive to kill Ramona. Although the State sought

to show that Ramona’s infidelity also provided a motive to kill, the proof also showed that this

promiscuous behavior was part and parcel of the relationship. Given the fact that this case rests

entirely on circumstantial evidence, we cannot say with confidence that the admission of Ramona’s

statement regarding the marijuana under the theory advanced by the State, did not affect the

judgment.

The correct remedy for the trial court’s error is the reversal of Defendant’s conviction and

remanding of the case for a new trial. See State v. Bordis, 905 S.W.2d 214 (1995) (remanding for

retrial when evidence insufficient to support first degree murder and trial court erred by failing to

redact highly prejudicial portions of defendant’s statement). When reversal and remand is based on

an error at trial, rather than evidentiary insufficiency, the Double Jeopardy Clause does not bar

Defendant’s re-trial. Burks, 437 U.S. at 15; State v. Shrum, 643 S.W.2d 891, 895 (1982). As stated

in part IIA, however, Defendant may only be tried for second degree murder or a lesser charge.

C. Refusal to re-play audiotape for the jury during deliberations

Finally, Defendant argues that the trial court committed reversible error during jury

deliberations when the jury asked to listen to the audiotape created by the Defendant (introduced as

an exhibit), and the judge did not allow the jury to re-hear the tape. The State concedes the trial

court erred, but contends that the error was harmless. We hold that the trial court erred, and that the

error was not harmless.

We are of the opinion that the trial court’s actions are governed by Rule 30.1 of the

Tennessee Rules of Criminal Procedure, which provides that “[u]pon retiring to consider its verdict

the jury shall take to the jury room all exhibits and writings which have been received in evidence,

except depositions, for their examination during deliberations, unless the court, for good cause,

determines that an exhibit should not be taken to the jury room.” Tenn.R.Crim.P. 30.1. The

Advisory Commission Comments further provide that the rule is mandatory unless the judge

determines that an exhibit should not be submitted to the jury, and suggests that appropriate reasons

for non-submission are (1) the exhibit would endanger the health and safety of the jurors, (2) the

exhibit may be subjected to improper use by the jury, or (3) a party may be unduly prejudiced if the

exhibit is submitted. Tenn.R.Crim.P. 30.1, Advisory Comm’n Comments.

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Here, the jury asked to rehear the tape during its deliberations. The judge informed the jury

that they could not listen to the tape again because the tape was prior testimony, and not an exhibit.

In so holding the trial court apparently equated the tape recording with a deposition. We do

not think that a tape recording, submitted as an exhibit, is analogous to testimony given via

deposition. A deposition is testimony given under oath, with the assistance of counsel, and when

entered into evidence “becomes part of the body of testimony as if it had been presented at trial. If

the deposition were taken into the jury room during deliberations, a danger exists that the jury might

place too great an emphasis on this one portion of the testimony.” State v. James Clayton Young,

Jr., No. 01C01-9605-CC-00208, 1998 WL 258466, at * 20, Rutherford County (Tenn. Crim. App.,

Nashville, May 22, 1998) no Rule 11 application filed. We do not think that the same concerns are

present with a tape recording submitted as an exhibit. See id. Moreover, the specific exclusion of

depositions by the rule, and the lack of reference to other types of evidence, necessarily requires that

all other evidence be treated as within the scope of the rule. As a result, the trial court erred when

it did not follow the guidelines set forth in Rule 30.1. Even if the trial court had considered these

guidelines, however, we think that there is no good cause to keep the tape from the jury. The

concerns voiced by the Advisory Commission are not present here, and we do not perceive any other

legitimate reason why the tape should not have been re-played.

Nor do we think that the trial court’s error is harmless. See Tenn.R.App.P.36(b). The fact

that the jury requested the tape to be played is instructive–the jury would not have so asked unless

at least one juror believed that the tape had some significance. The State argues that we may find

harmless error by placing ourselves in the role of the jury and guessing what the jury would think

of the tape. In the State’s view, the tape is prejudicial to Defendant’s case, and thus even if the jury

had listened to the tape they would not have reached a verdict other than that actually returned.

We do not think that the probative meaning of the tape recording is so readily apparent. The

statements set forth on the tape are disorganized, repetitive, muddled and sometimes barely

discernable. It is true that Defendant refers to Ramona in the past tense at least three

times–suggesting that the tape was made after her death. The State asserts that the tape is obviously

a post-homicide attempt by Defendant to manufacture evidence consistent with Defendant’s

assertion that Ramona committed suicide. While this theory may indeed be supported by the

statements on the tape, we do not think that the content of the tape necessarily excludes other

theories and constructions.

As previously discussed, the State’s case is entirely circumstantial. Given this fact, the fact

that the jury wanted to re-hear the tape, and the ambiguous nature of the statements on the tape

recording, we cannot say that the judge’s failure to re-play the tape for the jury was harmless.

As set forth in part IIB, the correct remedy for the trial court’s error is the reversal of

Defendant’s conviction and remanding of the case for a new trial. As stated in part IIA, however,

Defendant may only be tried for second degree murder or a lesser charge.

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III. Conclusion

For the above reasons we REVERSE the judgment of the trial court and REMAND for retrial

with all proceedings to be conducted consistent with this opinion.

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