State of Tennessee v. Adam Holmes

11/07/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 27, 2022

STATE OF TENNESSEE v. ADAM HOLMES

Appeal from the Criminal Court for Knox County

No. 111616 Steven W. Sword, Judge

No. E2021-01489-CCA-R3-CD

The defendant, Adam Holmes, appeals his Knox County Criminal Court jury convictions

of possession of a weapon by a convicted felon, second degree murder, and especially

aggravated robbery, arguing that the trial court erred by admitting into evidence a

Cellebrite cellular telephone data extraction report and the prior testimony of a State

witness and by permitting a State witness to testify remotely. Discerning no reversible

error, we affirm.

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

JAMES CURWOOD WITT, JR., P.J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, and TOM GREENHOLTZ, JJ., joined.

Susan E. Shipley, Knoxville, Tennessee for the appellant, Adam Holmes.

Herbert H. Slatery III, Attorney General and Reporter; Hannah-Catherine Lackey,

Assistant Attorney General; Charme P. Allen, District Attorney General; and TaKisha

Fitzgerald and Larry Dillon, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

The Knox County Grand Jury charged the defendant by presentment with

four alternative counts of unlawful possession of a firearm, three alternative counts of first

degree felony murder, one count of first degree premeditated murder, two alternative

counts of especially aggravated robbery, and five counts of criminal gang enhancement

related to the death of the victim, Daryl Singleton.1

At the October 2020 bifurcated trial, the defendant stipulated to his having a

prior felony conviction that prohibited him from possessing a firearm.2

Michael Mays, the records custodian for the Knox County Emergency

Communications 9-1-1 center, testified that a computer-aided dispatch report indicated that

a 9-1-1 call was placed on June 8, 2017 at 1:07 p.m., regarding “a shooting on Westcott

Avenue.” The caller identified the location of the shooting as “the Western Heights Baptist

Center.” The report indicated that an ambulance was dispatched to the scene and “staged

in the area until law enforcement got there.” The jury listened to an audio recording of the

9-1-1 call.

During cross-examination, Mr. Mays testified that the CAD report indicated

that “a suspicious black Ford Taurus” was seen leaving the scene with “[t]wo black males,”

“[o]ne with a backpack,” driving “on Oldham towards Elm” and that the vehicle “turned

off before Elm.”

Knoxville Police Department (“KPD”) Lieutenant James Burrell, a patrol

supervisor, testified that on June 8, 2017, he was working “secondary employment” with

KCDC, “the management of the developments where Western Heights is.” He said that in

this second job, he maintained “full police powers,” wore his KPD uniform, and drove a

patrol car. He explained that his patrol car had a video recording system that “automatically

activate[d]” when he turned on the emergency lights and that he wore a “body mic” that

captured audio recording “in conjunction with the video” from the vehicle. On June 8,

2017, Lieutenant Burrell responded to a call of a shooting “in front of the Baptist Center.”

As soon as he “pulled up onto the street,” he was “getting flagged down. And there was a

car in the middle of the street with a car door open. When I got out, I went in and I seen a

young man inside.” He checked but did not find a pulse on the victim. He asked bystanders

“what had happened, if they’d seen anything or anything like that.” He also called dispatch

“to get first responders and EMS up there pretty quick, ’cause I wasn’t getting a pulse.”

An EMS worker told Lieutenant Burrell that “they had seen somebody running at some

point in time and maybe getting into a car.” The jury viewed the video recording taken

from Lieutenant Burrell’s patrol car.

1

Co-Defendant Kenneth Cox was also charged in the first degree murder and especially aggravated

robbery counts of the presentment. The trial court severed the defendant’s trial from Mr. Cox’s, and Mr.

Cox’s trial was held first.

2

Whether the prior felony conviction involved the use of violence, use of force, or use of a deadly

weapon as charged in Counts 1, 2, 3, and 4 was considered by the jury in the bifurcated trial after they

rendered verdicts in Counts 1, 5, 6, 7, 8, 9, and 10.

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Shawn O’Brien worked for AMR ambulance service at the time of the

shooting. He and his partner responded to the shooting, and “when we got to Western

Heights, we staged to wait for the police department to clear the scene.” He explained that

staging meant that they were in “a standby mode, maybe a block or so away. And we just

wait for the police department to clear the scene so we can go in.” He staged the ambulance

“between McSpadden [Street] and Reed, on Oldham [Avenue]. Maybe 100 meters from

McSpadden.” While parked and waiting on the police, Mr. O’Brien saw “one car that came

around us and stopped by about 50 meters in front of us, and then two black males came

down the hill, which would be, I guess, to the south side there and -- not running, but

walking pretty hastily, which caught my attention. One of them had a backpack.” He saw

the two men go “to where this car was. And they both got in, like, either side.” He said

that the two men caught his attention because “how quick they were walking down the hill.

It wasn’t a normal pace. They’re obviously in a hurry, not running, but in a hurry. Once

they got in the car, . . . the car went pretty quick.”

During cross-examination, Mr. O’Brien acknowledged that the Baptist

Center on Scott Street is not visible from Oldham Avenue because of the terrain. He also

acknowledged that Oldham Avenue is a “prime thoroughfare to get to [Interstate] 275” and

that many black people lived in Western Heights.

Laketa Howard testified that she knew the victim by the nickname

“Cleveland.” She said that she had rented a car because her vehicle was being painted.

She said that the victim and “Colbie Curry” came to her house on the day that Ms. Howard

“was going to take the [rental] car back,” but “Colbie asked me could he keep the car. And

I was, like, yeah.” She denied that she allowed the victim to drive the rental car, saying, “I

didn’t know he had the car.” She said that it was her understanding that only Mr. Curry

would be driving the rental car. She said that Mr. Curry is the defendant’s nephew. She

did not know that the victim was driving her rental car until “[t]he day that he got killed.”

During cross-examination, Ms. Howard said that she rented a Hyundai

Elantra from the Hertz on Clinton Highway. She reiterated that she never gave permission

for the victim to be using or riding in the car.

Kristin Brown testified that she and the defendant have a son together. She

said that she was in nursing school at the time of the shooting and was also working as a

hair stylist. She said that in June 2017, she had “heard of” co-defendant Kenneth Cox,

whom she knew as “Bosten.” She said that the defendant’s mother lived in Western

Heights and acknowledged that she had “probably” given the defendant a ride to the

neighborhood the day of the shooting in her black Mazda. She explained that she and the

defendant would “wash clothes out there at his mother’s, and he helped his mother out a

lot.” She recalled that she “dropped him off and I think I ran to the Dollar Store or

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something.” She said that she returned later to pick him up and found the defendant

walking, not running, with Mr. Cox, and the defendant and Mr. Cox got in her vehicle. She

did not specifically remember seeing an ambulance, noting that it was common to see

ambulances in that area. Ms. Brown said that she spoke with the police about the incident

on June 8, 2017. She said that she also gave a statement to police on May 8, 2018, and that

she testified at Mr. Cox’s trial in April 2019.

During cross-examination, Ms. Brown said that when the defendant and Mr.

Cox got into her car, neither of them had a backpack or any other bag and neither was

holding anything in their hands. She also said that neither of them had blood on their

clothing.

Vanessa Clemons testified3 that on June 8, 2017, she was volunteering at the

Baptist Center in Western Heights. When asked whether she remembered hearing gunshots

that day, she said, “My memory is so bad, I don’t remember that.” She also said that she

was on medication and could not remember the events of that day. She responded to nearly

every question by saying that she could not remember. She reiterated that she had a

“condition” that “does not allow me to remember.”

During cross-examination, Ms. Clemons said that she remembered working

at the Baptist Center in June 2017. She again responded to nearly every question by saying

that she did not remember.

Rachel Warren, a crime scene technician with KPD, testified that she

responded to the shooting on June 8, 2017, and photographed the scene. She said that it

was her usual practice to “never touch anything until the representative from the medical

examiner’s office gets there and takes their photos.” She said that she took her “initial

photographs” but did not touch anything. She determined that the victim had an “apparent

gunshot wound” to “the right side of his head.” She noticed “some cash inside that door

pocket,” which was later determined to be $6,000. Officer Warren took additional

photographs after the medical examiner arrived. She also collected fingerprints from the

vehicle. Her partner, Stephanie Housewright, swabbed areas of the vehicle “for possible

touch DNA.”

Officer Warren photographed three shell casings that were found “to the right

rear of the vehicle,” which shells officers later determined “had been run over,” and they

“were kind of weary of them actually being involved in this crime scene.” Another shell

casing was found “in front of [a] blue Acura.” She said that she collected all of the shell

casings from the scene and noted that several of the shell casings were .40 caliber and at

3

Ms. Clemons testified via two way video-conferencing due to a postitive COVID-19 diagnosis.

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least one was stamped with “Federal .40 caliber.” After the vehicle was towed away,

officers found a shell casing that had been underneath the vehicle, which shell casing

Officer Warren described as “perfectly intact” and not bent.

Inside the vehicle, Officer Warren found a cellular telephone under a hat and

Hertz rental car paperwork in the glovebox that showed the vehicle had been rented to

Laketa O’Neil. In the middle console of the vehicle, Officer Warren found $18 cash and a

wallet. She found a blue “folder” in the visor of the vehicle that contained a certificate of

title “to some kind of Chevrolet vehicle” that “had been issued to Adam Holmes” with an

address of 2335 Jefferson Avenue. The back of the title indicated that the defendant had

sold the vehicle to the victim on June 6, 2017. After the medical examiner processed the

victim’s body, Officer Warren collected the victim’s clothing and anything of evidentiary

value collected from the victim, including a “DNA card” and “the bullet that was retrieved

from the victim’s head.”

During cross-examination, Officer Warren testified that she recovered two

cellular telephones from the vehicle and “some memory devices” from the glovebox. She

said that the shell casings found behind the vehicle did not appear to have been fired

recently because they appeared to have been run over. She said that the shell casing found

under the vehicle was a 9-millimeter caliber. She said that she “would assume that

someone had just accidentally kicked that [shell casing] underneath the car” but

acknowledged that she did not see anyone do so.

KPD crime scene technician Stephanie Housewright testified that she

assisted Officer Warren in processing the scene of the victim’s shooting. She said that she

“took swabs of the vehicle” for DNA testing.

Terra Asbury, a special agent forensic scientist for the Tennessee Bureau of

Investigation (“TBI”), testified that she performed DNA testing on several swabs taken

off the vehicle. She also received buccal swabs from the defendant and Mr. Cox for

comparison. She determined that a swab taken “from the exterior front passenger door

handle” of the vehicle contained the DNA of the victim. All other swabs contained DNA,

the profile for which was inconclusive. She explained that for some DNA samples, the

profiles “were inconclusive” because the samples were “insufficient or had too complex

a mixture for me to be able to determine a DNA profile,” while other samples “were from

an unknown male individual,” which profile “did not match any of the standards that I had

received.” During cross-examination, Agent Asbury said that none of the DNA samples

that were from an unknown male matched the DNA profiles of the defendant or Mr. Cox.

Tim Schade, who worked as a certified latent print examiner with KPD at the

time of the shooting, testified that he processed 14 fingerprint cards collected from the

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crime scene, 12 of which “were good enough to be identified.” A left palm print “taken

from the exterior above the front passenger door” matched a Willie Lester Robinson. A

left palm print taken from “the exterior rear passenger door” matched a Jasmine Latrice

Hollingsworth. A right middle finger print taken “from the exterior rear driver door,” a

left middle finger print taken from “the exterior front driver door,” a right middle finger

print taken from the “exterior rear driver door,” and a left palm print taken “from the

exterior front driver’s door” matched the victim. During cross-examination, Mr. Schade

testified that none of the prints that he examined belonged to the defendant or Mr. Cox.

KPD Violent Crimes Investigator Jeff Day testified that he was the lead

investigator in this case. When he arrived at the scene, he saw that the driver’s door to the

victim’s vehicle “was opened” and the “victim was in the driver’s seat.” He went to “the

other side of the Baptist Center” where “there was a bit of a crowd gathering” and “talked

to some people” and “got some information prior to coming back up to the scene.”

Investigator Day said that he was present when Investigator Brandon Wardlaw began

interviewing Ms. Clemons inside the Baptist Center, but Investigator Day “didn’t stay

there for the entire interview.” An audio recording of Ms. Clemons’ interview was

exhibited to the investigator’s testimony. Investigator Day said that Ms. Clemons gave a

“fairly detailed” account of the events and that it “appeared to [Investigator Wardlaw] . .

. that she did, in fact, see what happened.”

Investigator Day said that he met with Ms. Clemons on another occasion and

showed her two photographic arrays and that Ms. Clemons identified the defendant as one

of the men that she saw flee after the shooting. The next day, the defendant and Kristin

Brown, whom the defendant referred to as his wife, were “brought to the Safety Building

for an interview.” Officers collected three cellular telephones from the defendant and the

defendant’s vehicle. Investigator Day said that he interviewed the defendant and Ms.

Brown. The jury viewed the video recording of the defendant’s entire interview.

Investigator Day said that during the interview, the defendant told him that on the day of

the shooting, he and the victim had met to finalize the sale of the Chevrolet vehicle. The

defendant identified the victim as being in the driver’s seat of the vehicle and the defendant

as being in the front passenger’s seat. Investigator Day said that the defendant told him

that when he left the Baptist Center, the defendant’s girlfriend picked him up on Oldham

Avenue.

Investigator Day said that the data extracted from the defendant’s cellular

telephone “establishes the communication between [the defendant] and not only the

victim, but another person who could have been in the car.” In the defendant’s telephone,

he had two contacts identified as “Bosten” and “Debo,” the victim was identified as “Hit,”

and Ms. Brown was identified as “Wife.” Investigator Day determined Bosten to be Mr.

Cox and Debo to be Dennis Freeney. Investigator Day reviewed a synopsis of the

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defendant’s call log, which showed a series of telephone calls between the defendant and

Mr. Cox, Mr. Freeney, Ms. Brown, and the victim on June 8, 2017, between 10:57 a.m.

and 1:13 p.m. From the data extraction report, Investigator Day determined that the

defendant used his telephone to access Google on the evening of the shooting and “search

for Knoxville news” and to access a local news article about a shooting in the Beaumont

neighborhood. Other entries indicated that the defendant also looked at a “couple other

entries about an East Knoxville [s]hooting.” In the early morning of June 9, 2017, the

defendant used his telephone to “search for Knoxville bonding companies.”

Investigator Day said that he was present during Mr. Cox’s trial and heard

the testimonies of Ms. Clemons4 and Ms. Brown. The trial court held a jury-out hearing

and determined that a partial transcript of Ms. Brown’s prior testimony and the entire

transcript of Ms. Clemons’ prior testimony at Mr. Cox’s trial were admissible as

substantive evidence, and the transcripts were exhibited to Investigator Day’s testimony.

The transcript of Ms. Clemons’ prior testimony indicated that on June 8,

2017, she was volunteering at the Baptist Center on Scott Street in Western Heights when

she “heard a pop.” She looked out the window of the building and “saw a black guy. He

was leaned over in the car, where you could see . . . his brains laying out, whatever, from

the bullet wounds.” She also saw “a tall guy” who was standing “at the front of the car

on the passenger side” and “a shorter guy that got out of the back[seat]” on the passenger’s

side of the victim’s vehicle. She described the taller man as wearing a “headdress.” Both

men “took off running,” “ran halfway down the walkway, stopped,” and “the shorter guy

came back, walked around, . . . opened the driver’s side, opened the door, reached in, got

a duffel bag and a gun, a big, silver gun.” The shorter man “then went back to where the

tall guy was standing in the middle of the walkway and handed him the gun and the duffel

bag.” She then saw the two men run in the direction of “Mike’s” apartment, “a

neighborhood safe house.” When the police arrived and “asked if anybody seen

anything,” Ms. Clemons “kind of pulled ’em to the side and told ’em, you know, I didn’t

want to talk in front of everybody, but I wanted them to at least be knowledgeable to what

was going on.” During cross-examination by Mr. Cox’s attorney, Ms. Clemons testified

that she viewed a photographic array and “picked a person out of the lineup.” She also

said that she identified one of the men that she had seen as a tall guy with “[d]reads.”

During cross-examination, Investigator Day said that when Ms. Clemons

made an identification from a photographic array, he and Investigator Wardlaw were both

present. Investigator Day acknowledged that the defendant was “[r]oughly” five feet and

10 inches tall and said that the defendant was “not shorter than average by no means” but

that he did not consider the defendant to be tall. He estimated that Mr. Cox was “probably

4

Ms. Clemons’ name was Vanessa Teasley at Mr. Cox’s trial.

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five-seven or five-eight . . . . but he’s not five ten.” He said that “it appeared, based on the

evidence, that whoever was in the passenger side” of the victim’s vehicle “was the shooter”

and that, during the defendant’s interview, the defendant “placed himself in the passenger

side.” He acknowledged that the blood spatter on the front passenger seat was inconsistent

with someone’s “[b]eing seated in the front seat.” He explained that the evidence indicated

that the “angle of the shot came from that side” but that the shooter was “not necessarily

seated in the seat.” Investigator Day acknowledged that Josh Smith, a former KPD officer,

took possession of the defendant’s telephone to perform the data extraction and that

Investigator Day “did not stand over him and watch” him perform the extraction. He

acknowledged that Mr. Smith had been indicted for falsifying records at KPD.

Teri Arney, a former special agent with the TBI, testified as an expert in

firearms identification. In this case, Ms. Arney “received a bullet jacket and bullet core

from the victim’s head,” “a 9-millimeter caliber cartridge case,” and “four of the .40-caliber

cartridge cases.” She determined that all four of the .40-caliber cartridge cases “had been

fired by the same .40-caliber firearm” and that “[s]ome of the .40s had crushed case

mouths” and “were crumpled, which could happen if they were stepped on or run over.”

The 9-millimeter cartridge case was “a Winchester brand” and “looked like I would expect

something that had just been fired. It didn’t have any other damage other than what the

firearm did when it fired the cartridge case.” She determined that the bullet jacket removed

from the victim’s head was “a 9-millimeter caliber. And based on the design and the

material that it was made from, it’s consistent with Winchester brand silver tip

ammunition.” She could not determine whether the bullet came from the 9-millimeter

cartridge case recovered from the scene but said that it was consistent with “what I would

expect to see loaded in that brand of cartridge case.”

During cross-examination, Ms. Arney acknowledged that “there’s no way to

. . . match a fired bullet back to the cartridge case” without the firearm. She also

acknowledged that she could not determine from the bullet or cartridge casing the make of

firearm used. She acknowledged that a 9-millimeter firearm could not fire .40-caliber

shells.

KPD Officer Shannon Morris testified that she worked in digital forensics

and that she was “certified with Cellebrite, which is a cell phone forensic device.” She

said that she was not initially involved in this case and that only a couple of weeks before

trial, Investigator Day asked her to examine the Cellebrite data extraction report from the

defendant’s telephone and “make sure that that extraction came from that phone.” She

explained that to perform data extraction, “you take your iPhone charger and plug it directly

into our Cellebrite computer at the forensics lab. And it goes through and does what they

call an advanced logical.” She said that the only information that is input in the Cellebrite

computer is “[j]ust the data, the ones and zeros that’s stored in the phone.” The Cellebrite

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computer “provides what they call a physical analyzer, which is a forensic software that

puts . . . all those one and zeros in human readable format.” She said that it was not possible

for an examiner to corrupt or influence the data in Cellebrite and that “the created dates”

of data entries “are going to be the day that it was created on that device.”

Officer Morris testified that she reviewed the extraction report of Mr. Smith

and determined that he did not add anything to the report other than “his case notes . . . .

That’s the only thing that you can manipulate.” On Mr. Smith’s report, his case notes “just

said J. Smith was the examiner” and “‘iPhone SE.’” She concluded that the International

Media Equipment Identity (“IMEI”) on Mr. Smith’s data extraction report matched the

IMEI engraved on the defendant’s telephone. Officer Morris said that the data extraction

report indicated that on June 8, 2017, between 10:57 a.m. and 12:58 p.m., the defendant

placed and received a series of telephone calls with Mr. Cox and the victim. The defendant

also called Ms. Brown at 1:05 p.m., 1:06 p.m., and at 1:10 p.m., and received a call from

Ms. Brown at 1:13 p.m. Officer Morris said that the data extraction report also showed the

defendant’s “Google web history,” which indicated that beginning in the evening of June

8, 2017, the defendant accessed news articles titled, “Knoxville police: Man found shot to

death in car in Beaumont neighborhood,” “KPD investigating fatal shooting of male in

vehicle,” and “Police respond to reported shooting.” In the afternoon and evening of June

9, 2017, the defendant searched for “knoxville bonding companies” and “federal lawyer

Paula Knoxville tn” and accessed a web page titled, “Knoxville Lawyers - Find Your

Knoxville, TN Attorney or Law Firm.”

Dominique Bailey testified that she had known the victim for “[a]bout a

year” before his death and that the two of them had been in a relationship. She identified

a photograph of the victim wearing a cap and said that it was not a cap that he ordinarily

wore but that she had seen the cap before. She said that on the morning of the shooting she

had worked her job at “Jewelry Television.” She said that she had two sons, ages 11 and

six at the time, and that the victim had two sons close in age to hers. At the time of the

shooting, the victim’s sons “were on summer break, so they were at the house with my

boys.” She said that the victim planned “to leave out, and that he was going to go get the

boys something to eat and then bring it back and they were going to do something till I got

off of work.” She was aware that the victim had purchased a “Caprice Classic, box Chevy”

and “was trying to get the title transferred into his name, but he couldn’t get the title

transferred over because there was an issue with the lien or something on the title.” She

said that the victim purchased the vehicle from Mr. Curry, who “was kind of like a

middleman for [the defendant].” She said that the victim was not employed and

acknowledged that he sold drugs and owned a “black and silver” gun. The victim also

“carried a backpack sometimes, and then he had a black pencil bag” in which he kept

“[m]oney.” She said that the victim had the backpack and pencil bag with him at her house

that morning.

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Ms. Bailey said that she knew the victim had two cellular telephones and that

he was driving Ms. Howard’s rental car. She said that the victim also “had a Toyota Solara,

but he wasn’t driving that car at the time. It was parked.” The Chevrolet that he had

purchased from the defendant “was at a storage facility on Western Avenue . . . . Just

parked where he had his stuff at.” She said that the Chevrolet was “drivable, . . . but he

didn’t drive it.”

During cross-examination, Ms. Bailey acknowledged that she did not know

all of the victim’s business, saying, “I mean, I didn’t get into his personal -- what he did in

the streets . . . .” She said that when the victim left the house the day of the shooting, he

was planning to deal with the issue on the title to the Chevrolet. She said that the victim

was wearing a “stocking cap” under his hat the day of the shooting because “he had an

appointment to get his hair done.” She acknowledged that she did not see the victim leave

her house that day.

Doctor William Oliver, an assistant medical examiner at the Regional

Forensic Center in Knoxville, conducted the victim’s autopsy and testified as an expert in

forensic pathology. He determined that the victim’s “cause of death was a gunshot wound

to the head” and that the bullet entered the right side of the victim’s head, “right to left,

little bit upwards, little bit from front to back,” causing “a significant amount of damage to

the brain.” He said that the range at which the victim was shot was “indeterminant”

because “I can’t say there’s stippling present. There’s certainly no soot present.”

During cross-examination, Doctor Oliver testified that the caliber and length

of the firearm were important to consider “if you want to make a numerical estimate of the

range” from which a victim was shot. He also said that the type, milling, and “number of

grains of powder in the cartridge” can also help determine the distance at which a victim

was shot. He acknowledged that “you would not have any” powder or stippling at the

wound if the person wore a head covering. Doctor Oliver said that the blood and tissue

found on the victim’s baseball cap were “consistent” with the victim’s wearing the cap at

the time he was shot.

On redirect examination, Doctor Oliver said that the victim’s wound was

“not a contact gunshot wound.”

The State rested. After a Momon colloquy, the defendant elected not to

testify but did put on proof.

Paulette Sutton testified as an expert in bloodstain pattern analysis and crime

scene reconstruction. She testified that in this case, she reviewed crime scene photographs,

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the victim’s autopsy report, the medical examiner’s photographs, and “inventory sheets”

from the KPD. She testified that “the first responding officer . . . reported that he found

the vehicle with the driver’s door opened,” the driver’s window “partially opened,” the rear

driver’s side window closed,” the front passenger window closed, and the “the rear of the

car . . . partially opened.” She also testified that the victim “was initially reported as having

his right arm in the passenger seat, his left arm in his lap,” and “lean[ing] a little bit to his

right, or towards the middle of the vehicle.” She determined based on the bloodstain

patterns “that the keys were not in the ignition at the time” the victim was shot. She also

determined that the victim’s arm had “been straightened out more than it was at the time

the projected stains” from the gunshot “were created.” Based on the “continuous pattern”

of blood “all the way across . . . the console, across the [passenger’s] seat and onto the

lateral edge of the seatback,” Ms. Sutton concluded that “[t]here’s no indication that

anybody was in that front seat at the time of the gunshot” or that “an individual or an object

moved or was moved through that blood” “after the gunshot.” She also concluded, based

on “satellite spatters” of blood “that the front passenger door was closed at the time of the

gunshot or very close in proximity to the time of the gunshot.” Based on the blood pattern

and “apparent brain tissue” on the cap, she said that the victim was either wearing the cap

or it was lying in the passenger’s seat at the time he was shot. She concluded that it was

“certainly possible” and that she could not rule out the victim’s having been shot by a

person in the backseat of the vehicle.

Ms. Sutton also explained that the 9-millimeter cartridge casing would have

fallen outside of the car if the shooter had been outside of the vehicle and that if the shooter

were inside the vehicle, the cartridge casing could have gotten “caught in people’s clothing.

And as they exit the vehicle, they dump it out.” She said that the fact that the 9-millimeter

casing was found under the vehicle “[c]ertainly could be” consistent with the shooter’s

having been in the backseat of the vehicle.

During cross-examination, Ms. Sutton said that it appeared to her that the

victim had been moved after he was shot, specifically, she said that his head and arm had

been moved. She said that she believed that either the police or medical examiner moved

the victim’s body during their investigation. She also said that someone checking the

victim’s neck or wrist for a pulse could have moved the body. She said that based on

bloodstain patterns on the front passenger’s door of the vehicle, the door “ha[d] to be closed

either at the time or very quickly” or “a couple of seconds” after the victim was shot. She

agreed with Doctor Oliver’s assessment that the victim was not shot at “contact range.”

She acknowledged that it was possible that the shooter was outside of the vehicle on the

passenger’s side when he fired the shot.

The defendant rested.

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On this evidence, the jury found the defendant guilty of one count of unlawful

possession of a weapon in Count 1, four counts of second degree murder in Counts 5

through 8, and two counts of especially aggravated robbery in Counts 9 and 10. The State

dismissed Count 4.

The trial then continued as to Counts 1 through 3 for the jury to determine

the nature of the defendant’s prior felony conviction. Stephanie Ogle, the office supervisor

for the Knox County Criminal Court Clerk, testified that on April 25, 2002, the defendant

was convicted of aggravated robbery by “unlawfully, knowingly, [and] by violence”

robbing Frank McCoy, accomplishing the robbery “with a deadly weapon.” The State

rested, and the defendant put on no proof. As to Count 1, the jury found that the defendant

had a prior conviction for a felony involving the use of violence. The jury also found the

defendant guilty as charged in Counts 2 and 3 with the unlawful possession of a firearm

after having been convicted of a felony involving the use of force and a felony involving a

deadly weapon.

The State dismissed Counts 11 through 15 related to the criminal gang

enhancement.

After a sentencing hearing, the trial court merged the appropriate convictions

and sentenced the defendant as a Range II offender to an effective sentence of 40 years’

incarceration aligned consecutively to an 8-year sentence in a prior case. Following a

timely but unsuccessful motion for new trial, the defendant filed a timely notice of appeal.

In this appeal, the defendant argues that the trial court erred by admitting into evidence the

Cellebrite data extraction report and Ms. Clemons’ prior testimony and by permitting Ms.

Clemons to testify via two-way video conferencing.

I. Admission of Evidence

The defendant argues that the trial court erred by admitting the Cellebrite

data extraction report and Ms. Clemons’ prior testimony from Mr. Cox’s trial.

A. Cellebrite Data Extraction Report from the Defendant’s Cellular Telephone

The defendant challenges the admission of the Cellebrite data extraction

report from the defendant’s cellular telephone, arguing that the State failed to establish the

chain of custody of the physical cellular telephone from which the data was extracted and

that the data extraction report was not properly authenticated. The State argues that the

trial court did not abuse its discretion in admitting the report and, alternatively, that any

error in admitting the report did not prejudice the defendant.

-12-

1. Chain of Custody of the Defendant’s Cellular Telephone

The defendant contends that the State failed to establish the chain of custody

of the defendant’s telephone because Investigator Day gave the telephone to a KPD officer

who was subsequently terminated from the KPD for activities involving “computer

records” and “work time sheets.” The State argues that Investigator Day’s testimony

sufficiently established the complete chain of custody of the telephone.

The trial court held a jury-out hearing on the chain of custody of the cellular

telephones collected from the defendant. The trial court voir dired Investigator Day, who

said that he saw the cellular telephone in the defendant’s vehicle and instructed other

officers to seize it. Officer Danielle Sandborn brought the telephone to Investigator Day

in an “unmarked envelope” at the station, and then former officer Smith “came and got that

phone off of my desk, I believe, and took it to his” desk, which was “in the same room,”

and “does the [data] dump and then puts it back on my desk.” He said that the “phone

never left the office.” The cellular telephone that officers brought to him at the station

“looked to be the same cell phone I saw in the console of the car.”

The defendant cross-examined Investigator Day who acknowledged that he

did not see Mr. Smith perform the data extraction, noting that it took place “across the

room.”

The trial court determined that Investigator Day’s testimony established a

sufficient chain of custody and that the physical telephone was admissible.

“Whether the requisite chain of custody has been established to justify

admission . . . is ‘a matter committed to the discretion of the trial judge and [t]his

determination will not be overturned in the absence of a clearly mistaken exercise thereof.”

Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d 256, 267 (Tenn. 2009) (quoting Shell v.

Law, 935 S.W.2d 402, 409 (Tenn. Ct. App. 1996)). Accordingly, this court will not reverse

the trial court’s ruling on the chain of custody “unless the trial court ‘applied an incorrect

legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining.’” State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008)

(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

Although “it is ‘well-established that as a condition precedent to the

introduction of tangible evidence, a witness must be able to identify the evidence or

establish an unbroken chain of custody,” Cannon, 254 S.W.3d at 296 (quoting State v.

Scott, 33 S.W.3d 746, 760 (Tenn. 2000)), the general rule “does not require that the identity

of tangible evidence be proven beyond all possibility of doubt,” id. The State need not

“call all of the witnesses who handled the item.” Id. (citing State v. Johnson, 673 S.W.2d

-13-

877, 881 (Tenn. Crim. App. 1984)). So long as the State can “reasonably establish the

identity and integrity of the evidence, the trial court should admit the item into evidence.”

Id.

In our view, the trial court did not abuse its discretion in determining that the

chain of custody for the defendant’s cellular telephone was sufficient. Investigator Day

testified that he saw the telephone in the defendant’s vehicle and that he instructed crime

scene officers to collect the telephone into evidence. Officer Sandborn delivered the

telephone to Investigator Day at his office in an “unmarked envelope,” and Investigator

Day determined that the telephone “looked to be the same cell phone I saw in the console

of the car.” Investigator Day gave the telephone to Mr. Smith to perform a data extraction,

which Mr. Smith did without removing the telephone from the shared office and, after

which Mr. Smith returned the telephone to Investigator Day. Consequently, the trial court

did not err by finding that the State established a sufficient chain of custody for the

defendant’s cellular telephone or by admitting the telephone into evidence. See State v.

Brian C. Felix, No. M2021-00388-CCA-R3-CD, 2018 WL 2722796 at *23-24 (Tenn.

Crim. App., Nashville, June 6, 2018).

2. Authentication of Cellebrite Data Extraction Report

The defendant argues that the State failed to properly authenticate the

Cellebrite data extraction report because it “did not call any witness from the Cellebrite

Corporation” to authenticate the record and did not offer any business record or affidavit

to “authenticate or substantiate the contents, nature, or methodology of the extraction.”

The defendant also complains that the State failed to give adequate notice of its intent to

call Officer Morris as an expert witness, that the State failed to substantiate Officer Morris’

credential of having been “‘certified’ by Cellebrite,” and that Officer Morris “prepared no

report of her forensic conclusions.” The State argues that because the report was properly

authenticated and because Officer Morris did not testify as an expert witness, the trial court

properly admitted the report.

During a jury-out hearing, the State proffered the testimony of Shannon

Morris to establish a foundation for the Cellebrite data. On direct examination, Officer

Morris, a digital forensics analyst with the KPD, testified that she “do[es] the forensic

extractions and examinations” of “[a]ny electronic evidence, computers, phones, tablets.”

She said that former KPD officer Josh Smith did the original extraction of data from the

defendant’s cellular telephone in this case. She explained that to extract data from an

iPhone, “you plug them directly into your UFED Cellebrite device, which is the software

used to extract it. It will pull the ones and zeros off the phone and put it into my forensic

computer. And then the . . . Cellebrite software puts it in a human readable format.” She

said that once the data is “in a compressed zip file,” “you can’t manipulate it.” She said

-14-

that an examiner can add a note, such as “UFED logical extraction, iPhone SE,” as done in

this case, “but there’s no manipulating the ones and zeros” or the call log.

Officer Morris said that she reviewed the Cellebrite data extraction from the

defendant’s cellular telephone conducted by Mr. Smith and “matched it with the . . .

International Media Equipment Identity” (“IMEI”), which “stays with the phone no matter

who owns it; what device or what service goes with it, it stays the same. You cannot

manipulate it.” After checking the telephone’s IMEI against Mr. Smith’s extraction,

Officer Morris “did my own extraction,” and determined that “all the media, MMSs, notes,

everything was the same number-wise of what was extracted.” She said that based on her

training and expertise, Mr. Smith’s Cellebrite report is a fair and accurate representation of

the data extracted from the defendant’s telephone.

During cross-examination, Officer Morris testified that she began working

on this case only “about two weeks” before trial. She acknowledged that she was not

involved in the original data extraction performed by Mr. Smith.

The trial court found “sufficient evidence to find that the original report is

authentic and sufficiently free from any manipulation” and admitted Mr. Smith’s Cellebrite

data extraction report into evidence.

Tennessee Rule of Evidence 901 provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to the court to support a finding by the trier of fact that the matter in

question is what its proponent claims.” Tenn. R. Evid. 901(a). Both Rule 901 and the

common law designate the trial court as the “arbiter of authentication issues,” and,

accordingly, that court’s ruling will not be disturbed absent a showing that the court clearly

abused its discretion. See Tenn. R. Evid. 901, Advisory Comm’n Comments; State v.

Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App. 2003). An abuse of discretion occurs

when the trial court applies an incorrect legal standard or reaches a conclusion that is

“illogical or unreasonable and causes an injustice to the party complaining.” State v. Ruiz,

204 S.W.3d 772, 778 (Tenn. 2006), overruled on other grounds by State v. Patterson, 564

S.W.3d 423, 433 (Tenn. 2018); see State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

Rule 901 provides in pertinent part as follows:

(b) Illustrations. — By way of illustration only, and not by way

of limitation, the following are examples of authentication or

identification conforming with the requirements of this rule:

(1) Testimony of Witness With Knowledge. —

-15-

Testimony that a matter is what it is claimed to be.

....

(4) Distinctive Characteristics and the Like. —

Appearance, contents, substance, internal patterns, or other

distinctive characteristics, taken in conjunction with other

circumstances.

....

(9) Process or System. — Evidence describing a process

or system used to produce a result and showing that the process

or system produces an accurate result.

Tenn. R. Evid. 901. As noted above, these examples of authentication are for “illustration

only.” Tenn. R. Evid. 901(b). “Subsection (b)(4) simply makes common sense. Without

drawing the boundaries of practical possibilities, the rule allows proof to the court of a

myriad of distinctive characteristics that may convince the judge that a questioned

document is authentic enough to let the jury consider it.” Id., Advisory Comm’n

Comments. The Advisory Commission Comments also provide that “[s]ubsection (b)(9)

treats authentication of computer documents. All that the lawyer need do is introduce

evidence satisfying the court that the computer system produces accurate information.” Id.,

Advisory Comm’n Comments.

In our view, the trial court did not abuse its discretion by finding that the

State sufficiently authenticated Mr. Smith’s Cellebrite data extraction report. Officer

Morris’ testimony established that the Cellebrite software produced a report that cannot be

manipulated other than with the insertion of case notes and that the report generated by Mr.

Smith was an accurate report of the data extracted from the defendant’s cellular telephone.

She confirmed that the IMEI on Mr. Smith’s report matched that of the defendant’s

telephone and that Mr. Smith’s report contained the same number of entries as the data

extraction report that she produced from the defendant’s cellular telephone.

B. Ms. Clemons’ Prior Testimony

The defendant asserts that the trial court erred by admitting into evidence Ms.

Clemons’ prior testimony, arguing that its admission violated both Evidence Rule 803(26)

and his right to confrontation because he did not have an opportunity to cross-examine Ms.

Clemons at Mr. Cox’s trial. The State argues that the trial court did not abuse its discretion

in admitting the testimony because the defendant “had the opportunity to cross[-]examine

-16-

Ms. Clemons on her prior testimony during [the defendant’s] trial.”

During a jury-out hearing, the State asked Ms. Clemons whether she

remembered testifying at Mr. Cox’s trial, and she said that she did not. The State then

asked Ms. Clemons whether she recalled being asked the following questions and making

the following statements during her testimony at Mr. Cox’s trial:

Q: What did you see?

A: When I went over there, I seen the black guy. He

was leaned over in the car, where you could see, I guess, you

would say, his -- actually, I’m trying to be nice about it -- his

brains laying out, whatever, from the bullet wound.

....

Q: Did you see anyone get out of the car?

A: Yes. I seen a tall guy. He was in the front. He

was standing in front, and it was a shorter guy that got out of

the back. They both took off running, and they stopped in

midstream. And when they stopped, they sent the short -- the

tall guy sent the short guy to go back to the car and come

around on the driver’s side, reach in, got a duffel bag and a gun.

....

Q: And where did they run to?

A: They ran halfway down the walkway, stopped,

and he sent -- I don’t know if he sent, but the shorter guy came

back, walked around, reached in the -- pull -- I mean, opened

the driver’s side, opened the door, reached in, got a duffel bag

and a gun, a big, silver gun.

....

Q: Okay. And is Mike -- is Mike White Mike?

A: Yeah, he’s a neighborhood safe house.

-17-

....

Q: Do you recognize Exhibit 78?

A: Yes.

Q: And what is Exhibit 78?

A: You’re talking about right here?

Q: Yes, ma’am.

A: This photo is what I identified, right there. That

was --

....

A: . . . . This photo, photo number 3.

....

Q: And the person you identified in Exhibit -- in

photo number 3, where was this person at?

A: That’s the one that was in the front.

Ms. Clemons said that she did not remember making any of the statements and denied that

the transcript refreshed her recollection on the matter.

After Ms. Clemons’ testimony, the State moved to introduce “parts of” Ms.

Clemons’ prior testimony from Mr. Cox’s trial into evidence under Rule 803(26). The

defendant objected to the admission of the portions of Ms. Clemons’ prior testimony

related to her identification of the defendant, arguing that “they weren’t seeking to have

her identify [the defendant] at Mr. Cox’s trial” and that there was no “memorialization or

tape of her purported identification of [the defendant] to the police.” The defendant also

objected to the admission of any of Ms. Clemons’ prior testimony on the ground that the

defendant “did not have counsel [at Mr. Cox’s trial] conducting a cross-examination of this

witness.” The trial court found that Ms. Clemons’ “denial of being able to remember

anything is a prior inconsistent statement, under [Evidence Rule] 613(b)” and that her prior

testimony was admissible for impeachment. The court also found that Ms. Clemons was a

“reluctant witness” at Mr. Cox’s trial but that “her memory was pretty good” and noted

-18-

that her prior trial testimony was consistent with the statement she gave to Detective

Wardlaw. The court concluded that Ms. Clemons’ “prior testimony was [made] under

circumstances indicating that it was trustworthy” and admitted the entirety of her prior trial

testimony as substantive evidence, explaining, “Ms. Clemons couldn’t remember anything.

So everything was inconsistent with what she was saying here today.”

1. Evidence Rule 803(26)

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these

rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide

exceptions to the general rule of inadmissibility of hearsay. Our supreme court has

confirmed that “[t]he standard of review for rulings on hearsay evidence has multiple

layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The “factual and credibility

findings” made by the trial court when considering whether a statement is hearsay, “are

binding on a reviewing court unless the evidence in the record preponderates against them.”

Id. (citing State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). “Once the

trial court has made its factual findings, the next questions—whether the facts prove that

the statement (1) was hearsay and (2) fits under one [of] the exceptions to the hearsay

rule—are questions of law subject to de novo review.” Kendrick, 454 S.W.3d at 479 (citing

State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling,

196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)); see also Gilley, 297 S.W.3d at 760 (stating

that because “[n]o factual issue attends” the trial court’s determination whether a statement

is hearsay, “it necessarily is a question of law”). “If a statement is hearsay, but does not fit

one of the exceptions, it is inadmissible, and the court must exclude the statement. But if

a hearsay statement does fit under one of the exceptions, the trial court may not use the

hearsay rule to suppress the statement.” Kendrick, 454 S.W.3d at 479; see also Gilley, 297

S.W.3d at 760-61.

In addition to the exceptions for admission in Rules 803 and 804, Evidence

Rule 613 provides a potential avenue for the admission of an out-of-court statement. Under

Rule 613, “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not

admissible unless and until the witness is afforded an opportunity to explain or deny the

same.” Tenn. R. Evid. 613(b); see State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998)

(confirming that “extrinsic evidence remains inadmissible until the witness either denies

or equivocates as to having made the prior inconsistent statement”). “Extrinsic evidence

of a prior inconsistent statement remains inadmissible when a witness unequivocally

admits to having made the prior statement” because “[t]he unequivocal admission of a prior

statement renders the extrinsic evidence both cumulative and consistent with a statement

made by the witness during trial.” Martin, 964 S.W.2d at 567. On the other hand, extrinsic

-19-

evidence of a prior inconsistent statement will be admissible when a witness denies making

the statement, equivocates about having made the statement, or testifies that he or she does

not recall making the prior inconsistent statement. Id. (citing State v. Kendricks, 947

S.W.2d 875, 881 (Tenn. Crim. App. 1996)).

Generally, because they contain hearsay, “prior inconsistent statements

offered to impeach a witness are to be considered only on the issue of credibility, and not

as substantive evidence of the truth of the matter asserted in such statements.” State v.

Reece, 637 S.W.2d 858, 861 (Tenn. 1982). Tennessee Rule of Evidence 803(26), however,

provides an exception to the hearsay rule permitting a prior inconsistent statement of a

witness that is “otherwise admissible under Rule 613(b)” to be used as substantive evidence

if the declarant testifies at trial; the statement is recorded, signed by the declarant, or given

under oath; and “made under circumstances indicating trustworthiness.” Tenn. R. Evid.

803(26). The latter finding requires the trial court to “conduct a hearing outside the

presence of the jury to determine by a preponderance of the evidence that the prior

statement was made under circumstances indicating trustworthiness.” Id. The Advisory

Commission Comments to Rule 803(26) provide that “[t]o be considered as substantive

evidence the statement must first meet the traditional conditions of admissibility which

include the procedural aspects of inconsistent statements as addressed in Rule 613.”

Here, Ms. Clemons testified that she did not remember making the specific

statements that the State asked about from Mr. Cox’s trial. Consequently, those portions

of her prior testimony directly contradicting those statements were admissible as

impeachment evidence under Rule 613(b). See Kendricks, 947 S.W.2d at 882 (“[T]his

court has previously ruled that ‘[i]f the witness denies or does not recall making the

statement, then it can be used to impeach the witness’[s] testimony.’ [Evidence Rule] 613

does not change this holding.” (second alteration in Kendricks) (citations omitted)).

Additionally, because Ms. Clemons’ prior statements were given under oath, because she

testified and was subject to cross-examination at the defendant’s trial, and because the trial

court held a jury-out hearing and determined that Ms. Clemons’ prior statements were

made under circumstances indicating trustworthiness, the inconsistent statements were

subject to admission as substantive evidence under the terms of Rule 803(26). The trial

court erred, however, by admitting the entirety of Ms. Clemons’ prior testimony into

evidence instead of redacting the prior testimony to include only the five inconsistent

statements the State asked her about. See State v. Ackerman, 397 S.W.3d 617, 638-39

(Tenn. Crim. App. 2012) (“Nothing in [Evidence Rule 613(b)] permits the admission of a

witness’s prior statement in its entirety. . . . If the victim’s lack of memory was sufficient

to establish inconsistency, then only those portions of the video directly related to a claimed

lack of memory would have been admissible.”), overruled on other grounds by State v.

Sanders, 452 S.W.3d 300 (Tenn. 2014).

-20-

We conclude that the erroneously admitted portions of Ms. Clemons’ prior

testimony were harmless. See State v. Martin, 964 S.W.2d 564, 568 (Tenn. 1998) (A trial

court’s “violation of an evidentiary rule may not mandate reversal if the error ‘was more

probably than not harmless.’” (quoting United States v. Barrett, 703 F.2d 1076, 1081-82

(9th Cir. 1983) and citing Wilson v. State, 724 S.W.2d 766, 769 (Tenn. Crim. App. 1986)).

The only statements in Ms. Clemons’ prior testimony that related to the shooting was that

she “heard a pop,” that the taller man who was standing at the front of the victim’s vehicle

wore a “[h]eaddress,” that the shorter man “got out from the back” passenger’s side of the

victim’s vehicle, that the shorter man “reached over” the victim to retrieve the gun and

duffel bag, that the shorter man gave the bag and gun to the taller man, that the two men

ran in the direction of “where this guy Mike lived at,” and that the person she identified

from the photographic array had “[d]reads.” The remainder of the erroneously-admitted

prior testimony related to her volunteer activities at the Baptist Center, her giving a

statement to police at the scene, and the fact that she did not identify Mr. Cox from a

photographic array. None of these statements further implicated the defendant in the

shooting, and the exclusion of these inadmissible statements would not likely have changed

the jury’s verdict.

2. Confrontation Clause

The defendant also asserts that the admission of Ms. Clemons’ prior

testimony violated his right to confrontation because he did not have an opportunity to

cross-examine Ms. Clemons at Mr. Cox’s trial.

The Sixth Amendment to the federal constitution and article I, section 9 of

the Tennessee Constitution afford the criminal accused the right to confront the witnesses

against him. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although the provisions

are not coterminous, our supreme court has “expressly adopted and applied the same

analysis used to evaluate claims based on the Confrontation Clause of the Sixth

Amendment.” State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014) (citing State v. Parker, 350

S.W.3d 883, 898 (Tenn. 2011); State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn. 2010);

State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); State v. Lewis, 235 S.W.3d 136, 145

(Tenn. 2007)). In Crawford v. Washington, the United States Supreme Court departed

from decades-long precedent and held for the first time that “[w]here testimonial evidence

is at issue . . . the Sixth Amendment demands . . . unavailability and a prior opportunity for

cross-examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004). “Where

nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford

the States flexibility in their development of hearsay law.” Id. Because the Confrontation

Clause does not bar nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813, 823-

24 (2006); Whorton v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every

case where the Confrontation Clause is relied upon as a bar to the admission of an out-of-

-21-

court statement is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d

at 63 (citing Cannon, 254 S.W.3d at 301).

The Crawford court identified, for illustrative purposes, a “core class of

‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that

is, material such as affidavits, custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially”; “extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony, or

confessions”; and “statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use at a

later trial.” Crawford, 541 U.S. at 51-52 (alteration in original) (citations omitted).

Similarly, the court observed that some “statements . . . by their nature were not

testimonial,” including, among other things, “business records.” Id.; Dotson, 450 S.W.3d

at 64. The Supreme Court has also recognized that “medical reports created for treatment

purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,

312 n.2 (2009); see also Cannon, 254 S.W.3d at 303 (statements in medical records given

for the primary purpose of medical diagnosis and treatment are nontestimonial). Thus,

statements that are properly categorized as business records or medical records are

nontestimonial, and the Confrontation Clause has no application to their admission into

evidence. Cannon, 254 S.W.3d at 303.

For those statements that are not easily classified as nontestimonial, our

supreme court has concluded that “a statement is testimonial at least when it passes the

basic evidentiary purpose test plus either the . . . targeted accusation requirement” adopted

by the plurality of the Supreme Court in Williams v. Illinois, 567 U.S. 50 (2012), or the

“formality criterion” espoused by Justice Thomas in his concurring opinion in Williams,

stating that “[o]therwise put, . . . an out-of-court statement is testimonial . . . if its primary

purpose is evidentiary and it is either a targeted accusation or sufficiently formal in

character.” Dotson, 450 S.W.3d at 69 (quoting Young v. United States, 63 A.3d 1033,

1043-44 (D.C. 2013)).

Here, Ms. Clemons’ prior statements are undoubtedly testimonial. See

Crawford, 541 U.S. at 68 (“Whatever else the term [testimonial] covers, it applies at a

minimum to prior testimony . . . at a former trial . . . .”). Ms. Clemons, however, was not

an unavailable witness; she testified at the defendant’s trial and was subject to cross-

examination. Consequently, the admission of her prior testimony did not violate the

defendant’s right to confrontation. See Ackerman, 397 S.W.3d at 640 (“Crawford has no

application in this case because the declarant . . . was present, testified at trial, and was

subject to cross-examination. Crawford and its progeny are limited to those situations

when the State offers into . . . evidence the out-of-court statement of a non-testifying

-22-

declarant.” (citing Crawford, 541 U.S. at 59)). Moreover, Ms. Clemons’ “nearly complete

lack of memory” at the defendant’s trial did not render her an unavailable witness for the

purposes of the Confrontation Clause. See id. at 641 (“Although a witness’[s] lack of

memory may render her ‘unavailable’ for purposes of our rules of evidence, a lack of

memory does not render a witness unavailable for purposes of the confrontation clause.”

(citations omitted)). Consequently, the admission of Ms. Clemons’ prior testimony did not

violate the defendant’s right to confrontation.

II. Confrontation of Remote Witness

At the beginning of the trial, the State presented a letter from The University

of Tennessee Medical Center, certifying that Ms. Clemons was seen as a patient at the

emergency room on October 9, 2020, and had been instructed to quarantine for 14 days,

until October 22, 2020, “[d]ue to a [sic] positive covid-19 results.” The State informed the

court that Ms. Clemons was a necessary witness. The State also told the court that because

Ms. Clemons indicated that she was reluctant to come to court to testify, the State arranged

to have her arrested for an outstanding warrant to ensure her availability, at which time the

State became aware of and received the letter regarding her positive COVID-19 test results.

The State asked the trial court to permit Ms. Clemons to testify remotely because of her

COVID-19 diagnosis. The defendant’s counsel responded, “I would want to see . . . what

remote facility she would have to make sure that we could see it and then all the jury could

see it.” The trial court explained that Ms. Clemons would testify from the jail and said,

“I’m pretty confident in the jail’s video system being clear to understand and see.” The

court noted, “we’ll get the video set up before we have the jury see that and make sure it’s

working for all of us.” The defendant did not object on Confrontation Clause grounds or

otherwise.

When Ms. Clemons began her virtual testimony, the trial court confirmed

that she could hear the proceedings. At the start of her testimony, the transcript indicates

that several of Ms. Clemons’ responses were unintelligible due to “audio difficulties.” The

court interrupted the direct examination and told Ms. Clemons that she was “breaking up

on me a little bit” and asked her to “get a little bit closer to the microphone” and to speak

“a little louder.” During a jury-out hearing, the transcript again indicates technical

difficulties in getting an audio recording to play where Ms. Clemons could hear it, but after

several attempts, Ms. Clemons indicated that she heard the audio. The transcript indicates

“[a]udio difficulties” in three more of Ms. Clemons’ responses during the jury-out hearing.

At the beginning of cross-examination before the jury, Ms. Clemons responded to

defendant’s counsel by saying, “I can’t hardly hear you,” and “I’m still not understanding

you.” During the remainder of Ms. Clemons’ testimony, she responded to questions

without indicating further difficulty hearing. Despite the technical difficulties, the

defendant did not object to Ms. Clemons’ remote testimony at any point.

-23-

Because the defendant failed to object at trial to Ms. Clemons’ testifying

remotely, he has waived the issue, see Tenn. R. App. P. 36(a); State v. Morton, No. E2019-

01755-CCA-R3-CD, 2022 WL 2301439, at *21 (Tenn. Crim. App., Knoxville, June 27,

2022); see also Melendez-Diaz v. Massachusetts, 577 U.S. 305, 313 n. 3 (2009) (“The right

to confrontation may, of course, be waived, including by failure to object to the offending

evidence . . . .”), and consequently, is limited to plain error review, see State v. Vance, 596

S.W.3d 229, 253-54 (Tenn. 2020) (defendant limited to plain error review when he raised

confrontation issue for the first time in the motion for new trial); see also Tenn. R. Crim.

P. 36(b). An error may be recognized as plain only when all five of the following factors

has been established:

(a) the record must clearly establish what occurred in the trial

court;

(b) a clear and unequivocal rule of law must have been

breached;

(c) a substantial right of the accused must have been adversely

affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial

justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)).

Here, the defendant is not entitled to plain error relief because it is not evident

that “a clear and unequivocal rule of law . . . ha[s] been breached.” See Smith, 24 S.W.3d

at 282. The United States Supreme Court has made clear that, in certain circumstances,

“the Confrontation Clause does not prohibit use of a procedure that, despite the absence of

face-to-face confrontation, ensures the reliability of the evidence by subjecting it to

rigorous adversarial testing and thereby preserves the essence of effective confrontation,”

Maryland v. Craig, 497 U.S. 836 (1990), and this court has previously applied the standard

set forth in Craig to the use of “two-way teleconferencing technology” and determined that

it may be used in some circumstances without violating a defendant’s right to

confrontation, State v. Seale, No. M2019-01913-CCA-R9-CD, 2020 WL 4045227, at *8

(Tenn. Crim. App., Nashville, July 20, 2020).

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Conclusion

Accordingly, the judgments of the trial court are affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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