Petition for Writ of Certiorari — Tennessee v. Pilkey

a ') , Supreme Court, U.S |

89-773. \Rriuep

No. ) NW 10 ue

—JOREPH_E. SPANIOL, JR:

CLERK

In The

Supreme Court of the United States

October Term, 1989

-.

—

wo TATE OF TENNESSEE,

q Petitioner,

VS.

SAM PILKEY,

Respondent.

,’

. 4

On Petition For A Writ Of Certiorari To The

Supreme Court Of Tennessee

4

PETITION FOR WRIT OF CERTIORARI

a

as

CHARLES W. BuRSON

Attorney General & Reporter

State of Tennessee

JoHN Knox WaLkup

Solicitor General

Jerry L. SmitH

Deputy Attorney General

(Counsel of Record)

C. ANTHONY DAUGHTRE)

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-6249

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Did the use at trial of an ex parte videotaped state-

ment from a child sex abuse victim, who was available at

trial for cross-examination by the defendant, violate the

defendant’s right to confront witnesses against him under

the Sixth Amendment to the Constitution of the United

States?

ii

TABLE OF CONTENTS

Page

Question Presented for Review ...........0.000 0055 i

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OR PT ee ee |

POTION. «6 ve o5s00cseseddenneeeeee 2

Constitutional and Statutory Provisions Involved... 2

statement Of the Cage... viascuvsstasaentekamabanes 4

Reasons for Granting the Writ..................05. 5

Commciastom oc... 6.55 chee dak eee e een 11

Appendix:

A - Opinion of the Supreme Court of Tennes-

ip PEE App. 1

B - Order Denying Petition for Rehearing. . App. 27

- T

iii

TABLE OF AUTHORITIES

Page

Cases Citep:

Bruton v. United States, 391 U.S. 123 (1968)........... 9

California v. Green, 399 U.S. 149, 160-61 (1970)........ 8

Coy v. lowa, 487 U.S. __, 108 S.Ct. 2798, 101

ns ccc h pace cadenee6teecesens 5, 10

Delaware v. Prouse, 440 U.S. 648, 653 (1979)........... 6

Harrington v. California, 395 U.S. 250 (1969)........... 8

Mattox v. United States, 156 U.S. 237, 242-243

Cee LU ied dCin ae cbens 0adneese esses 8

Michigan v. Long, 463 U.S. 1032 (1983).............65. 6

Nelson v. O'Neil, 402 U.S. 622 (1971) ................. S)

Ohio v. Roberts, 448 U.S. 56, 63 (1980)............. 8, 10

Pennsylvania v. Ritchie, 480 U.S. 39 (1988)............. 8

State v. Hughes, 713 S.W.2d 58 (Tenn. 1986)........... 6

Orner AutHorities Crtep:

Tenn. Code Ann. §24-7-116..............5. 2, 6, 7, 9, 10

No.

,%

A

In The

Supreme Court of the United States

October Term, 1989

sa

vv

STATE OF TENNESSEE,

Petitioner,

SAM PILKEY,

Respondent.

,

—

On Petition For A Writ Of Certiorari To The

Supreme Court Of Tennessee

Lp

wf

PETITION FOR WRIT OF CERTIORARI

i.

.

OPINIONS BELOW

The opinion of the Supreme Court of Tennessee was

filed on August 7, 1989, and appears as Appendix A.

The order of the Supreme Court of Tennessee deny-

ing the respondent's petition for rehearing was filed on

September 11, 1989, and appears as Appendix B.

_ =

>

JURISDICTION

The judgment of the Supreme Court of Tennessee

was entered on August 7, 1989. The respondent filed a

petition for rehearing which was denied by the Supreme

Court of Tennessee on September 11, 1989. This petition

was filed within sixty (60) days of that date.

This Court's jurisdiction is invoked under 28 U.S.C.

§1257(a).

-.

—_"

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the

witnesses against him; . .

Tenn. Code Ann. §24-7-116 (1985) provides in pertinent

part:

(a) This section shall apply to proceedings in

the prosecution of offenses defined in §37-1-602

as “child sexual abuse” .. . and it shall apply

only to the statements of a child or children

under the age of thirteen (13) who are victims of

such abuse.

(b)

(c\1) The recording of the statements of the

child made pursuant to an investigation of child

sexual abuse is admissible into evidence if:

(A) No attorney for a party to the proceed-

ing was present when the statement was

made;

———SSaa_aaaaa

(B) The recording is both visual and oral

and is recorded on film or video-tape or by

other similar audio-visual means;

(C) The recording equipment was capable

of making an accurate recording, the opera-

tor of the equipment was competent, and

the recording is accurate and has not been

altered;

(D) The statement was not made in

response to questioning calculated unduly

to lead the child to make a particular

statement;

(E) Every voice on the recording is

identified;

(F) The person conducting the interview of

the child in the recording is present at the

proceeding and available to testify;

(G) The defendant or the attorney for the

defendant is afforded a reasonable oppor-

tunity to listen and view the statement

before it is offered into evidence;

(H) The court finds, in a hearing con-

ducted outside the presence of the jury, that

the time, content and circumstances of the

case provided sufficient indicia of

reliability; and,

(I)(i) With respect to criminal prosecutions

in which the testimony of the child is taken

under subsections (d) or (e) and is shown at

the trial, the statement is ruled to be admis-

sible by the court prior to such taking of

testimony, and the party against whom the

statement is offered is allowed to cross-

examine the child during the recording of

testimony; or

(ii) With respect to criminal prosecutions

in which the testimony of the child is not

taken under subsections (d) or (e), or if so

taken, is not shown at the triai, or the child

is nonetheless ordered to testify in court

under subsection (e), either party is allowed

to call the child as a witness and the oppo-

sing party is allowed to cross-examine the

child.

-.

~ 4

STATEMENT OF THE CASE

Sam Pilkey was convicted, after jury trial, of aggra-

vated rape and sentenced to twenty-five (25) years

imprisonment. Mr. Pilkey was found guilty of aggravated

rape for the anal penetration of his nephew, who was five

(S) years of age at the time of the offense.

A three-judge panel of the Court of Criminal Appeals

of Tennessee unanimously affirmed the conviction and

sentence.

The Tennessee Supreme Court granted Mr. Pilkey’s

application for permission to appeal. That court subse-

quently held that Mr. Pilkey’s right to be confronted with

the witnesses against him was violated by the use at trial

of the ex parte videotaped statement taken from his

nephew even though the child was available in court for

cross-examination. The Supreme Court of Tennessee

affirmed the conviction, however, upon finding that the

admission of this evidence, although error, was harmless

beyond a reasonable doubt. See, for full opinion, Appen-

dix A. Mr. Pilkey filed a petition for rehearing which was

denied. See, for full order, Appendix B

».

vr

REASONS FOR GRANTING THE WRIT

THE SUPREME COURT OF TENNESSEE ERRO-

NEOUSLY HELD THAT THE USE OF AN EX PARTE

STATEMENT OF A WITNESS WHO WAS AVAILABLE

FOR CROSS-EXAMINATION VIOLATED THE CON-

FRONTATION CLAUSE.

The Supreme Court of Tennessee has decided an

important question of federal law which has not been, but

should be, settled by this Court. The Supreme Court of

Tennessee has promulgated an unwarranted expansion of

the ruling of this Court in Coy v. lowa, 487 U.s.__, 108

S.Ct. 2798, 101 L.Ed.2d 857 (1988). The State of Tennessee

submits that this case presents an important question of

federal constitutional law and that the Sixth Amend-

ment’s right to confrontation is adequately protected by

making the child victim of sexual abuse available for

cross-examination at trial.

A. This case presents an important question of

federal constitutional law.

Although the Supreme Court of Tennessee held that

the procedure used in the instant case violated the con-

frontation provisions of both the federal and state consti-

tutions, see Appendix A, p. 2, the analysis relied upon by

that court establishes that the opinion did not rest upon

the state constitution as an adequate and independent

state ground. Since the state court decision rests primar-

ily upon federal law, or is interwoven with the federal

law, and the adequacy and independence of any possible

state law ground is not clear from the face of the opinion,

this Court should conclude that the state court believed

that federal law required it to decide the case as it did.

eae

Michigan v. Long, 463 U.S. 1032 (1983). The Supreme Court

of Tennessee concluded in this case that the Constitution

of ‘lennessee was violated because the federal constitu-

tion was violated. See Appendix A, p. 19. For this reason,

the state court avoided the question of whether the Con-

stitution of Tennessee provides greater protection of the

right to confrontation than the federal constitution. See

Appendix A, p. 19, at fn. 4. Since the state court believed

that federal law compelled the decision in this case, there

is no adequate and independent state ground.

The State of Tennessee further notes that the decision

in this case rests, in part, upon the state court’s construc-

tion of Tenn. Code Ann. §24-7-116. When the state court

feels that its construction of its own law is compelled by

its interpretation of federal constitutional law, this Court

will not treat a normally adequate state ground as inde-

pendent. Long, supra, 463 U.S. at 1039, fn. 4; Delaware v.

Prouse, 440 U.S. 648, 653 (1979).

The trial court and the Court of Criminal Appeals of

Tennessee construed Tenn. Code Ann. §24-7-116 as

authorizing the defendant to call the child at trial for

purposes of cross-examination. The State of Tennessee

urged the Supreme Court of Tennessee to adopt this

saving construction, relying upon State v. Hughes, 713

S.W.2d 58 (Tenn. 1986).! The Supreme Court of Tennessee

1 In Hughes, the court considered the constitutionality of a

statute which permitted the admission of the certificate of a

laboratory technician to prove the alcohol content of the defen-

dant’s blood. The court noted that the statute, as written,

violated the Constitution of Tennessee, but saved this legisla-

tion by adding the requirement that the laboratory technician

(Continued on following page)

refused to adopt this saving construction, holding that

“serious confrontational issues” would remain. See

Appendix A, pp. 13-14, at fn. 2. Since this normally

adequate state ground was not independent of the state

court’s construction of federal constitutional law, this

Court has jurisdiction to decide this case.

B. The availability of in-court cross-examination

satisfies the Sixth Amendment's right of confrontation.

The trial court conducted a hearing and determined

that the videotaped statement of the five-year-old victim

met the technical requirements of Tenn. Code Ann.

§24-7-116. At trial, the State was allowed to play this

videotaped statement for the jury. The State noted on the

record that the child was available for cross-examination

if the respondent so desired. Neither the statute nor the

procedure adopted by the trial court required the respon-

dent to make his demand for cross-examination in the

presence of the jury. As tried, this case presents the

question of whether the opportunity for cross-examina-

tion at trial of the declarant in an ex parte videotaped

statement permits the admission of that statement under

the confrontation clause.

(Continued from previous page)

could be subpoenaed at state expense by the accused, called to

the witness stand and cross-examined as a hostile witness. 713

S.W.2d at 61-62. The accused waives his right of confrontation

if the technician is not subpoenaed or called to the witness

stand by either party. Id. at 62.

The primary purpose of the confrontation clause is to

allow the accused an opportunity to cross-examine wit-

nesses against him, so as to allow for the “sifting of the

conscience” of the witness and so as to compel the wit-

ness to “stand face-to-face” with the jury in order that

they may look at him, and judge by his demeanor

whether his testimony is worthy of belief. Mattox v.

United States, 156 U.S. 237, 242-243 (1895). The Sixth

Amendment does not guarantee that the accused be

allowed to present evidence in a manner which he might

find to be the most optimal to his case, but merely that he

be provided the opportunity to confront and cross-exam-

ine witnesses. Pennsylvania v. Ritchie, 480 U.S. 39 (1988).

~ This Court has previously held that the confrontation

clause does not necessarily require that contemporaneous

cross-examination occur before the ultimate trier of fact.

California v. Green, 399 U.S. 149, 160-61 (1970). In cases of

necessity, the states may adopt rules of evidence for

criminal proceedings which altogether dispense with con-

frontation at trial. Id. at 162; Ohio v. Roberts, 448 U.S. 56,

64 (1980). The State of Tennessee submits that its strong

public policy of protecting child sexual abuse victims

from exposure to the atmosphere of the courtroom war-

rants adoption of a procedure which protects children

from testifying in court except when necessary to pre-

serve the defendant’s right of confrontation.

None of this Court’s decisions require excluding the

out-of-court statements of a witness who is available and

testifying at trial. Green, supra, 399 U.S. at 161. The cross-

examination at trial of the declarant of an out-of-court

statement satisfies the confrontation requirement of the

Sixth Amendment. In Harrington v. California 395 U.S. 250

(1969), the petitioner was implicated by the confessions of

his three co-defendants.?2 The co-defendant Rhone testi-

fied in his own defense and was subject to cross-examina-

tion by the petitioner’s counsel. This Court held that the

introduction of the confessions by the other two co-defen-

dants violated the rule in Bruton v. United States, 391 US.

123 (1968), but found no error from the admission of

Rhone’s confession.

In Nelson v. O'Neil, 402 U.S. 622 (1971), the trial court

admitted the out-of-court confession of the respondent's

co-defendant, who subsequently testified in his own

defense. The Court noted that this out-of-court confession

was inadmissible hearsay under state evidentiary law,°

but found no violation of the confrontation clause. 402

U.S. at 626. This Court held that “the absence of the

defendant at the time the co-defendant allegedly made

the out-of-court statement is immaterial, so long as the

declarant can be cross-examined on the witness stand at

trial.” 402 U.S. at 626. Although the absence of cautionary

instructions regarding a co-defendant’s statement could

be reversible error under state law, the Sixth Amendment

requires only that the declarant be available at trial for

full and effective cross-examination. Id. at 627.

2 All three confessions were introduced at trial with

instructions limiting the jury to consider each confession only

against the confessor.

3 In contrast, the Supreme Court of Tennessee held that

Tenn. Code Ann. §24-7-116 was a legislatively created excep-

tion to the hearsay rule which violated the constitutional right

of confrontation. Appendix A, p. 20, at fn. 5.

10

The Supreme Court of Tennessee held “that if the

statutory procedures involved in Coy did not meet federal

constitutional guarantees, then those in the present case

likewise do not.” See Appendix A, p. 15. In Coy, this

Court held that the right of confrontation was violated by

the use of a screen during in-court testimony which pre-

vented the testifying victim from observing the defen-

dant. Under the statute which. was stricken in Coy, the

accused was never allowed an opportunity for direct

confrontation of the child witness. In contrast, the pro-

cedure used in the trial court in this case would have

required the child to face the accused in open court but

for his decision to forego cross-examination.

This Court has refused to indulge in a literal reading

of the Sixth Amendment which would exclude any state-

ment made by a declarant not present at trial and “abro-

gate virtually every hearsay exception, a result long

rejected as unintended and too extreme.” Roberts, supra,

448 U.S. at 63. The Court noted that the state interest in

effective law enforcement and the development and pre-

cise formulation of the rules of evidence in criminal pro-

ceedings may, if closely examined, warrant dispensing

with confrontation at trial. 448 U.S. at 64.

The procedure advocated by the State of Tennessee in

the instant case does not go this far. The State of Tennes-

see does not suggest that the procedure authorized by

Tenn. Code Ann. §24-7-116 be construed in such a manner

as to allow admission of the videotaped evidence without

any opportunity for cross-examination. The State submits

only that the guarantees of the Sixth Amendment are

satisfied when the accused is given an opportunity at trial

to cross-examine the child declarant. Since the decision of

11

the court below is an unwarranted expansion of this

Court’s previous opinions on the right to confrontation,

this petition should be granted and the judgment below

should be reversed.

4.

4

CONCLUSION

For the reasons stated, the petitioner urges this Court

to grant the writ of certiorari.

Respectfully submitted,

A CHARLES W. Burson

Attorney General & Reporter

JoHN Knox WaALkup

Solicitor General

Jerry LYNN SMITH

Deputy Attorney General

C. ANTHONY DAUGHTREY

Assistant Attorney General

Counsel for Petitioner.

App. 1

APPENDIX A

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE,

Appellee

VS.

SAM PILKEY,

Appellant

For Appellee:

Charles Burson

Attorney General

& Reporter

Nashville, Tennessee

Kathy M. Principe

Assistant Attorney General

Nashville, Tennessee

C. Anthony Daughtrey

Assistant Attorney General

Nashville, Tennessee

For Publication

150

Honorable R. Steve Bebb

)

)

) McMinn Criminal No.

)

)

‘ Judge

For Appellant:

Glenna M. Ramer

Attorney-at-Law

Chattanooga, Tennessee

For Amicus Curiae:

William C. Talman

Tennessee Association of

Criminal Defense Lawyers

Knoxville, Tennessee

Paul J. Morrow, Jr.

Tennessee Association of

Criminal Defense Lawyers

Amicus Committee

Nashville, Tennessee

OPINION

MODIFIED AND AFFIRMED

WILLIAM J. HARBISON, J.

Opinion filed August 7, 1989

This case involves aspects of comprehensive state

statutes dealing with child abuse and sexual molestation.

The primary issue concerns the state’s use at trial as

substantive evidence an ex parte videotaped statement

App. 2

taken from a victim of alleged sexual abuse under thir-

teen years of age. We are of the opinion that the use of

such ex parte unsworn statements in the manner permit-

ted in the trial of the present case violates the right of a

criminal defendant to confront the witnesses against him

or her, under the provisions of both the federal and state

constitutions.

The evidence against the accused in the present case,

however, wholly apart from the videotaped statement of

the child witness, was so strong and convincing that, in

our opinion, the use of the questioned testimony did not

affect the result. In our opinion the admission of this

evidence, although error, was harmless beyond a reason-

able doubt. T.R.A.P. 36(b); Chapman v. California, 386 U.S.

18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Accor-

dingly the conviction of the accused for aggravated rape

and the sentence imposed are affirmed, even though our

interpretation of the statutory provisions differs from that

made by the trial judge and the Court of Criminal

Appeals.

A. The Facts

Appellant was twenty-one years of age at the time of

the trial of this case in September 1986. He was about

twenty years of age at the time of the offense for which

he was indicted, the allegations of the indictment char-

ging that the offense occurred between January and Sep-

tember 1985.

Appellant had no criminal record as an adult. There

was evidence that he was a slow learner and had been

placed in special educational classes during his boyhood.

App. 3

He had been tested on several occasions at mental health

facilities and was found to be near or slightly below

average in intelligence. There is evidence that he had

exhibited homosexual tendencies, including posing as a

transvest‘te. At the time of the alleged offense he was

living at home with his parents and was employed as a

caretaker at a cemetery where his father also worked. His

father died prior to the trial of the case.

Appellant was the uncle of the alleged victim, who

was about five years old at the time the offense allegedly

occurred. The child’s father was the brother of appellant,

but was divorced from the mother of the child. The child

apparently visited in his grandmother’s home, where

appellant resided, and there is evidence from which a

trier of fact could conclude beyond a reasonable daubt

that appellant sexually abused the boy on more than one

occasion.

Indeed, after the present charges were brought,

appellant signed a detailed confession in which he admit-

ted to two separate sexual offenses against the child.

There is no issue on appeal concerning the admissibility

of this confession. If accepted by the jury, as it apparently

was, the confession itself, which is amply corroborated by

other evidence in the record, afforded a sufficient basis

upon which the conviction could be sustained. Appellant

attempted to repudiate the confession at trial, but his

explanation that he thought the document involved some

other transaction and his testimony that the police offi-

cers mistreated or abused him could certainly have been

treated as very unconvincing by a trial jury. The case

appears to be one of genuine child abuse falling within

App. 4

the statutory definition of aggravated rape. T.C.A.

§39-2-603(a)(4).

There is no question on appeal as to the sufficiency of

the evidence. The offense occurred at the home where

appellant and the grandmother of the child lived, while

the child was visiting there. After the return of the child

from a weekend visit at his grandmother’s home in Octo-

ber 1985, the victim’s mother noticed some symptoms

which alarmed her and caused her to question the child.

After receiving information from him, she called the mat-

ter to the attention of personnel in the Department of

Human Services as well as to other family members. The

present charges resulted from the subsequent investiga-

tion by state and local authorities.

Ms. Sandy Pratt, a child protective services worker

with the Department of Human Services, interviewed the

victim’s mother on October 21, 1985. She then took the

child with her to a conference room where she video-

taped an interview with the child. Only she and a detec-

tive from the sheriff's department were present, in

addition to the operator of the video equipment. That

tape, however, was distorted as a result of fluorescent

lighting in the room. Following further investigation into

the offense, Ms. Pratt had a second videotaped interview

with the child on November 21, 1985. It was this inter-

view which was later exhibited to the jury at the trial.

There were no serious discrepancies in the statements of

the child in the two interviews, although the second did

touch upon a few subjects not mentioned in the first

interview. The picture and sound quality of the second

interview are much clearer than those in the first.

App. 5

The child was not called as a witness at trial by either

party. The second videotaped interview was played

before the jury on a television monitor. Ms. Pratt, the

interviewer, was present at trial and did testify as a

witness.

In a written pre-trial motion, counsel for appellant

sought to suppress the videotape. That motion, however,

has not been included in the record on appeal. There was

some discussion of that motion and other pre-trial

motions on the morning when the trial began, and a

hearing regarding the taped interview was held out of the

presence of the jury. The colloquy between the trial judge

and counsel which occurred on the morning of the trial

indicates that there was no objection made on behalf of

appellant with respect to the technical statutory require-

ments concerning videotaped statements, such as the

qualifications of the operator, leading of the witness, pre-

trial availability of the tape to counsel and the like. See

T.C.A. §24-7-116(c)(1)(A) through (H).

As far as can be gleaned from the colloquy between

the trial judge and counsel, the primary objection made

by appellant to the use of the videotape was based upon

counsel’s interpretation of certain statutory provisions

regarding videotaped statements, which will be discussed

later. The statutes under which the evidence was admit-

ted may have become effective after the alleged date of

the offense, and part of the objection made by counsel for

appellant was that the statutes could not be deemed to be

“retroactive.” The trial, however, occurred well after the

effective date of the statutes and we find no merit to the

suggestion by appellant that the statutes were applied in

such a way as to constitute ex post facto laws in any

App. 6

constitutional sense. Davis v. Beeler, 185 Tenn. 638, 207

S.W.2d 343, 349 (1947); Miller v. State, 584 S.W.2d 758, 761

(Tenn. 1979).

The constitutional issue of violation of the right of

confrontation was sufficiently raised in the pre-trial collo-

quy, however, and was sufficiently preserved in the

motion for a new trial that it was not deemed waived by

the Court of Criminal Appeals. As previously stated, it is

one of the principal issues urged here, and, although the

case presents far from an ideal vehicle, we have deemed

the issue sufficiently raised to warrant coysideration. The

issue is a recurring one, and it is of great importance to

trial judges, prosecutors and defense counsel.

B. The Applicable Statutes

In 1985 Tennessee Public Acts chapter 478 the Gen-

eral Assembly enacted a lengthy statute dealing with the

detection and prosecution of offenses involving the

molestation and abuse of children. The statute has been

codified in a number of different titles. Those most perti-

nent to the present case are codified in titles thirty-seven

and twenty-four.

The Court of Criminal Appeals correctly noted:

The Child Sexual Abuse Act was enacted by the

legislature because of the tremendous impact on

victimized children, their siblings, family struc-

ture and the citizens of the State due to

increased incidents of child sexual abuse. The

purpose of the Act is to protect children whose

physical or mental health and welfare are adver-

sely affected by sexual abuse with the intent

App. 7

that a comprehensive approach for the detec-

tion, intervention, prevention and treatment of

child sexual abuse be developed for the State.

The statute requires personnel in many different

agencies, medical, legal and social, to report incidents of

suspected child abuse, and it reflects an intent to create a

massive program for the prevention or alleviation of a

problem which the General Assembly, like legislatures of

most of the American states, has found to be most serious

and pressing. This Court recognizes the importance of the

problem and of the State’s legitimate interest in attempt-

ing to deal with it. Nothing in this opinion should be

construed to the contrary, and our only concern is to seek

to ascertain the legislative intent and then to determine

whether or to what extent there may be an impermissible

infringement upon the constitutional rights of persons

accused of criminal offenses.

The statute provides for the use of many different

agencies or instrumentalities in the investigation of

alleged instances of child abuse. Ex parte videotaping of

an interview with a child victim is expressly authorized

by portions of the statute, now codified as T.C.A.

§37-1-405(b)(2) T:C.A. §37-1-406(g) and T.C.A.

§37-1-609(c). These tapes are to be made available to

investigative agencies for various purposes, and their use

as substantive evidence at the trial is only a secondary

purpose. T.C.A. §37-1-405(b)(2), states in part:

Whenever there are multiple investigations, the

department, the district attorney, law enforce-

ment, and where applicable, the child protection

team shall coordinate their investigations to the

maximum extent possible so that interviews

with the victimized child shall be kept to an

App. 8

absolute minimum. Reference to the audio or

videotape or tapes made by the child protection

team or department should be utilized when-

ever possible to avoid additional questioning of

the child.

In T.C.A. §37-1-609 there are provisions for the taking

of photographs and the examining of child victims. Sub-

section (c) of that provision authorizes videotape record-

ings “when a justifiable suspicion of sexual abuse exists.”

The statute provides in part:

The video recording shall be taken for the pur-

pose of indicating the child’s physical or mental

condition at the time the report is investigated

and shall be made available for future reference

and for utilization as provided in Acts 1985, ch.

478.

It is important to note at this point that these ex parte

videotape interviews were obviously not designed to take

the place of depositions in criminal cases as authorized

by Rule 15, T.R.Crim.P.! Like any other pre-trial state-

ments taken from witnesses, such recordings may have

many incidental uses at trial, such as for purposes of

impeachment, contradiction, demonstration of bias, fear

or prejudice. In and of themselves, however, they are not

' Rule 15(a), T.R.Crim.P. provides:

Whenever due to exceptional circumstances of the

case it is in the interest of justice that the testimony

of a prospective witness of a party be taken and

preserved for use at trial, the court may upon motion

of such party and notice to the parties order that

testimony of such witness be taken by deposition

and that any designated book paper, document,

record, recording, or other material not privileged,

be produced at the same time and place. .

App. 9

primarily designed to be evidence in chief or to take the

place of sworn testimony in formal criminal trials.

Nevertheless, a portion of the 1985 statute, now cod-

ified as T.C.A. §24-7-116, does deal with audio-visually

recorded testimony in civil and criminal cases. Subsection

(b) of that code section provides that such videotaped

statements shall be admissible at any preliminary hearing

when relevant, provided the court finds sufficient indicia

of reliability and further provided that the conditions

under which the recording was made meet the require-

ments of subsection (c). The present case, of course, does

not involve a preliminary hearing, so that the provisions

of subsection (b) are not involved here.

Also not involved in the present case are the provi-

sions of subsections (d), (e) and (f). Under the terms of

(d), the trial court may order the testimony of a child

taken outside the courtroom and its recording for show-

ing in the courtroom before the court and jury. There was

no such order in the present case, and there is nothing in

the present record to indicate that the trial judge made

any particularized finding that the child victim was

unable to attend trial or that his attendance at trial would

be traumatic or stressful. The provisions of subsection (d)

do not differ greatly from the provisions of Rule 15,

T.R.Crim.P., authorizing either the State or the defendant

in a criminal case to take depositions under court order

and for good cause shown. Under the statute or under the

procedural rule the accused and his attorney are entitled

to be present. There is no suggestion of screening of the

witness or any other limitations upon the confrontational

right of the accused in either the statute or the rule, and

this Court has previously held that the Rules of Criminal

eneenre App. 10

Procedure authorize the State, as well as the accused, to

take depositions for use in evidence at trial under appro-

priate circumstances. See State v. Simon, 635 S.W.2d 498

(Tenn.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74

L.Ed.2d 621 (1982).

Subsection (e) of the statute in question permits the

trial court to order the further taking of testimony of a

child outside the courtroom for recording and showing

before the court and jury if circumstances permit, and

subsection (f) provides that the child should not be

required to testify in court if the provisions of (d) or (e)

have been invoked, unless the court so orders.

As previously stated, none of those subsections have

been invoked and none are involved in this case. The ex

parte, unsworn statement of the child was sought to be

introduced by the State under the provisions of subsec-

tion (c), T.C.A. §24-7-116.

The provisions of that subsection purport to make

recorded statements of the child admissible in evidence

under a number of stated circumstances listed (A)

through (I). There seems to be no question but that the

videotape in the present case comported with provisions

(A) through (H), and it is not necessary here to reproduce

those provisions. In summary they require that at a vid-

eotape recording no attorney be present, the recording be

both visual and oral, proper equipment be used and a

competent operator employed and that the recording be

accurate and unaltered. They also require that the state-

ment not be made in response to calculated leading ques-

tions, that every voice on the recording be identified, that

the person conducting the interview of the child in the

App. 11

recording be present and available to testify at trial and

that the accused or his or her attorney be afforded a

reasonable opportunity to listen to and view the state-

ment before it is offered into evidence. Further, subdivi-

sion (H) requires that the trial judge hold a hearing

outside the presence of the jury and affirmatively find

that the time, content, and circumstances of the case

provided sufficient indicia of reliability. That was done in

this case.

As stated, all of those requirements appear to have

been met in the present case, or, at least, no issue has

been made concerning them on this appeal. Subdivision

(I)(i) of subsection (c) then provides for the use of these

videotapes when the testimony of the child is taken

under court order under subsections (d) or (e) as previ-

ously described. The court, however, must determine

prior to the taking of such testimony that the tape is

admissible and order that the accused be permitted to

cross-examine the child during the recording of testi-

mony. The provisions of this subdivision are not involved

in the present case.

Subdivision (I)(ii) is the portion of the statute under

which the State sought to have the videotaped recording

introduced in the present case. Its language is difficult.

Read with the preamble, it provides that the videotaped

statement is admissible into evidence if subdivisions (A)

through (H) are complied with and if:

With respect to criminal prosecutions in which

the testimony of the child is not taken under

subsections (d) or (e), or if so taken, is not

shown at the trial, or the child is nonetheless

ordered to testify in court under subsection (e),

App. 12

either party is allowed to call the child as a

witness and the opposing party is allowed to

cross-examine the child.

The testimony of the child in the present case was not

taken under subsections (d) or (e), nor was the child

ordered to testify in court by the trial judge. Accordingly

this appears to be a prosecution under which the video-

tape would be admissible if

le]ither party is allowed to call the child as a

witness and the opposing party is allowed to

cross-examine the child.

Counsel for appellant has insisted that the provisions

of subsection (c) do not make an ex parte videotaped

interview of a child victim admissible at a trial, and that

such tapes may be used only at preliminary hearings, at

least as substantive evidence. Both the State and the trial

judge have construed the statute as permitting the use of

such tapes at the trial itself, however, and in our opinion

that is the apparent meaning of subdivision (ii) of T.C.A.

§24-7-116(c)(1) (1).

Under this construction the ex parte videotaped inter-

view would be admissible, as substantive evidence, dur-

ing the state’s case-in-chief where “either party is

allowed to call the child as a witness” and where “the

opposing party” is allowed to “cross-examine” the child.

If the State had called the child in this case as a

witness, the appellant would have been entitled to “cross-

examine” the child. Otherwise, apparently the statute

contemplates that the accused may call the child for

direct examination and that the State may cross examine

the child victim. At least as utilized in this case, the effect

is that the State may produce evidence in chief by an

App. 13

unsworn witness, and the accused is then forced to call

the child, if desired, as a witness for direct examination.

The trial judge and the State in the present case have

construed the statute as authorizing the defendant to call

the child in order to conduct cross-examination. This

construction is contrary to the plain language of T.C.A.

§24-7-116(c)(1) (Dai).

There are distinct differences between direct and

cross-examination. Under the statute as literally worded,

the defendant would be required to call his chief accuser

to the stand as the defendant’s witness and to proceed

with the direct examination. Allowing for leniency in

direct examination and leading for immature witnesses,

nevertheless the defendant, under present evidentiary

rules in this State, would be required to “vouch” for the

witness if forced to call the child as a defense witness.

King v. State, 187 Tenn. 431; 215 S.W.2d 813 (1948); Sanders

v. McNatt, 58 Tenn.App. 385, 430 S.W.2d 797 (1968); see

generally Paine, Tennessee Law of Evidence §217.

It might be possible, of course, to construe the statute

as permitting the defendant to “cross-examine” even

though the State had not called the child as a live witness

at trial, although, again, that is not the literal wording of

the statute.? As it is actually phrased, the statute would

2 In order to avoid confrontation problems, this Court

has construed a statute as permitting the defendant to call a

witness as upon cross-examination, and to treat the witness as

a state’s witness. See State v. Hughes, 713 S.W.2d 58 (Tenn.

1986). The witness in that case, however, was not the chief

(Continued on following page)

App. 14

permit the State to use the unsworn videotaped statement

of the child as evidence in chief, the defendant would

then have to call the child as his or her witness and the

State would be allowed, in effect, to cross-examine its

own witness.

This, to say the least, is a drastic departure from

ordinary trial procedure. The new Tennessee Rules of

Evidence, which have been adopted by this Court and

approved by the General Assembly, will become effective

on January 1, 1990. They abolish the “voucher” rule and

permit either party to impeach a witness no matter by

whom called. T.R.E. 607. That was not the situation at the

time the statute under consideration was enacted, nor

was it the situation at the time the present case was tried.

Insofar as we can tell from the present record, or at

least according to the briefs of the parties, the child

victim in the present case was present at trial and was

available at all times for either party to call him as a

witness. Neither party did so, nor did the court call the

child as a court’s witness, as might be done under some

circumstances. See Montesi v. State, 220 Tenn. 354, 417

S.W.2d 554 (1967).

There does not seem to be any doubt that either party

would have been allowed to call the child as a witness if

(Continued from previous page)

accuser of the defendant, but was only an expert who was

required to interpret or testify regarding laboratory test results.

Even if the present statute were construed as permitting cross-

examination of the child by the defendant without calling the

child as a defense witness, serious confrontational issues

remain.

App. 15

desired, so that the pre-trial, unsworn, ex parte hearsay

statement of the child was admissible under the statutory

subdivision in question if that provision may validly be

applied.

C. The Confrontation Issue

The Sixth Amendment to the Constitution of the

United States guarantees to the accused the right, among

others, “to be confronted with the witnesses against

him.”

Article I, section 9 of the Tennessee Constitution is

somewhat more specific. It guarantees the accused the

right “to meet the witnesses face to face.”

Both constitutional provisions have been the subject

of extensive judicial interpretation. One of the most

recent decisions from the Supreme Court of the United

States construing the federal constitution is Coy v. lowa,

487 U.S. __, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The

opinion in that case was released more than three months

after the opinion of the Court of Criminal Appeals in the

present case. While the statutory provisions considered

there were somewhat different, it is our conclusion that if

the statutory procedures involved in Coy did not meet

federal constitutional guarantees, then those in the pre-

sent case likewise do not.

The Coy case involved child sexual abuse. In that case

the child testified at trial but under a lighting arrange-

ment which permitted the accused to see and hear the

witness but prevented the witness from actuaily seeing

the accused. Six members of the United States Supreme

a

App. 16

Court held that the federal confrontation clause guaran-

teed the accused the right to a literal face-to-face confron-

tation with the witness who testified against him at trial,

at least in the absence of a specific showing of need to

dispense with that aspect of confrontation or in the

absence of an established exception to the hearsay rule.

See 487 U.S. at __; 108 S.Ct. at 2803; 101 L.Ed.2d at 868

(O’Connor, J., concurring).

In cases of real necessity, the guarantee of the right of

confrontation can be required to yield, as in California v.

Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

Further the Coy decision seems to have left open the

question of whether a “necessity” exception exists to the

accused’s right to confront the alleged child victim.? In

3 Justice O’Connor in her concurring opinion stated:

Thus, | would permit use of a particular trial

procedure that called for something other than face-

to-face confrontation if that procedure was necessary

to further an important public policy. [citations omit-

ted.] The protection of child witnesses is, in my view

and in the view of a substantial majority of the

States, just such a policy. The primary focus there-

fore likely will be on the necessity prong. I agree

with the Court that more than the type of gener-

alized legislative finding of necessity present here is

required. But if a court makes a case-specific finding

of necessity, as is required by a number of state

statutes, see, e.g., Cal. Penal Code Ann. § 1347(d)(1)

(West Supp. 1988); Fla. Stat. § 92.54(4) (1987);

Mass.Gen.Laws § 278:16D(b)(1) (1986); N.J. Stat.Ann.

§ 2A:84A-32.4(b) (Supp.1988), our cases suggest that

the strictures of the Confrontation Clause may give

(Continued on following page)

App. 17

the present case, however, there has been no judicial

determination whatever that the child witness would be

in any way traumatized or stressed by appearing in court,

nor has any other particularized need been suggested for

use by the State of the prior ex parte statement of the

witness. In similar circumstances the Texas Court of

Criminal Appeals recently held unconstitutional a statu-

tory provision in that state authorizing a pre-trial video-

taped interview of a child victim. See Long v. State, 742

S.W.2d 302 (Tex. Crim. App. 1987), cert. denied __: U.S. ___

, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988).

In the case of California v. Green, supra, the United

States Supreme Court had held that previous sworn testi-

mony of a witness, given at a preliminary hearing, could

be admitted as substantive evidence at trial if the witness

subsequently became unavailable. The decision in that

respect is similar to that of this Court in the case of State

v. Causby, 706 S.W.2d 628 (Tenn. 1986). The exception for

former sworn testimony is not applicable in the present

case, nor was it applicable in Coy, supra.

In the case of State v. Bastien, N.E.2d __ (Ill.

1989), released on June 19, 1989, the Supreme Court of

Illinois held unconstitutional statutory provisions permit-

ting the admission in evidence of an oral statement or

testimony of a child sexual abuse victim if recorded on

(Continued from previous page)

way to the compelling state interest of protecting

child witnesses. Because nothing in the Court’s opin-

ion conflicts with this approach and this conclusion,

I join it.

487 U.S. at__; 108 S.Ct. at 2805; 101 L.Ed.2d at 869-70 (O’Con-

nor concurring).

App. 18

videotape where the defendant was denied the right of

contemporaneous cross-examination. One condition of

admissibility was that the child be “available” to testify at

trial. The Illinois Supreme Court held that the statute

violated both federal and state constitutional guarantees

of the right of confrontation.

In its analysis of the Illinois statutory procedure the

Bastien court addressed the provision which allowed

“cross-examination” of the victim at trial. In its discus-

sion of this provision the court addressed the Green

decision:

The crucial difference, however, between the

out-of-court statement in Green and the out-of-

court videotaped statement in the case at bar is

that in Green the statement was a prior inconsis-

tent statement. It is clear that the nature of the

statement at issue was critical to the Court. Ina

passage most pertinent to the case at bar, the

Court stated:

“The main danger in substituting sub-

sequent for timely cross-examination seems

to lie in the possibility that the witness’

‘[flalse testimony is apt to harden and

become unyielding to the blows of truth in

proportion as the witness has opportunity

for reconsideration and influence by the

suggestions of others, whose interest may

be, and often is, to maintain falsehood

rather than truth.’ State v. Saporen, 205

Minn. 358, 362, 285 N.W. 898, 901 (1939).

That danger, however, disappears when the

witness has changed his testimony so that,

far from ‘hardening,’ his prior statement has

softened to the point where he now repudi-

ates it.” 399 U.S. at 159, 26 L.Ed.2d at

497-98, 90 S.Ct. at 1935-36.

App. 19

The danger identified by the Supreme Court

is precisely the danger presented by the delayed

cross-examination authorized by the challenged

statute. It is quite possible that the videotaping

and the trial will take place months apart. Dur-

ing that time, the child undoubtedly will have

contact with the prosecutor and relatives who,

consciously or unconsciously, may influence the

child. We are convinced that the statute, by pro-

hibiting contemporaneous cross-examination,

unnecessarily and impermissibly infringes on an

accused's right of confrontation.

N.E.2d at __.

In the case of State v. Henderson, 554 S.W.2d 117

(Tenn. 1977), this Court discussed in detail the federal

cases dealing with the guarantee of the right of confronta-

tion, and concluded that if the federal constitution was

violated, the Tennessee Constitution was also violated. In

addition, we have already noted that the Tennessee Con-

stitution expressly uses the words “face to face”, and any

deviation from the literal meaning of that term generally

must be grounded in a well established exception in the

law of evidence or in a compelling state interest.4 While

we have recognized that child abuse cases represent

important interests of the State, nevertheless in our opin-

ion something more than the mere availability of a child

‘ Since we find that T.C.A. §24-7-116(c)(1) Di), as

used herein, violates the appellant's rights under the Sixth

Amendment to the United States Constitution, and, thus, Arti-

cle I, section 9 of the Tennessee Constitution, see State v. Hen-

derson, supra, we need not address whether our constitutional

right to a “face-to-face” confrontation provides greater protec-

tion than the federal constitution.

App. 20

witness for cross-examination is required before the ex

parte unsworn statement or affidavit of such a witness

could be admitted in evidence as substantive proof in

chief against an accused criminal defendant. We have

already noted that such statements might have other

uses, such as prior inconsistent statements, proof of the

actual condition of the child at the time the tape was

taken or the like. Ordinarily, however, they should not be

introduced for the truth of the complaint asserted, unless

taken by way of deposition under Rule 15, T.R.Crim.P. or

on court order pursuant to T.C.A. §24-7-116(d) or (e),

supported by particularized findings of necessity, unless

the defendant agrees or waives the issue. We therefore

find that the use of the videotaped statement in the

present case was error and that T.C.A.

§24-7-116(c)(1)(D(ii) is unconstitutional as utilized in this

case.

We do not see any constitutional problem in the

incidental use of a videotaped interview in the same

manner as any other pre-trial ex parte statement. To go

further, however, and permit a videotape procured out-

side the defendant’s presence to be used as evidence in

chief by the prosecution, in our opinion impermissibly

infringes upon the confrontation rights of the accused.®

One of the purposes of the 1985 legislation was to mini-

mize the repeated interrogation of a child and, probably,

to minimize the trauma of a child’s having to attend court

. The statute apparently would permit the defendant

also to use the tape if desired without calling the child as a

witness. That situation, of course, would involve waiver of the

confrontation issue, and the statute would simply create

another hearsay exception whose validity is not involved here.

App. 21

and testify as a witness. There are alternative procedures

in the statutes for taking the child’s testimony in a man-

ner similar to a deposition, with the defendant and his

attorney present and cross-examining at the time. See

T.C.A. §24-7-116(d) and (e). When either party attempts

to use a bare videotape made under subsection (c) of the

statute, however, the child can be required to be present

as a witness in court, so that the attempt to shield the

child from that experience is, to say the least, only par-

tially accomplished by the statute.

In summary, therefore, we hold that the attempt to

use the videotape in the manner shown in this case

violates the confrontation rights of the accused, and inso-

far as the statute purports to authorize such use, it is

unconstitutional. The ex parte recorded interview of a

child may be treated like any other piece of evidence,

such as a photograph or a written statement, and utilized

in evidence by the State only to such degree as the

established rules of evidence permit.

We recognize that the General Assembly may create

exceptions to the hearsay rule or other rules of evidence,

but it may not do so in such a way as to infringe unneces-

sarily upon the constitutionally guaranteed right of the

accused to confront witnesses in a criminal prosecution.

In the recent case of State v. Suttles, 767 S.W.2d 403

(Tenn. 1989) this Court held that a trial judge could not

privately talk with a child witness in the absence of the

defendant or his attorney and then report to the jury the

court’s findings. Neither, in our opinion, could the trial

App. 22

judge videotape his private interview with a child com-

plainant and play the tape before the jury. As stated in

that case:

We realize that child abuse cases are sensitive

and difficult, but they are criminal trials and

must be conducted accordingly.

767 S.W.2d at 407.

D. Qualification of a Child Witness

Prior to the 1985 legislation involved in this case,

T.C.A. §24-1-101 provided that every person of sufficient

capacity to understand the obligation of an oath was

competent to be a witness. The 1985 legislation added

two additional sentences, however, as follows:

Provided, however, where the witness being

qualified is a child under the age of thirteen (13)

and his or her testimony will be concerning a

sexual offense allegedly committed against such

child, such child is competent to be a witness.

Before testifying, such witness shall be required

to declare that he or she will testify truthfully,

by oath or affirmation administered in a form

calculated to awaken his conscience and impress

his or her mind with his or her duty to do so.

During the course of the trial of the present case

counsel for appellant objected to the use of the video-

taped statement of the child because no oath had been

administered. As previously stated, however, the child

was not actually called as a witness to testify by either

side, nor was the child’s testimony taken pre-trial pur-

suant to court order. In either of those events, of course,

the trial judge would have had to determine the compe-

tency of the child and would have had to use some form

App. 23

of oath or affirmation. No particular ritual or form is

prescribed by the statute, but the trial judge must be

satisfied that the child understands his or her duty to

testify truthfully.

In the present case the trial judge indicated that he

had concluded that there were sufficient “indicia of

reliability” within the purview of T.C.A.

§24-7-116(c)(1)(H). Necessarily this must involve some

determination by the trial judge that the child was suffi-

ciently mature to have credibility and to understand what

was being asked of him. Further, failure to administer an

oath to a witness is a matter which can be waived or

which can amount to harmless error under various cir-

cumstances. See Hewlett v. State, 517 S.W.2d 760, 767

(Tenn. Crim. App. 1974), cert. denied 422 U.S. 1011, 95

S.Ct. 2636, 45 L.Ed.2d 675 (1975).

The State insists that the issue was waived in the

present case, but we find no merit to that insistence. The

objection for failure of the trial judge to administer an

oath is not the kind of suppression motion required to be

made prior to trial under Rule 12(b), Tennessee Rules of

Criminal Procedure. Indeed in many cases such a motion

could not be made pre-trial, unless the trial judge had

ordered the testimony of the child to be taken under

other provisions of the statute here in question and a

sufficient oath had not been administered. The mere fact

that the objection of counsel was made after the witness

had testified does not constitute a waiver.

We feel it important to mention this matter, because

in some cases it has been indicated that failure of counsel

App. 24

to make a contemporaneous objection to evidence auto-

matically constitutes a waiver. See, e.g., State v. Glebock,

616 S.W.2d 897, 903 (Tenn. Crim. App. 1981). This is true

only if counsel also fails to make a timely motion to

strike.

A motion to strike testimony from the record is one

form of objection. It may be made after evidence has

already been introduced and the movant seeks to have

that evidence stricken from the record or from consider-

ation by the jury. It is a well established trial procedure,

and that is all that occurred in the present case. The

evidentiary record was still open when counsel’s objec-

tion was made, and a motion to strike may properly be

made at any time prior to the formal closing of the

evidentiary record and the final resting of the case by all

parties.

This practice is firmly rooted in Tennessee trial pro-

cedure. In a leading criminal case, Moon v. State, 146

Tenn. 319, 368, 242 S.W. 39, 53 (1922) the court said:

Objection to this testimony by Dr. Drake

was not interposed until after he had answered

the question, when counsel for the defendant

asked the court to withdraw the evidence from

the jury.

It is contended by the state that the motion

to have the evidence withdrawn came too late.

To this we cannot assent. It is well settled by

our decisions that a party adversely affected by

the introduction of incompetent testimony may

move to have same excluded any time before the

jury retires to consider its verdict, provided, of

course, he has not waived his right to have it

withdrawn.

App. 25 _

See also Lee v. Lee, 719 S.W.2d 295, 296-97 (Tenn. App.

1986); Paine, Tennessee Law of Evidence §183 (1974); Piv-

nick, Tennessee Circuit Court Practice § 24-14 (2d ed.

1986).

Nothing in either the rules of civil or criminal pro-

cedure was ever intended to eliminate the trial motion to

strike evidence from the record or to withdraw it from

consideration by a jury. Sometimes it can serve as a late

objection or a renewed objection, or it can serve to strike

evidence which had previously been conditionally admit-

ted when the condition has not later been met. The

motion is expressly retained and recognized in the new

rules of evidence, T.R.E. 103(a), as follows:

Effect of erroneous ruling -- Error may not

be predicated upon a ruling which admits or

excludes evidence unless a substantial right of a

party is affected, and

(1) Objection. -- In case the ruling is one

admitting evidence, a timely objection or motion

to strike appears of record, stating the specific

ground of objection if the specific ground was

not apparent from the context...

Although counsel did not characterize her objection

in the present case as a motion to strike, it had the same

effect, and the issue was not waived simply because the

motion was made after the evidence had been introduced.

We find no merit to the objection in the present case,

and the trial judge properly overruled it because the child

was never called as a witness for the purpose of giving

evidence in the first place, and his competency, at least

impliedly, had previously been determined by the trial

judge.

App. 26

The judgment of the trial court is affirmed at the cost

of appellant. The cause will be remanded to that court for

any further proceedings which may be necessary.

/s/ William J. Harbison

William J. Harbison,

Justice

Concur:

Drowota, C.J.

Fones, Cooper, JJ.

Cantrell, S.J.

App. 27

APPENDIX B

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSZE, ) For Publication

Appellee ‘ September 11, 1989

VS. ) McMinn Criminal No. 150

SAM PILKEY, } Honorable R. Steve Bebb

Appellant ) Judge

ORDER

A petition for rehearing has been filed on behalf of

appellant. After consideration of the same, the Court is of

the opinion that the petition is not well taken, and it is

accordingly denied at the cost of appellant.

Enter this 11th day of September, 1989.

For the Court:

/s/ William J. Harbison

William J. Harbison,

Justice