State of Tennessee v. Erica Harris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 18, 2012 Session

STATE OF TENNESSEE v. ERICA HARRIS

Appeal from the Criminal Court for Knox County
No. 93165 Bob R. McGee, Judge

No. E2012-01107-CCA-R3-CD - Filed March 25, 2013

The defendant, Erica Harris, appeals her Knox County Criminal Court jury conviction of the
sale and delivery of .5 grams or more of cocaine, claiming that the trial court erred by
admitting certain evidence in violation of Tennessee Rule of Evidence 404(b) and evidence
of poor quality in violation of Tennessee Rule of Evidence 403 and that admission of a map
violated her constitutional right to confront the witnesses against her. Discerning no error,
we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Erica Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant’s conviction arose from a controlled drug purchase on August
24, 2009. At trial, 27-year-old Francis Brady, who testified that she had a history of drug
abuse and drug-related criminal convictions, said that she became an informant for the
Knoxville Police Department (“KPD”) in 2007 after discussing it with an officer that
attended her church. For the controlled buy involving the defendant, she was searched and
fitted with a recording device before traveling to a residence on New Street in the Austin
Homes community. She said that before the August 24, 2009 transaction, she had seen and
interacted with the defendant “[a] good five or six times,” that she was familiar with the
defendant’s apartment, and that she knew both of the defendant’s sons, Darius and “Zonfo.”
Ms. Brady explained that she had arranged to purchase drugs from Zonfo on a previous
occasion.

According to Ms. Brady, the plan on August 24, 2009, was for Ms. Brady to
go to the defendant’s residence and purchase crack cocaine from “just whoever was in the
residence.” When she arrived, the defendant let her into the apartment, and Ms. Brady
described what happened next:

I told her I needed a $100 worth of crack cocaine, and she had
gone in the kitchen and brought back a DVD which had several
rocks on it. And she had said that it was her son’s dope that she
didn’t know if she could give it all to me, so she had got him on
the phone and tried to call him and he didn’t answer the phone.

At that point, the defendant told her she “could have all the dope that was on top of the . . .
DVD case.” Ms. Brady said that she agreed because she “thought it was pretty big. It was
a little over a hundred dollars worth.” She said that the defendant gave her “a bread wrapper
off of bread,” and Ms. Brady packaged the cocaine herself. Ms. Brady then gave the
defendant $100.

An audio recording of the transaction was played for the jury over the
defendant’s objection. The recording, which was included in the record on appeal, is largely
unintelligible. A woman other than Ms. Brady identified herself as “Erica” on the recording.
Ms. Brady identified the defendant as the woman with whom she interacted during the
recorded transaction.

During cross-examination, Ms. Brady said that the use of street names and false
identities was common in the illegal drug trade.

KPD Officer Michael Geddings testified that he supervised Ms. Brady in her
role as a confidential informant and explained the procedure for conducting controlled drug
purchases. He explained that confidential informants are paid in cash for each controlled buy
they complete if they are “not working off charges.” Officer Geddings testified that on
August 24, 2009, Ms. Brady made him aware of “drug activity at an apartment . . . in the
Austin Homes community,” telling him that she had purchased drugs from a black male
named Zonfo and that Zonfo’s mother, Erica Harris, was present during the transaction.
Although Ms. Brady did not know the apartment number, she did know the location. With
the assistance of Google Earth, Officer Geddings was able to determine the address.

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Through further investigation, he confirmed that the address was the defendant’s residence.
Officer Geddings testified that he showed the defendant’s driver’s license photo to Ms.
Brady, who confirmed that the defendant was the woman named Erica that Ms. Brady knew
to live in the New Street apartment. Officer Geddings testified that he fitted Ms. Brady with
recording equipment and “instructed [her] to attempt to purchase a hundred dollars worth of
crack cocaine from . . . the apartment . . .that she had identified and that we had identified
as 1116 West New Street, apartment number 295.” He described what happened upon their
arrival at 1116 West New Street:

[Ms. Brady] exited and then walked into the apartment through
the front door, was in there approximately a little over two
minutes and then exited through the same door. At which time,
she got back into the vehicle, handed me the crack cocaine that
had been purchased and then we drove back to the police
department.

At the police department, Ms. Brady was searched and instructed to provide a written
statement while Officer Geddings weighed, photographed, and field tested the drugs for the
presence of cocaine. After the field test was positive, Officer Geddings placed the drugs into
an evidence envelope and sent it to the Tennessee Bureau of Investigation (“TBI”) laboratory
for testing. Officer Geddings identified the defendant’s voice on the audio recording of the
transaction after noting his familiarity with it.

During cross-examination, Officer Geddings testified that information gleaned
during his investigation led him to believe that Tramell Harris, the defendant’s son, was in
charge of all drug sales taking place in the residence.

KPD Officer Joshua Schaffer testified that he assisted Officer Geddings in the
execution of a search warrant at the defendant’s residence on September 15, 2009. During
the search, Officer Schaffer detained the defendant. After he provided her with Miranda
warnings, the defendant told Officer Schaffer that “the crack she had sold . . . was her son’s
and that her son was the one that obtained the crack cocaine and that if he was not there on
that occasions she sold.” Officer Schaffer conceded that the defendant did not specify a time
frame for when she sold drugs.

TBI Agent and Forensic Scientist Carl Smith testified that he tested the rock-
like material sent by Officer Geddings and determined it to be .9 grams of crack cocaine.

Knoxville Geographic Information Systems (“KGIS”) Analyst Garrett
McKinney testified that, at the request of the State, he utilized geographic data available from

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various governmental entities to create a map showing the defendant’s residence and its
proximity to the Green Magnet Elementary School. He also highlighted a 1,000 foot “buffer”
from the school’s parcel boundary. Using available data, Mr. McKinney calculated the
distance between the “exterior parcel boundary of the Green Magnet School” and the
defendant’s apartment as 597 feet.

During cross-examination, Mr. McKinney acknowledged that he did not
personally measure the distance between the defendant’s residence and the school’s boundary
and that all KGIS maps come with a disclaimer that “KGIS makes no representation or
warranty as to the accuracy of this map and its information to fitness for any – or for use.”
He said that it was not possible that the measurements were more than 400 feet wrong.

Following Mr. McKinney’s testimony, the State rested, and the defendant
presented the testimony of the defendant’s son, Tramell Harris. Mr. Harris testified that on
August 24, 2009, he lived at 1116 New Street with the defendant, his siblings, and his
mother’s husband. The defendant, he said, held two jobs, one with “GC Service” and one
as a care giver for an elderly woman, while he sold cocaine out of the New Street residence.
Mr. Harris acknowledged that he had pleaded guilty in juvenile court to the possession of
cocaine. Mr. Harris testified that his aunt, Andrea Johnson, stayed with the family in August
2009 and that Ms. Johnson used and sold crack cocaine.

During cross-examination, Mr. Harris acknowledged that he sold crack from
the residence the entire time he lived there and that, although his aunt sold crack cocaine on
occasion, he was the primary source of cocaine in the household. He said that he kept the
crack cocaine in a closet, sometimes the closet in his bedroom and sometimes the
“downstairs” closet. Mr. Harris conceded that execution of a search warrant at the home on
September 15, 2009, resulted in the discovery of cocaine in the defendant’s bedroom closet.
Mr. Harris said that he placed the cocaine in his mother’s closet because he “was leaving.”
Mr. Harris acknowledged that he had no personal knowledge whether the defendant sold
crack cocaine to Ms. Brady on August 24, 2009, because he was not home. Mr. Harris
conceded that the defendant knew that he sold drugs, but he claimed that the defendant tried
to stop him.

Following this testimony, the defense rested, and the State presented rebuttal
testimony from the defendant’s sister, Andrea Johnson Drury, and Ms. Brady. Ms. Drury
denied any involvement in the sale of cocaine. She said that she had seen Ms. Brady on those
occasions that Ms. Brady purchased drugs from the defendant and Mr. Harris. Ms. Brady
denied having purchased drugs from Ms. Drury.

From this evidence, the jury convicted the defendant as charged of the sale and

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delivery of more than .5 grams of cocaine. The trial court merged the convictions and
imposed a single sentence of 17 years’ incarceration. Following the denial of her timely but
unsuccessful motion for new trial, the defendant filed a timely notice of appeal.

In this appeal, the defendant contends that the trial court erred by admitting into
evidence the defendant’s admission that she had sold cocaine in the past and evidence that
cocaine was discovered in her bedroom because both the admission and the discovery were
inadmissible bad act evidence. She also contends that the quality of the audio recording of
the controlled purchase was so poor that it should not have been admitted into evidence.
Finally, the defendant asserts that admission of a map created by a compilation of
measurements from several sources without those sources being available for cross-
examination violated her constitutional right to confront the witnesses against her. We
consider each claim in turn.

I. Bad Act Evidence

The defendant avers that the trial court erred by admitting evidence of her other
bad acts in the form of her admission that she had sold cocaine “in the past” and proof that
cocaine was discovered in her closet during a search of her home that was unrelated to the
charges in this case. The State contends that the trial court did not err.

Tennessee Rule of Evidence 404 provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity with the character trait. It may, however, be admissible for other purposes.”
Tenn. R. Evid. 404(b). Before such evidence may be admitted, however, the following
procedure must be followed:

(1) The court upon request must hold a hearing outside the
jury’s presence;

(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and the
reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act
to be clear and convincing; and

(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

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Tenn. R. Evid. 404(b)(1)-(4).

A. Admission

While she was detained during the execution of a search warrant at her
residence on September 15, 2009, the defendant told Officer Schaffer that “the crack she had
sold . . . was her son’s and that her son was the one that obtained the crack cocaine and that
if he was not there on that occasion she sold.” The defendant objected to the admission of
this statement as evidence of a prior, uncharged bad act. The State argued that the statement,
taken only weeks after the controlled buy orchestrated by Ms. Brady on August 24, 2009, was
direct evidence of the defendant’s guilt. The trial court agreed with the State and admitted
the statement.

The defendant’s admission did not include a time frame for when she had sold
drugs on behalf of her son, but even if the temporal proximity of the admission to the offense
on trial does not suggest that the admission related to the August 24, 2009 transaction, any
error in admitting the evidence is harmless given the other proof in the case.

B. Cocaine

The defendant contends that the trial court erred by permitting the State to
introduce evidence that crack cocaine was discovered in the defendant’s bedroom closet
during the execution of a search warrant on September 15, 2009. The State argued at trial
that the evidence was admissible as proof of identity, a purpose generally allowed under the
rules of evidence. On appeal, the State also argues that the evidence was admissible to
impeach Mr. Harris’s claim that all drugs found in the home belonged to him and that he
stored them elsewhere.

Again, evidence that cocaine was discovered in the defendant’s closet during
the execution of a search warrant does not qualify, in this instance, as the type of evidence
prohibited by Rule 404(b). Initially, the proof was admitted to impeach claims made by Mr.
Harris about his own possession and storage of cocaine within the home and not to show the
defendant’s propensity to commit drug crimes. The State solicited testimony that Mr. Harris
was charged with possession of cocaine relative to the September 15, 2009 discovery and that
he pleaded guilty in the juvenile court to possessing the cocaine discovered in the defendant’s
closet. The State also argued that the cocaine discovered in the defendant’s closet was not
evidence of another bad act but evidence of her guilt for the offense on trial, pointing out that
the cocaine was stored in exactly the same way as recounted by Ms. Brady. In our view, the
evidence was admissible to corroborate Ms. Brady’s testimony regarding the condition of the
cocaine when given to her by the defendant. The trial court did not err by admitting this

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evidence.

C. Defendant’s Right to Testify

Finally, the defendant argues that the trial court’s erroneous admission of the
defendant’s other bad acts “had a chilling effect” on her right to testify. The State contends
that the defendant was not deprived of the right to testify and that, because she failed to make
an offer of proof, she has failed to demonstrate any prejudice from the trial court’s rulings.

As discussed more fully above, this evidence was not subject to exclusion by
Rule 404(b). Because the trial court did not err by admitting the evidence, we cannot say that
its admission impermissibly infringed on the defendant’s right to testify.

II. Audio Recording

Citing United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983), the
defendant sought exclusion of both the audio recording of the controlled drug buy and the
transcript prepared by the State on grounds that the quality of the audio recording of the
controlled drug purchase was so poor as to render the recording inadmissible under
Tennessee Rule of Evidence 403. On appeal, the defendant concedes that Robinson “is not
the law in Tennessee” and does not advocate for its application here. She reiterates her
claim, however, that both the recording and the transcript should have been excluded under
Rule 403 because of the “high danger for unfair prejudice” and “the strong risk that the
recording” could have misled the jury. The State contends that the trial court did not err by
admitting the recording.

The audio recording, included in the record on appeal, is indeed of very poor
quality. Voices of two women and at least one man, possibly two, are barely audible over
the static associated with the equipment being hidden inside Ms. Brady’s clothing and the
very loud barking of a dog throughout a great deal of the transaction. The quality is so poor,
in fact, that we question its relevance as to the defendant’s guilt. See Tenn. R. Evid. 401.
That being said, at one point in the recording, a woman is heard to identify herself as “Erica,”
corroborating Ms. Brady’s claim that it was the defendant who sold the cocaine to her. Thus,
the recording was arguably probative of the defendant’s guilt, and we cannot say that the
probative value of the recording was substantially outweighed by the danger of unfair
prejudice. See Tenn. R. Evid. 403 (“Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”). As to the defendant’s claims regarding the
transcript, the trial court instructed the jury that the transcript was not evidence but merely

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a guide to its consideration of the recording. See State v. Walker, 910 S.W.2d 381, 395
(Tenn. 1995) (“The procedure employed by the trial court accompanied by the instructions
which were delivered to the jury were sufficient to inform the jury on their duty in reference
to the evidence.”). The defendant is not entitled to relief on this issue.

III. Map

In her remaining claim, the defendant contends that the admission of the map
created by Mr. McKinney violated her right to confront the witnesses against her because the
State failed to produce those witnesses whose data was used to create the map. The State
asserts that admission of the map did not violate the defendant’s confrontation rights because
the map was not testimonial and because the trial court appropriately took judicial notice of
the map.

At trial, the defendant objected to admission of the map on grounds that it
violated her right to confront the witnesses against her, arguing that permitting Mr.
McKinney to relate to the jury “what others have compiled . . . prevents us from confronting
the people who actually created the measurements which means that we are unable to
confront the people who are generating the evidence that is an element of this offense.” The
State responded that the map was admissible because it was based upon public records. The
trial court admitted the map over the defendant’s objection, observing:

[T]his is actually a matter that could probably be introduced and
the Court could take judicial notice of it. As it is a matter
readily and accurately determinable, it’s not subject to
reasonable dispute. Anybody could take a measuring tape out
there and actually measure the distance between two geographic
things. The witness here is actually the face of the earth. This
is simply a matter of measurements being taken. This appear to
be – it would appear that the – what the defend – what the
witness is going to be called upon to talk about are matters that
would not be excluded involving quotations, tabulations list,
directories, other published compilations generally used and
relied upon by the public or by persons in particular occupations.

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 largely adopted the standards used by the United States

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Supreme Court . . . in determining whether the Tennessee constitutional right has been
violated.’” State v. Parker, 350 S.W.3d 883, 897-98 (Tenn. 2011) (quoting State v. Maclin,
183 S.W.3d 335, 343 (Tenn. 2006)); see also State v. Lewis, 235 S.W.3d 136, 144 (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. In Crawford, the Court laid
the groundwork for what came to be known as “the primary purpose” test for distinguishing
testimonial statements from non-testimonial statements. The Court refined the test in later
opinions:

Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006). The Court noted that objective evaluation
of “the circumstances in which the encounter occurs and the statements and actions of the
parties” is necessary to determine whether a statement is testimonial or non-testimonial.
Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011).

In Melendez-Diaz v. Massachusetts, the Court moved beyond the realm of
interrogation to consider whether “affidavits reporting the results of forensic analysis which
showed that material seized by the police and connected to the defendant was cocaine” were
testimonial and thus subject to exclusion as violative of the Confrontation Clause.
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2530 (2009). The Court answered that
question in the affirmative, concluding that “not only were the affidavits ‘made under
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial,’ but under Massachusetts law the sole purpose of
the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net
weight’ of the analyzed substance.” Id. at 2532 (citations omitted). The court held that
“[a]bsent a showing that the analysts were unavailable to testify at trial and that [the accused]

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had a prior opportunity to cross-examine them, [the accused] was entitled to ‘be confronted
with’ the analysts at trial.” Id. (quoting Crawford, 541 U.S. at 54). Concluding that live
confrontation of the witness by the accused was the only constitutionally permissible way “to
challenge or verify the results of a forensic test,” the Court observed that confrontation would
serve to “weed out” both fraudulent and incompetent forensic analysis. Id. at 2536-37. The
Court rejected the argument that reports of forensic testing were admissible as business
records and that all business records were exempted from the ruling in Crawford, explaining,
“Business and public records are generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but because--having been created for the
administration of an entity’s affairs and not for the purpose of establishing or proving some
fact at trial--they are not testimonial.” Id. at 2539-40.

The Court elaborated on the Melendez-Diaz ruling in Bullcoming v. New
Mexico. In Bullcoming, the prosecution introduced the results of forensic testing via the
testimony of a forensic analyst “who was familiar with the laboratory’s testing procedures,
but had neither participated in nor observed the test on Bullcoming’s blood sample.”
Bullcoming v. New Mexico, 131 S. Ct. 2705, 2709 (2011). The Court declared that such a
procedure violated Bullcoming’s confrontation right, holding, “As a rule, if an out-of-court
statement is testimonial in nature, it may not be introduced against the accused at trial unless
the witness who made the statement is unavailable and the accused has had a prior
opportunity to confront that witness.” Id. at 2713. The Court rejected the argument that
substitute testimony satisfied the constitutional requirement because of the reliable nature of
the tests themselves, explaining that “the analysts who write reports that the prosecution
introduces must be made available for confrontation even if they possess ‘the scientific
acumen of Mme. Curie and the veracity of Mother Teresa.’” Id. at 2715 (quoting Melendez-
Diaz, 129 S. Ct. at 2537). Emphasizing as it did in Crawford that “‘[t]he text of the Sixth
Amendment does not suggest any open-ended exceptions from the confrontation requirement
to be developed by the courts,’” id. at 2716 (quoting Crawford, 541 U.S. at 54), the Court
observed that it was not “‘the role of courts to extrapolate from the words of the
[Confrontation Clause] to the values behind it, and then to enforce its guarantees only to the
extent they serve (in the courts’ views) those underlying values,’” id. (quoting Giles v.
California, 554 U.S. 353, 375 (2008)), and held that the Confrontation Clause “does not
tolerate dispensing with confrontation simply because the court believes that questioning one
witness about another’s testimonial statements provides a fair enough opportunity for
cross-examination,” id.

Most recently, the Court revisited the rulings in Bullcoming and Melendez-Diaz
in Williams v. Illinois, and confronted the issue framed by Justice Sotomayor in her
concurring opinion in Bullcoming, that is “‘the constitutionality of allowing an expert witness
to discuss others’ testimonial statements if the testimonial statements were not themselves

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admitted as evidence.’” Williams v. Illinois, 132 S. Ct. 2221, 2233 (2012) (quoting
Bullcoming, 131 S. Ct. at 2722). Writing for a plurality that included Chief Justice Roberts
and Justices Kennedy and Breyer, Justice Alito concluded that testimonial statements
admitted solely for the purpose of explaining the opinion reached by an expert witness are
not barred by the Confrontation Clause because they are not admitted for the purpose of
proving the truth of the matter asserted. Id. at 2240. Justice Alito also concluded that the
evidence at issue in Williams, expert testimony that DNA evidence extracted from semen in
the victim’s vagina matched a DNA profile for Williams, did not violate the Confrontation
Clause because neither DNA profile created and compared by the expert at issue was
“prepared for the primary purpose of accusing a targeted individual.” Id. at 2243. Instead,
the “primary purpose” of the profile created using the sample from the victim’s vaginal
swabs “was to catch a dangerous rapist who was still at large, not to obtain evidence for use
against [Williams], who was neither in custody nor under suspicion at that time.” Id.

In a separate opinion joined by Justice Thomas, Justice Breyer adhered to his
position that “experts may rely on otherwise inadmissible out-of-court statements as a basis
for forming an expert opinion if they are of a kind that experts in the field normally rely
upon” without tendering the evidence for admission or calling as a witness the maker of
those statements and still not run afoul of the Confrontation Clause. Id. at 2246 (Breyer, J.,
concurring). Noting the practical considerations attendant to abandoning this traditional rule,
Justice Breyer observed:

Once one abandons the traditional rule, there would seem often
to be no logical stopping place between requiring the
prosecution to call as a witness one of the laboratory experts
who worked on the matter and requiring the prosecution to call
all of the laboratory experts who did so. Experts--especially
laboratory experts--regularly rely on the technical statements
and results of other experts to form their own opinions. The
reality of the matter is that the introduction of a laboratory report
involves layer upon layer of technical statements (express or
implied) made by one expert and relied upon by another.

Id. Justice Breyer stated that he “would consider reports such as the DNA report . . .
presumptively to lie outside the perimeter of the Clause as established by the Court’s
precedents.” Id. at 2251.

Writing solely for himself, Justice Thomas concluded that the reports at issue
did not run afoul of the Confrontation Clause because they “lacked the requisite ‘formality
and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause.” Id.

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at 2255 (Thomas, J., concurring in the judgment only). Justice Thomas did not agree with
“the plurality’s flawed analysis” regarding the allegedly nonhearsay purpose of the reports
because, he said, “there was no plausible reason for the introduction of Cellmark’s statements
other than to establish their truth.” Id. at 2255, 2256. He observed, “[S]tatements introduced
to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay
purpose. There is no meaningful distinction between disclosing an out-of-court statement
so that the factfinder may evaluate the expert’s opinion and disclosing that statement for its
truth.” Id. at 2257.

Justice Kagan, in an opinion joined by Justices Scalia, Ginsburg, and
Sotomayor, concluded that the evidence at issue was testimonial, was offered for its truth,
and, despite being clothed as evidence relied upon by an expert, ran afoul of the
Confrontation Clause. Justice Kagan emphasized that Justice Alito’s opinion represented a
“plurality” only in “its disposition” because “[f]ive Justices specifically reject every aspect
of its reasoning and every paragraph of its explication.” Id. at 2257 (Kagan, J., dissenting).
Noting the similarity of the case to that presented in Bullcoming and Melendez-Diaz, see id.
at 2267 (“Have we not already decided this case?”), Justice Kagan held that “‘when the State
elected to introduce’ the substance of Cellmark’s report into evidence, the analyst who
generated that report ‘became a witness’ whom Williams ‘had the right to confront’” see id.
at 2268 (quoting Bullcoming, 131 S. Ct. at 2716). Justice Kagan did not agree with the
plurality’s conclusion that the report at issue did not violate the Confrontation Clause because
it was not admitted for its truth, stating that “admission of the out-of-court statement in this
context has no purpose separate from its truth; the factfinder can do nothing with it except
assess its truth and so the credibility of the conclusion it serves to buttress.” Id. at 2269.
Justice Kagan specifically observed employment of the plurality’s analysis would invite
error: “If the Confrontation Clause prevents the State from getting its evidence in through
the front door, then the State could sneak it in through the back. What a neat trick--but
really, what a way to run a criminal justice system. No wonder five Justices reject it.” Id.
at 2272. Finally, Justice Kagan emphasized an overarching theme of Confrontation Clause
jurisprudence:

It is not up to us to decide, ex ante, what evidence is trustworthy
and what is not. That is because the Confrontation Clause
prescribes its own “procedure for determining the reliability of
testimony in criminal trials.” That procedure is
cross-examination. And “[d]ispensing with [it] because
testimony is obviously reliable is akin to dispensing with jury
trial because a defendant is obviously guilty.”

Id. at 2275 (citations omitted).

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 We have reviewed the map presently in question. Actually, it is not a map in
the common sense; rather, it is an aerial photograph of the area where the school and the
defendant’s apartment are located. The photograph itself appears to have emanated from
KGIS or another governmental office providing geological or planning services. On the
photograph, Mr. McKinney delineated the property boundary of Green Magnet Elementary
School, which he apparently extracted from the property assessor’s records. Mr. McKinney
then delineated a 1,000 foot exterior buffer around the property line. He also pinpointed the
location of the defendant’s apartment and then, through the auspices of his office, computed
the distance from the school boundary line to the apartment and recorded the result, 597 feet,
on the map.

As noted by Justice Breyer in Williams, issues related to the admission of
expert evidence are layered. We discern three layers here: (1) the testimony of Mr.
McKinney; (2) the map he introduced into evidence; and (3) the underlying data retrieved
from governmental offices such as the planning commission and the assessor’s office.

The defendant has not challenged the admissibility of Mr. McKinney’s
testimony. The map itself we deem to be testimonial because Mr. McKinney created the map
at the request of the prosecutor for the sole purpose of using it at the defendant’s trial. See
Melendez-Diaz, 129 S. Ct. at 2532 (stating that evidence is testimonial when it is “‘made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’” (citations omitted)). We cannot discern
from Mr. McKinney’s testimony whether he created the map to illustrate the calculations that
he had already made or whether he created the map as a means of yielding the calculations.
In any event, the primary purpose of the map was to facilitate his testimony in this case. That
said, the admission of the map did not offend the Confrontation Clause because the creator
of that document, Mr. McKinney, testified in court and was cross-examined. See
Bullcoming, 131 S. Ct. at 2715; see also Crawford, 541 U.S. at 59 (“Testimonial statements
of witnesses absent from trial have been admitted only where the declarant is unavailable,
and only where the defendant has had a prior opportunity to cross-examine.” (emphasis
added)).

We turn, then, to the underlying data that Mr. McKinney used to create his
map. He testified that he utilized information from the KGIS database. The database,
curated by KGIS and used in its regular course of business, derived information from various
other governmental entities, including the property assessor and the Metropolitan Planning
Commission. Although the defendant is correct that the creators of those records were, in
this instance, witnesses against her, it does not follow that admission of the records violated
her constitutional rights. As the Supreme Court explained, admission of such records

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generally does not violate the rulings in Crawford and its progeny because “public records
are generally admissible absent confrontation . . . because--having been created for the
administration of an entity’s affairs and not for the purpose of establishing or proving some
fact at trial--they are not testimonial.” Melendez-Diaz, 129 S. Ct. at 2539-40.

Although we conclude that admission of the map did not violate the
defendant’s confrontation rights, we do not adopt the reasoning of the trial court. As
indicated, the trial court believed that it could take judicial notice of the map. We disagree.
“A judicially noticed fact must be one not subject to reasonable dispute, in that it is either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Tenn. R. Evid. 201(b). Although the data used to create the map, as public
records, were subject to the court’s taking judicial notice, see State v. Lawson, 291 S.W.3d
864, 870 (Tenn. 2009), the map itself was not. Nevertheless, as we have shown, the map was
admissible into evidence.

Conclusion

Because the trial court did not err by admitting the challenged evidence, the
judgment of the trial court is affirmed.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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