State of Tennessee v. Larry Edward Moore, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Appeal Upon Remand from the Supreme Court of Tennessee

STATE OF TENNESSEE v. LARRY EDWARD MOORE, JR.

Direct Appeal from the Criminal Court for Davidson County
No. 2007-A-514 Monte Watkins, Judge

No. M2010-02141-CCA-RM-CD - Filed November 16, 2011

Defendant, Larry Edward Moore, Jr., was convicted of carjacking, a Class B felony and was
sentenced to serve thirty (30) years as a Range III, career offender. This Court affirmed the
conviction and sentence in State v. Larry Edward Moore, Jr., No. M2008-00703-CCA-R3-
CD, 2010 WL 457493 (Tenn. Crim. App., filed Feb. 10, 2010) (hereinafter “Moore I”).
From that judgment, Defendant filed an application for permission to appeal to the Tennessee
Supreme Court pursuant to Tennessee Rule of Appellate Procedure 11. In his application,
Defendant presented only one specific issue, which is set forth below. In its order
concerning the Rule 11 application, the Supreme Court ordered a supplementation of the
record on appeal. The Supreme Court also remanded the case to this Court for
reconsideration, in light of the supplemental record, of Defendant’s “argument that the trial
court erred in not redacting from [the supplemented exhibit] certain portions of [Defendant’s]
statement to police.” Upon reconsideration of Defendant’s “redaction” issue, which we
initially held was waived for multiple reasons, we conclude the trial court erred, but the error
was harmless. Accordingly, we again affirm the judgment of the trial court.

Tenn. R. App. P. Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant Public Defender;
Ginny Flack, Assistant Public Defender; and Katie Weiss, Assistant Public Defender,
Nashville, Tennessee, for the appellant, Larry Edward Moore, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; Deborah Housel, Assistant
District Attorney General; and Latasha Alexander, Assistant District Attorney General, for
the appellee, the State of Tennessee.
 OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

The facts were set forth as follows the first time this Court considered this case:

Alysia Blackburn, the victim, testified on December 27, 2006, she
went to a jewelry store on Gallatin Road at approximately 4:15 p.m. to
inquire about adjusting a bracelet she had received as a birthday present the
day before. The victim left the engine to her grey 1999 Nissan Altima
running while she went into the store. From inside the store, the victim
observed Defendant walk by and look at her vehicle, so she went outside,
turned the engine off, and locked the vehicle. The victim returned to the
store, and Defendant entered the business as she was talking to the store’s
owner, Howard Lane. Defendant asked Mr. Lane if he could use Mr.
Lane’s telephone to call his wife because his vehicle would not start. When
Defendant was unsuccessful in reaching his wife, the victim asked
Defendant if she could help, and Defendant responded, “Yeah.” The victim
and Defendant got into the victim’s Altima, and Defendant directed her to
drive to a house on Riverwood Drive. The victim said that Defendant told
her that he “really appreciate[d] it.” The victim stated that she was “just
being nice” because she had previously been in a similar situation.

The victim pulled into the driveway indicated by Defendant and
began to feel uneasy. The victim stated that Defendant suddenly struck her
several times in the face. The victim struggled with Defendant as he
attempted to move from the passenger seat to the driver’s seat. The victim
reached for her purse in the backseat, and Defendant struck her again. The
victim stated that she gave up at that point and ceased struggling. She got
out of the Altima, and Defendant drove off.

Eugene Skaggs came out of his house and asked the victim if she
was all right. The victim said that she was crying, and she told Mr. Skaggs
that Defendant had stolen her vehicle. The victim stated:

[a]nd they kept staring at me, and I’m like, “Is my face
messed up?” And he was, like, “Yes, ma’am.” So that really

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 made me cry. And I knew that my family [was] going to be
upset because I tried to help somebody out.

The victim said that Mr. Skaggs had trouble understanding her
because her face was swollen. Mr. Skaggs called the police and the
victim’s family. The victim was transported to the hospital by ambulance,
and the emergency technician was concerned that the victim’s jaw was
broken. The victim told police officers that Defendant’s vehicle was parked
at the jewelry store. The victim also told them that her purse was in her
vehicle, and it contained, among other items, $212, two cell phones, and a
debit card.

The records for the victim’s cell phone were introduced as an exhibit
at trial and showed that an outbound call was made with the victim’s cell
phone at 5:22 p.m. on December 27, 2006. The victim stated that she did
not recognize the telephone number which received the call. The victim
said that she identified Defendant as the perpetrator from a photographic
lineup on December 27, 2006.

The victim stated that her jaw was not broken, but her face was
bruised and swollen for approximately one and one-half weeks, and people
had difficulty understanding her when she tried to speak. The victim said
that she never recovered her Altima or any of the items in the vehicle. The
victim stated that she did not give Defendant permission to take her vehicle.

On cross-examination, the victim acknowledged that she did not tell
the investigating officers that she observed Defendant looking at her vehicle
before he entered the store. The victim stated that she did not report the
theft of the credit cards to her bank and acknowledged that she was never
notified that the credit cards had been used. The victim said that Defendant
told Mr. Lane that the alternator on his vehicle was not working, and Mr.
Lane and Defendant discussed the location of the nearest car parts store.
The victim acknowledged that Defendant did not make any threatening
remarks on the drive to Riverwood Drive, and she described him as “nice.”

Mr. Skaggs testified that he lived at 1140 Riverwood Drive. Mr.
Skaggs stated that he was working at his computer on December 27, 2006,
when he noticed on his computer screen the reflection of a vehicle pulling
into his driveway. Mr. Skaggs did not recognize the vehicle and thought the
driver would turn around. Mr. Skaggs observed a man and woman in the

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vehicle and believed at first that the man was slapping the woman playfully.
Mr. Skaggs then realized that the man was striking the woman, and he went
outside. Mr. Skaggs said that the man got out of the vehicle and pulled the
victim out. The man then got back in the vehicle and drove off. Mr.
Skaggs said that he gave the victim ice for her face and called 911. Mr.
Skaggs stated that he was unable to identify the man who drove off in the
victim’s vehicle.

Howard Lane testified that he owned a jewelry store on Gallatin
Road. Mr. Lane knew the victim because she had visited the store before
the incident. Mr. Lane said that the victim stopped by the store on
December 27, 2006, to check on a bracelet’s repair. Mr. Lane said that
Defendant entered the store while he was talking to the victim and asked to
use Mr. Lane’s telephone because his vehicle would not start. Mr. Lane
handed Defendant his cell phone, but Defendant was not able to reach
anyone. Mr. Lane described Defendant as “cordial,” and he, the victim, and
Defendant conversed between ten and fifteen minutes. Mr. Lane said that
the victim did not have any injuries to her face while she was in the store.
Mr. Lane later identified Defendant from a photographic lineup as the man
who left his store with the victim on December 27, 2006.

Officer Jason L. Smith, with the Metro Nashville Police Department,
stated that the victim was “crying and very afraid” when he arrived at the
residence on Riverwood Drive. Officer Smith observed a contusion on the
victim’s cheek which was bleeding. Based on the information provided by
the victim and Mr. Skaggs, Officer Smith drove to the jewelry store on
Gallatin Road. He located a van matching the victim’s description and
recorded the vehicle’s VIN, which he relayed to Detective Michael Windsor
with the Metro Police Department. On cross-examination, Officer Smith
acknowledged that on his incident report, he indicated that the victim had
sustained an “apparent minor injury.”

Detective Windsor interviewed the victim at the hospital. Detective
Windsor testified that the victim had a large amount of swelling around her
cheek and a small laceration in the middle of the swelling. Detective
Windsor identified the owner of the van parked near Mr. Lane’s jewelry
store through its VIN. Detective Windsor developed Defendant as a suspect
based on the information received from the vehicle’s owner. Detective
Windsor prepared a photographic line-up, and the victim identified
Defendant as the perpetrator.

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 Detective Windsor arrested Defendant on December 28, 2006.
Defendant was read his Miranda rights and executed a written waiver of
those rights. A redacted version of the videotape of Defendant’s interview
was played for the jury. Detective Windsor stated that he determined that
the outbound call made by the victim’s cell phone on December 27, 2006,
at 5:22 p.m. was made to Defendant’s home telephone number.

Moore I, 2010 WL 457493, at *1-3, slip. op. at 2-4.

Procedural Background

Prior to addressing Defendant’s challenge to the sufficiency of the evidence argument
in Moore I, we noted the problem with trial exhibit 6, which purported to be a VHS copy of
Defendant’s statement to police which contained redactions ordered by the trial court upon
motion of Defendant. However, the trial court did not order all of the redactions requested
by Defendant. Exhibit 6 was played for the jury. In Moore I we stated the following:

Before considering Defendant’s challenge to the sufficiency of the
convicting evidence, we observe that we were unable to review the redacted
videotape of Defendant’s statement to the police which was introduced as
Exhibit 6 at trial and played for the jury. The video tape would only play
in “fast forward” mode making it impossible to follow the interview. We
glean from the record that certain portions of Defendant’s statement,
primarily those concerning Defendant’s comments about his prior
convictions, imprisonment, and drug use, were redacted before the
videotape was introduced as an exhibit at trial. Defense counsel was aware
that there was a problem with the videotape as reflected in her motion filed
with this Court on December 31, 2008. Within this motion, defense counsel
informed this Court that when she attempted to view Exhibit 6 after trial,
she was unable to play back the recording, but she did not provide any
clarification as to the type of problem she encountered. Defense counsel
stated, however, that she was able to produce a viewable DVD copy of the
videotape containing the redacted version of Defendant’s statement.
Defense counsel explained that “[c]oncerned that this Court and the
Attorney General may face similar difficulties playing the VHS tape, [she
was] seeking to have the trial court certify the DVD as a supplemental
exhibit to the record in this case, pursuant to T.R.A.P. 24(e).” There is no
indication, however, that defense counsel followed through with this
intention. In her brief, defense counsel said that she was unable to include

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 the DVD in the record on appeal because the State refused to stipulate to the
accuracy of the DVD.

Moore I, 2010 WL 457493, at *4, slip. op. at 5.

After concluding in Moore I that the evidence was sufficient to sustain the conviction
of carjacking, this Court addressed the evidentiary issues raised by Defendant, including the
redaction issue related to Exhibit 6. Defendant’s basis for objecting to certain portions of the
statement that were not redacted was that the unredacted portions were not relevant. We
summarized the redaction issue as follows in Moore I:

A. Redactments from Videotaped Statement

Defendant argues that the trial court erred in not redacting certain
comments from his videotaped statement which he made about his wife
during the interview. Defendant contends that such statements were not
relevant to a material issue at trial and were prejudicial because they cast
him in a bad light before the jury.

The trial court conducted a pre-trial hearing concerning Defendant’s
request for redactions, and the State agreed to redact Defendant’s comments
about his prior criminal history and his use of drugs, and Detective
Windsor’s comments about the potential charges Defendant was facing.

....

After further discussion, the trial court stated that it would make
a final ruling on the day of trial but it does not appear from the record
that the trial court ruled on Defendant’s motion. The State introduced
Defendant’s redacted videotaped statement during Detective Windsor’s
direct examination as Exhibit 6 without further objection by
Defendant. Prior to playing the videotape for the jury, the State
requested a bench conference in the presence but out of the hearing of
the jury which was not transcribed. The videotape was then played,
again without further objection by Defendant.

....

. . . it does not appear that the trial court made a definitive ruling on the
admissibility of the challenged statements before the videotape of

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 Defendant’s redacted statement was played for the jury, nor does the record
indicate that Defendant renewed his objection prior to the playing of the
videotape to the jury. Once a trial court “makes a definitive ruling on the
record admitting or excluding evidence, either at or before trial, a party need
not renew an objection or offer of proof to preserve a claim of error for
appeal.” Tenn. R. Evid. 103(a)(2). As this Court has cautioned, however,
“where the ‘issues are only tentatively suggested or the record only partially
and incompletely developed in connection with a motion in limine, . . .
[c]ounsel necessarily take some calculated risks in not renewing
objections.[’]” State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim. App. 2001)
(quoting State v. McGhee, 746 S.W.2d 460, 462 (Tenn. 1998)); see also
Tenn. R. App. P. 36 (a) (providing that “[n]othing in this rule shall be
construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent
or nullify the harmful effect of an error”). Also hindering our review is the
fact that we do not have a reviewable copy of the redacted version of
Defendant’s statement to the police, and we, therefore, do not know which
portions were redacted and which were not. When the record is incomplete
on an issue or does not contain the proceedings relevant to an issue, this
court is precluded from considering the issue. Tenn. R. App. P. 13(c);
Miller, 737 S.W.2d at 558; State v. [Griffith], 649 S.W.2d 9, 10 (Tenn.
Crim. App. 1982); State v. Hoosier, 631 S.W.2d 474, 476 (Tenn. Crim.
App. 1982). Moreover, because the record does not clearly establish what
occurred in the trial court, Defendant may not find relief under a plain error
analysis. Tenn. R. App. P. 36(b); State v. Adkisson, 899 S.W.2d 626, 641-
42 (Tenn. Crim. App. 1994). Based on the foregoing, we conclude that
Defendant has waived appellate review of this issue and is not entitled to
relief.

Moore I, 2010 WL 457493, at *5-7, slip. op. at 7-9 (emphasis added).

Procedural Background After Moore I was Filed

Defendant filed a timely motion to rehear, which was denied. Subsequently,
Defendant filed his application for permission to appeal to the Tennessee Supreme Court.
As noted above, Defendant presented only one issue in his Rule 11 application, which is set
forth herein as stated in his application:

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 QUESTION PRESENTED FOR REVIEW

I

In fulfilling the demands of Rule 24(a) of the Tennessee Rules of Appellate
Procedure, do parties seeking appellate review have a duty to ensure that
audio-visual recordings included in the record are compatible with the
playback devices used by the appellate Courts?

Interestingly, Defendant noted in his Rule 11 application that,

The defendant recognizes that the issue now presented could have been
avoided had defense counsel successfully supplemented that appellate
record with the DVD recording she had made from the problematic
videotape. However, [the defendant] implores this Court to clarify the
duties imposed by T.R.A.P. 24(a) in such circumstances.

Attached to, and in support of, Defendant’s Rule 11 application is the Affidavit of
Brad Freeman, which affidavit states:

AFFIDAVIT

STATE OF TENNESSEE ]

COUNTY OF DAVIDSON ]

Personally appeared before me the undersigned, a Notary

Public, in and for said County and State, Brad Freeman, who having been

duly sworn according to law does make oath as follows:

1. I am an Information Systems Application Analyst

employed by the Metropolitan Davidson County General Sessions Court.

2. In December, 2008, I was contacted by Assistant Public

Defender Emma Tennent, who needed help with a video tape that had been

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played during a trial, but which she was unable to review on the VCR

equipment in her office.

3. I examined the video tape, and found that the VCR Tape

had been played back many times, which will cause the tape to play back

poorly over time. Such tapes require play-back equipment with “auto-

tracking” to be viewed correctly. To my knowledge, the technology for

auto-tracking is a standard feature on most VCR’s produced after 2006.

The Davidson County Criminal Court courtrooms were equipped with auto-

tracking VCR players when the A.A. Birch Building opened in 2006.

Because the tape cannot be viewed on a VCR player that lacks the auto-

tracking feature, I had to convert the VCR format tape video onto a DVD

format, thus allowing the video to be seen correctly.

4. After informing Ms. Tennent of the issue, I recorded the

video tape onto a DVD. To make this copy, I used standard, “off the shelf”

recording equipment/software available to me in my office.

5. I returned the VCR Tape and DVD to Ms. Tennent in

December, 2008.

FURTHER AFFIANT SAITH NOT.

/s/ Brad Freeman
Brad Freeman

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 Sworn to and subscribed before me this the 22 nd day of
February, 2010.

/s/ Jenna B. Young
NOTARY PUBLIC

My Commission Expires: 5/22/10

The record indicates that the DVD was not certified by the trial court as a substitute
for Exhibit 6. The record also indicates no change in the District Attorney General’s refusal
to agree to certification of the DVD as a supplemental trial exhibit. Tennessee Rule of
Appellate Procedure 24(e) provides that “[a]ny differences regarding whether the record
accurately discloses what occurred in the trial court shall be submitted to and settled by the
trial court regardless of whether the record has been transmitted to the appellate court.” The
Supreme Court in this case clearly relied upon another part of Rule 24(e) to order
supplementation of the record with the DVD which had been prepared at the sole direction
of defense counsel. That provision states that “[i]f necessary, the appellate or trial court may
direct that a supplemental record be certified and transmitted.”

At the conclusion of his Rule 11 application, and arguably submitted as an alternative
ground for relief, Defendant asserted that,

In State v. Byington, 284 S.W.3d 220, 223-224 (Tenn. 2009), this
Court ruled that when there is a defect in the record that renders an
appellate court unable to consider matters that were considered by the trial
court, the appellate court has the authority, pursuant to both T.R.A.P. 24 and
T.C.A. § 27-1-128, to order supplementation of the record on remand to the
trial court for further proceedings to correct such a deficiency. The
defendant thus respectfully suggests that a remedy short of deeming an
appellate issue waived was available to the Court of Criminal Appeals upon
its discovery that it was unable to review the tape. Indeed, the Court of
Criminal Appeals’ holding is inconsistent with Byington to the extent that
he [sic] fails to recognize the authority of the appellate courts to reach down
and remedy any irregularities or deficiencies in the content of appellate
records. Accordingly, the defendant respectfully asks that, in order to
secure uniformity of decision and settlement of an important question of
law, this Court grant his application and review the Court of Criminal
Appeals’ decision pursuant to Rule 11(a)(1) and (2), T.R.A.P.

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 The Tennessee Supreme Court entered the following order related to Defendant’s
Rule 11 application:

ORDER

Upon consideration of the application for permission to appeal of
Larry Edward Moore and the record before us, this Court has determined
that the videotape admitted as trial exhibit 6 and included in the record on
appeal is now defective and unavailable for review. Therefore, in
accordance with Tennessee Rule of Appellate Procedure 24 and this Court’s
decision in State v. Byington, 284 S.W.3d 220 (Tenn. 2009), the defendant
is hereby ordered to supplement the record on appeal with a non-defective
DVD version of exhibit 6. The supplemental record shall be filed no later
than November 8, 2010.

Furthermore, the application for permission to appeal of Larry
Edward Moore is granted, and this case is remanded to the Court of
Criminal Appeals for reconsideration in light of the supplemental record.
Specifically, the Court of Criminal Appeals shall review the non-defective
version of exhibit 6 and re-consider on the merits Mr. Moore’s argument
that the trial court erred in not redacting from exhibit 6 certain portions of
Mr. Moore’s statement to the police.

It is so ORDERED.

PER CURIAM

II. ANALYSIS

We will now address on the merits, pursuant to the Supreme Court’s order,
Defendant’s issue regarding redaction of portions of his statement to the police based upon
his assertion that the statements are not relevant. In order to properly review this issue, we
find it necessary to meticulously set forth what transpired in the trial court regarding the
issues.

Defendant did not file any written motion regarding redaction of portions of
Defendant’s statement to the police. Attached to Defendant’s pre-trial motion to compel
production of the record of a 911 call is an e-mail from Defendant’s counsel to the prosecutor
referencing counsel’s previous requests for the 911 tape. That e-mail also includes the
following: “Also - I’m filing a suppression motion on Mr. Moore’s statement - a. [sic] if

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that’s denied, there will be redaction issues - have you decided what you [the prosecutor]
propose to redact?”

The first mention of the redaction issue during the trial court proceedings was made
by the prosecutor, after the hearing on Defendant’s motion to suppress the entire statement
on constitutional grounds. After the prosecutor brought to the trial court’s attention the
redaction issue, and the trial court announced that it would rule on Defendant’s suppression
motion on the morning of the trial, the following transpired:

[PROSECUTOR]: Judge, we do have - - because we don’t want the jury
to be sitting outside waiting, there are a number of
issues, I’m sure, that we’re going to disagree on
redactions. The State, of course, will redact all of the
statements about his prior criminal history that he goes
into. That’s absolutely no problem. The State will
also redact that portion of it, where he discusses his
drug use. But, aside from that, I don’t see that there -
- and I am sure the defendant has something else to
say, but if we could - - if they could just give me an
idea of what they’re talking about and let Your Honor
give me some type of instruction on what you think
should be - -

THE COURT: All right. Are there areas outside of the prior criminal
record and prior drug use that you’re seeking
redaction on?

In response to the State’s and the trial court’s inquiries as to what additional portions
of the statement that Defendant wanted to be redacted, Defendant’s attorneys gave the
following specifics:

(1) “There are other allegations of criminal activity. There are – there
is a period where they’re discussing [Defendant’s] relationship with
his wife, which has no business going before the jury.”

(2) “There is a discussion about the nature of his relationship with his
wife, and that, frankly, just . . . whether he gets along with his wife
or not is completely irrelevant to this incident.”

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 (3) “It’s a [ ] portion on our transcript page seventeen, where he’s,
basically, just complaining about his wife ‘she’s overbearing, I like
to party, I like to go out,’ things like that that we’re just asking that
they be taken out because they’re just, sort of, negative comments
that are just prejudicial. You know, ‘just stresses me out,’ and all of
this –”

(4) “At the end the detective is discussing that in his opinion the
evidence is overwhelming, that all these things – that it’s just an
open and shut case against [Defendant]. All of that opinion
discussion of the detective should be removed.”

(5) “And there is, also, a section where the detective is discussing, ‘well,
I could have charged you with aggravated’ robbery, but I’m not and
instead I’m charging you with this and that, and you’ve clearly done
this offense but maybe not this other offense.’ All of that
opinionated discussion of the detective and his charging decision
making should be removed.”

The State agreed to redact that portion of the statement where the detective said, in
the prosecutor’s words, “I could have charged you with this and I could have charged you
with that,” but declined to agree to redact the other portions of what the detective said. At
one point in the proceedings one of Defendant’s attorneys told the trial court “we can provide
this to the Court – I mean, we can do the obvious redactions and then make our arguments
at – you know, if you want.”

After the parties had completed their discussions and arguments of proposed
redactions, the trial court concluded the redaction issue “hearing” as follows:

THE COURT: What I can do is this: I mean, this is something
that can be dealt with on cross-examination
very easily. This matter comes up quite often.
And you can ask all of the right questions to
show that, you know, “that was just your
opinion, Detective, it was not based on fact,”
or whether - - I don’t know whether it was or
not, but that can be dealt with through cross-
examination.

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 In any event, I’m going to take a look at
this matter, make my ruling Monday
morning [day of trial] and we’ll go from
there.

Defendant has not directed our attention to any other place in the transcript where the
redaction issue was taken up by the trial court, and we have not found where the redaction
issue was even ruled upon by the trial court. Indeed, in his brief filed in this case (Defendant
did not file an additional brief on remand), Defendant states, “[a]t the conclusion of the pre-
trial hearing [on the redaction issue] the trial court took the matter under advisement. [ ] The
record does not reflect that the trial court expressly ruled on the defendant’s motion.”

Defendant was given ample opportunity to bring to the trial court’s attention the fact
that it had not ruled on the redaction issue. Just before the trial began on Monday, November
26, 2007, the following proceedings occurred:

THE COURT: All right. First of all, on Mr. Moore’s case
with respect to the motion to suppress filed and
argued last week, the Court took that matter
under advisement. After review of that
particular matter the Court is going to
respectfully deny the motion. The Court will
set forth in detail the reasons for the denial of
the motion in a written order that will be
prepared, but that’s how the Court has ruled on
that particular matter.

Are there other matters that need to be
taken up prior to bringing in the jury
panel?

[PROSECUTOR]: No, Your Honor. The State - - we’ve worked
with the Public Defender’s Office long
enough, especially these two, to know that they
know all the rules of evidence and everything
else; that they can’t bring in any prior bad acts
before they’ve been introduced, or anything
such as that, so I’m not concerned with - - they
know the rules and if there is something we’ll
respectfully ask for a jury-out.

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 THE COURT: Okay. I know that both sides are very versed
in the rules, so with respect to any matters that
come up a timely objection would be
appropriate.

All right. If we’re ready to go we can
bring in the jury panel. Are we ready?

[PROSECUTOR]: Yes, Your Honor.

[DEFENSE COUNSEL]: Yes, Your Honor.

After the jury was selected and sworn, the trial court took a recess for lunch. Upon
return after lunch and before the first witness was called to testify, the following transpired:

THE COURT: The jury received their lunches very late and
they just finished. They’re ready to come back.
Any matters that I need to take up prior to the
jury coming in?

[PROSECUTOR]: No, Your Honor. We’re going to have opening
statements, then, I anticipate prior to the victim
testifying that we’ll need a short jury-out.

THE COURT: Okay. That’s fine. Any matters from the
defense?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: All right. Bring them in.

Defendant’s statement, Exhibit 6, was played for the jury during Detective Windsor’s
testimony. Defendant’s counsel made no objection prior to, or during, the time the recording
was played. Afterward, the following transpired:

THE COURT: General Housel?

[PROSECUTOR]: Thank you, Judge. Your Honor, at this time
the State asks that the video of the interview
with the defendant be admitted into evidence.

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 THE COURT: All right. Any objection?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: All right. Exhibit No. 6.

In his motion for new trial, Defendant made the following grounds for relief regarding
the redaction issue:

2. Additionally, the Court erred by denying Mr. Moore’s request for
specific redactions in the video-and-audio recording of his
statements to the Detective. He requested removal of:

a. the Detective’s numerous characterizations of the
evidence as a strong, excellent case against Mr.
Moore. These remarks were inadmissible opinion,
prejudicial to Mr. Moore, and their presentation to the
jury was inconsistent to the Tennessee Rules of
Evidence, and Mr. Moore’s due process and fair trial
rights.

b. the portion of the conversation relating to Mr.
Moore’s unsatisfactory relationship with his wife.
Likewise, these remarks were inadmissible, irrelevant
and prejudicial, and should have been excluded.
T[en]n. R. Evid. 404(b), 403, 402.

As stated above, Defendant did not file, or move to file, a supplemental brief after the
Supreme Court entered its order on Defendant’s Tennessee Rule of Appellate Procedure 11
application. In his brief on appeal, he argues that the following specific portions of Exhibit
6 should have been redacted based upon his oral motion to redact on relevancy grounds.
Again, we note that Defendant has not provided any citation to the recording as to where
these objectionable portions of the statement are found. For specificity and clarity as to what
portions of the recording Defendant is referring to, we quote directly from his brief:

(1) “references the defendant made to his unsatisfactory relationship
with his wife.”

(2) “the portions of his [Defendant’s] statement wherein he [Defendant]
expressed his dissatisfaction with his wife.”

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 (3) “defendant decried his wife’s tendency to find fault with the fact that
he likes to go out on the town.”

(4) “He [Defendant] stated, ‘she’ll sit there and cry because I went to a
party.’”

(5) “He [Defendant] also complained about the way his wife remembers
his past faults and throws them back at him when they argue.”

(6) “He [Defendant] indicated that he is willing to be unfaithful in his
marriage.”

No written motion in limine was filed regarding the redaction issue. Defendant
concedes that the trial court never made a ruling on the redaction issue. The record is
“crystal clear” that Defendant never objected during the trial to the admission of Exhibit 6
based upon the redaction issue. Defendant did not renew presentation of the issue to the trial
court at the beginning of the trial proceedings, or during presentation of evidence. As we
noted in Moore I regarding these aspects of the redaction issue,

Once a trial court “makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.” Tenn.
R. Evid. 103(a)(2). As this Court has cautioned, however, “where the
‘issues are only tentatively suggested or the record only partially and
incompletely developed in connection with a motion in limine, . . . [c]ounsel
necessarily take some calculated risks in not renewing objections.[’]” State
v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim. App. 2001) (quoting State v.
McGhee, 746 S.W.2d 460, 462 (Tenn. 1998)); see also Tenn. R. App. P. 36
(a) (providing that “[n]othing in this rule shall be construed as requiring
relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful
effect of an error”).

Moore I, 2010 WL 457493, at *7, slip op. at 8-9.

Notwithstanding the above-cited authority in Moore I, the Supreme Court has ordered
this court to “review the non-defective version of exhibit 6 and re-consider on the merits
[Defendant’s] argument that the trial court erred in not redacting from exhibit 6 certain
portions of [Defendant’s] statement to the police.” We have reviewed the non-defective
version of Exhibit 6, which as noted above, is a DVD copy of the VHS tape recording of

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Defendant’s statement to police introduced into evidence without objection by Defendant.
The recording of Defendant’s interview by the police is approximately one hour long. There
is a digital time keeper on the recording which apparently displays the time in military time.
At 21:49 on the timer, Defendant made most of the statements which Defendant claims on
appeal should have been redacted, based upon the statements not being relevant. These
statements have been set forth above, and generally Defendant expressed dissatisfaction with
his wife. Later on in the interview Defendant indicated that he could be unfaithful to his
wife.

Tennessee Rule of Evidence 401 defines “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Tennessee
Rule of Evidence 402 states in part that “[e]vidence which is not relevant is not admissible.”

Defendant was charged with carjacking. Defendant’s wife was not a victim in the
incident; she was not an eyewitness to the incident; she was not a co-defendant. The police
did develop Defendant as a suspect based upon tracing Defendant’s wife as the owner of the
van that Defendant said was “broken down” at the jewelry store.

Discussing this issue in its brief, the State initially takes the position that the trial court
did not err by declining to redact the statements. Then the State recognizes that the trial court
felt the statements were “irrelevant but not prejudicial.” See Moore I, 2010 WL 457493, at
*1-3, slip op. at 8. Upon this concession, the State asserts this Court “must examine the
evidence in light of Tennessee Rule of Evidence 402, which states that ‘[e]vidence which is
not relevant is not admissible. . . .’ These portions of the statement were not relevant to any
material issue of this case, and thus were subject to exclusion under Rule 402.”

We agree with Defendant and the State that the statements which are the subject of
this issue are not relevant. They were thus not admissible evidence, and they should have
been redacted from the recording shown to the jury. It should not be surprising that multiple
statements, made by both a defendant and interviewers during an interrogation that lasts
about an hour, could be subject to redaction on relevancy (or other evidentiary) grounds. If
evidence is not relevant, the admissibility does not hinge upon whether the evidence is
prejudicial. If evidence is not relevant, the evidence is not admissible when a timely
objection to its relevance is made.

The prejudicial effect of inadmissible evidence is a factor when the inadmissible
evidence is erroneously allowed into evidence and a determination of whether the error is
harmless or not must be made. The State asserts the error in this case is harmless. Defendant
argues otherwise. We agree with the State.

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 There are three categories of trial court error: structural constitutuional error, non-
structural constitutional error, and non-constitutional error. State v. Rodriguez, 254 S.W.3d
361, 371 (Tenn. 2008). Obviously, a ruling on Defendant’s objection to certain evidence
based upon its non-relevance is an evidentiary ruling. Our Supreme Court has determined
that “an evidentiary ruling ordinarily does not rise to the level of a constitutional violation.”
State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003) (citing Crane v. Kentucky, 476 U.S. 683,
689, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986). The error in the case sub judice does not rise
to the level of a constitutional violation. Accordingly, “[w]here an error is not of a
constitutional variety, Tennessee law places the burden on the defendant who is seeking to
invalidate his or her conviction to demonstrate that the error ‘more probably than not affected
the judgment or would result in prejudice to the judicial process. Tenn. R. App. P. 36(b).’”
Rodriguez, 254 S.W.3d at 372.

Defendant argues in his brief that the erroneously admitted evidence was not harmless
error “when viewed together with the other errors in his case” and that the irrelevant
statements were highly prejudicial because they made Defendant “look like a jerk” and
“created a risk that the jury improperly convicted the defendant, at least in part, due to
negative impressions about him drawn from the manner in which he complained about his
marriage.” Regarding “other errors in the trial,” we note that this Court found no merit to
Defendant’s other issues on appeal in Moore I.

The total length of the objectionable and erroneously admitted statements, which were
included in the approximately one hour recording of Defendant’s statement, is about one
minute. The Supreme Court in Rodriguez stated,

When an appellate court undertakes a harmless error analysis its purpose is to
ascertain the actual basis for the jury’s verdict. [ ] An inquiry into harmless
error does not turn upon the existence of sufficient evidence to affirm a
conviction or even a belief that the jury’s verdict is correct. [ ] To the contrary,
the crucial consideration is what impact the error may reasonably be taken to
have had on the jury’s decision-making.

Rodriguez, at 372.

The evidence of Defendant’s guilt was overwhelming enough to be the basis for the
jury’s verdict. After reviewing the entire record, we conclude that the erroneously admitted
evidence had minimal, if any, impact upon the jury’s decision to find Defendant guilty of car
jacking. Defendant is not entitled to relief in this appeal.

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 CONCLUSION

The judgment of the conviction and sentencing in this case is affirmed.

_________________________________
THOMAS T. WOODALL, JUDGE

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