State of Tennessee v. Darnell Hubbard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 9, 2008

STATE OF TENNESSEE v. DARNELL HUBBARD

Direct Appeal from the Criminal Court for Shelby County
No. 06-08051 Lee V. Coffee, Judge

No. W2007-02482-CCA-R3-CD - Filed August 20, 2009

A Shelby County Criminal Court Jury convicted the appellant, Darnell Hubbard, of the first-degree
premeditated murder of his wife, and he was sentenced to life without the possibility of parole. On
appeal, the appellant contends that the trial court erred by admitting evidence of his prior acts of
violence against the victim. He also challenges the trial court’s admission of evidence relating to
an ex parte order of protection that the victim obtained against him and other statements the victim
made to her son and police. We conclude that the trial court erred in admitting hearsay statements
from the victim in violation of the appellant’s confrontation rights. However, in light of the
overwhelming evidence of the appellant’s guilt, the errors were harmless beyond a reasonable doubt.
Accordingly, we affirm the appellant’s conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE
R. MCMULLEN , JJ., joined.

James Hale, Memphis, Tennessee, for the appellant, Darnell Hubbard.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In the early morning hours of June 12, 2006, the appellant stabbed Lexie Hubbard twelve
times, killing her. At trial, the victim’s fifteen-year-old daughter, Ashley Jones, testified that she
arrived home around midnight and saw her eleven-year-old brother and the victim watching
television together in the dining room. The victim’s son and another daughter were asleep in their
bedrooms, and the appellant, “Ricky,” was in the victim’s bedroom. Jones went to bed. She was
awakened by a crashing sound, and she heard the victim say, “No, Ricky, no. Don’t do it; don’t do
it.”

Jones rushed to her mother’s bedroom and saw the appellant pull a nine-inch knife out of the
victim’s chest while the victim was “slouched” over on the floor. Jones yelled for her older brother,
Demarlon Davis, and told him the appellant had stabbed their mother. Jones ran to the kitchen,
obtained two knives, and gave them to Davis. The appellant emerged from the bedroom; swung the
knife he had used to stab the victim at Jones, Davis, and others in the house; and ordered them to
move. During the confrontation, the victim moved into Jones’ bedroom and locked the door. The
appellant grabbed the victim’s keys and ran outside, and Davis chased him. Jones initially ran after
Davis and the appellant but returned to the house because she was concerned about the victim.
Before paramedics arrived, the victim was breathing hard and was in and out of consciousness. A
firefighter at the scene informed Jones that the victim had died.

Jones testified that the victim wanted a divorce from the appellant so that she could marry
someone else. Three days before the stabbing, the appellant called and left messages on the victim’s
cellular telephone. The victim let Jones listen to one of the messages in which the appellant, in an
angry voice, threatened to kill the victim. Jones said that the appellant had threatened to “get” her
and her mother in the past. She said that the appellant often threatened and tried to fight with the
victim when Jones’ brothers were not around but that when the victim’s sons were present it “would
be a peaceful day.” Jones recalled that the victim called the police a few days before the stabbing
because the appellant was trying to get into their home. The police came but told the victim that the
appellant was allowed in the house because they were married.

Jones said that she occasionally cleaned her mother’s room and that a few times she found
a large knife from the kitchen knife set tucked under the mattress on the appellant’s side of the bed.
The knife the appellant used to kill the victim was one of the knives. Jones removed the knives she
found in the victim’s bedroom and hid them elsewhere because she was worried that the appellant
was going to kill the victim.

Jones testified that a couple of years before the victim’s death, she saw the appellant threaten
to kill the victim with a knife. On that occasion, the appellant waited until everyone in the house was
asleep. Jones awoke to see the appellant standing over the victim with a knife in his hand. The
appellant threatened to kill the victim, but the victim and her children convinced him to leave
instead. Jones also recalled another instance when she saw the appellant punch the victim, “busting”
her lip.

The victim’s son, Demarlon Davis, testified that on the night of the stabbing he heard the
appellant urging the victim to go to bed. He also heard the appellant tell the victim that if he could
not have her, nobody would. The victim told Davis that the appellant threatened to kill her and that
she did not feel right with the appellant in the house. Davis offered to force the appellant to leave,

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but the victim declined and said that she was going to sleep. Davis went to bed and was awakened
by his sister’s screams. Davis said that upon hearing the screams, he “ran down toward like in [his]
momma’s room and [his] momma’s whole gown was soaking wet with nothing but blood.” The
victim told him that she was “fixing to die” and that the appellant had stabbed her “a whole lot of
times.” Davis saw the appellant come out of the victim’s bedroom with a knife. The appellant was
“swinging” the knife at Davis and his daughter. Afterward, the appellant ran from the house. Davis
chased the appellant until the appellant was apprehended by police.

Dr. Bruce Levy, the Chief Medical Examiner for the State of Tennessee, described the
victim’s multiple stab wounds. He said that the victim had twelve sharp force injuries. Ten wounds
were described as “major stab wounds,” and one pierced the right ventricle of the heart. The victim
bled to death as the result of the injuries.

The victim’s sister, Leslie Adams, testified about the appellant’s relationship with the victim.
She said that the victim and the appellant fought frequently and often lived apart. According to
Adams, the victim moved to the home where she was living at the time of her death in order to get
away from the appellant. When the victim lived at her previous residence, she asked Adams to stay
with her at times when the appellant was at the residence because she was afraid of him. Adams
never saw the appellant hit the victim, but, on one occasion, she saw him try to stab her. She said
that on that occasion, the victim and appellant were arguing over something petty and the appellant
tried to stab the victim with a long kitchen knife. Adams said that she jumped between the appellant
and the victim to prevent the stabbing.

Adams also testified regarding an altercation involving the appellant and the victim at their
place of employment. Adams said the appellant had “whupped” the victim with a chair and poured
bleach on her. Adams said that after the altercation, the victim left work and went to Adams’ home.
The victim was on her way to “press charges” against the appellant. The victim was very upset and
was crying. The victim told Adams that “that n-----, well, . . . you know, said in a violent way that
he had done whupped on her jaw.” Adams said that the appellant had knocked the victim’s teeth out
and that she was “all bruised up.” The victim was “shaken” and said that she could not believe that
the appellant “flipped” and “did this.” Adams had heard the appellant threaten the victim many
times and had heard him tell her that if he could not have her, nobody would. The victim told
Adams that the only way the appellant would “get” her would be in her sleep.

Debora Coffman, a counselor with the Shelby County Citizen’s Dispute, testified that she met
with the victim on November 9, 2005, and helped the victim apply for an ex parte order of protection
against the appellant. The victim told Coffman that she was afraid of the appellant because he had
threatened to “get” her and because he had struck her with a chair and his fist in the past. Although
an ex parte order of protection was issued, the case was dismissed a couple of weeks later because
neither party showed up for the court hearing.

Memphis Police Department Sergeant Degrah Bell testified that she investigated the victim’s
domestic violence complaints against the appellant. In April 2002, the victim filled out a police

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report, alleging that the appellant had attacked her with a metal chair while she was working.
Sergeant Bell met with the victim. The victim was afraid and told Sergeant Bell that the appellant
had attacked her because she had refused to give him a ride home. After a prosecutor determined
that there was probable cause, Sergeant Bell prepared a warrant for aggravated assault against the
appellant. In 2004, Sergeant Bell spoke with the victim by telephone to investigate another police
report the victim had filed against the appellant alleging domestic violence. The victim told Sergeant
Bell that the appellant attacked her physically and threatened to kill her with a knife and some
bleach. The victim said that no further action was needed on the police report because the appellant
had moved out of the home and she felt safe.

II. Analysis

On appeal, the appellant argues that the trial court improperly admitted evidence of his prior
bad acts in violation of Tennessee Rule of Evidence 404(b) and that the trial court erred when it
allowed the state to introduce hearsay evidence of statements the victim made about the appellant
in violation of his confrontation rights. The appellant does not dispute that he is responsible for the
victim’s death, but he argues that the trial court’s errors in admitting the evidence of his prior acts
of violence and threats against the victim improperly inflamed the jury when it considered whether
the homicide was first or second degree murder.

A. Rule 404(b)

With respect to Tennessee Rule of Evidence 404(b), the appellant challenges the trial court’s
admission of Ashley Jones’ testimony that she found knives hidden in the victim’s bedroom, her
testimony regarding the prior incident when she saw the appellant threaten the victim with a knife,
and her testimony that she saw the appellant “punch” the victim. He also contends that the trial court
erred by allowing Leslie Adams to testify that she had seen him threaten the victim with a knife on
a previous occasion and that Adams should not have been allowed to testify about the injuries the
appellant inflicted upon the victim at work.

Generally, a party may not introduce evidence of an individual’s character or a particular
character trait in order to prove that the individual acted in conformity with that character or trait at
a certain time. Tenn. R. Evid. 404(a). In other words, a party may not use character evidence to
show that a person acted in a particular way because he or she had a propensity to do so. State v.
Moore, 6 S.W.3d 235, 239 (Tenn. 1999); State v. Parton, 694 S.W.2d 299, 304 (Tenn. 1985)
(observing that evidence of another crime is not admissible to show that the defendant is the kind
of person who would tend to commit the offense); State v. Tizard, 897 S.W.2d 732, 743 (Tenn.
Crim. App. 1994) (noting that character evidence may not be used to show propensity to act).
Similarly, evidence “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.” Tenn. R. Evid. 404(b).

However, such evidence may be admitted for other purposes if relevant to some matter
actually at issue in the case and if its probative value is not outweighed by the danger of its

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prejudicial effect. Tenn. R. Evid. 404(b); State v. Wyrick, 62 S.W.3d 751, 771 (Tenn. Crim. App.
2001). Issues to which such evidence may be relevant include identity, motive, common scheme or
plan, intent, or the rebuttal of accident or mistake defenses. Tenn. R. Evid. 404(b), Advisory
Comm’n Cmts.; Parton, 694 S.W.2d at 302. Admissibility of other crimes, wrongs, or acts is also
contingent upon the trial court finding by clear and convincing evidence that the prior crime, wrong,
or act was actually committed. Tenn. R. Evid. 404(b); Wyrick, 62 S.W.3d at 771. The jury may
consider evidence admitted under 404(b) as substantive evidence at trial. Wyrick, 62 S.W.3d at 771.

Before the trial court may permit evidence of a prior crime, wrong, or act, the following
procedures must be met:

(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.

Tenn. R. Evid. 404(b). Provided that the trial court has complied with these procedures, this court
will not overturn the trial court’s decision to admit or exclude evidence under Rule 404(b) absent
an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).

1. Ashley Jones’ Testimony

The appellant contends that the trial court erred in allowing Ashley Jones’ testimony about
finding knives in the victim’s bedroom and her testimony that she witnessed prior threats and acts
of violence the appellant committed against the victim. Initially, we note that the appellant failed
to raise any issue with respect to Ashley Jones’ testimony in his motion for new trial. Rule 3(e) of
the Tennessee Rules of Appellate Procedure specifically provides that

in all cases tried by a jury, no issue presented for review shall be
predicated upon error in the admission or exclusion of evidence, . . .
or other action committed or occurring during the trial of the case, .
. . unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived.

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Accordingly, the appellant has waived these issues.

We further conclude that the appellant is not entitled to plain error relief with respect to the
admission of the testimony of Ashley Jones. See Tenn. R. App. P. 36(b). “When necessary to do
substantial justice,” this court may address an “error that has affected the substantial rights of a party
at any time, even though the error was not raised in the motion for a new trial . . . .” Id. For an issue
to be considered plain error, each of the following five factors must be met:

(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached; (c)
a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and (e)
consideration of the error is “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (quoting Tenn. R. Crim. P
52(b)1) (footnotes omitted); see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the
Adkisson test for determining plain error). Furthermore, the “‘plain error’ must be of such a great
magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (quoting
United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).

The record reflects that the trial court held a jury-out hearing in compliance with Tennessee
Rule of Evidence 404(b) before admitting Jones’ testimony. The trial court concluded that Jones’
testimony concerning the knives Jones found hidden on the appellant’s side of the bed and her
testimony about the acts of violence and threats she witnessed were admissible to show
premeditation and intent, lack of accident or mistake, motive, and a complete picture of the events
surrounding the killing. The trial court further concluded that the probative value of the testimony
was not outweighed by any danger of unfair prejudice. We agree with the trial court’s assessment.
The admission of Jones’ testimony did not breach a clear and unequivocal rule of law that adversely
affected a substantial right of the appellant; therefore, the appellant is not entitled to plain error relief.

2. Leslie Adams’ Testimony

Next, the appellant contends that the trial court erred by allowing Leslie Adams’ testimony
about the prior incident when the appellant attempted to stab the victim with a knife. Here again,
the record reflects that the trial court complied with the procedural requirements of Rule 404(b). At
the conclusion of the jury-out hearing, the trial court ruled that Adams’ testimony was clear and
convincing evidence of the prior incident and that the testimony was admissible to show “intent,
knowledge, premeditation, . . . motive” and to show the “complete story” of violence and hostility

1
Effective July 1, 2009, Rule 52(b) of the Tennessee Rules of Criminal Procedure was deleted in its
entirety, and the plain error language was added to Rule 36(b) of the Tennessee Rules of Appellate Procedure.
See Tenn. R. App. P. 36(b) and Tenn. R. Crim. P. 52, Advisory Comm’n Cmts. (2009).

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that led to the killing. The trial court did not abuse its discretion when it admitted the testimony for
the stated purposes.

In his appellate brief, the appellant also challenges the trial court’s admission of Adams’
testimony about injuries the victim told her she received as the result of the appellant hitting her with
a chair at work. The appellant has waived the issue by failing to include it in his motion for new
trial. Tenn. R. App. P. 3(e). Moreover, we note that the appellant is not entitled to plain error relief
on the issue. The record supports the trial court’s determination that the victim’s statements to
Adams following the attack were excited utterances under Tennessee Rule of Evidence 803(2).

B. Hearsay and Confrontation

Next, the appellant contends that the trial court erred by allowing into evidence statements
the victim made to Debora Coffman, Demarlon Davis, and Sergeant Degrah Bell. He contends that
the admission of the statements violated hearsay rules and his constitutional right to confront the
witnesses against him. He argues that the trial court erroneously relied on State v. Ivy, 188 S.W.3d
132 (Tenn. 2006), and the forfeiture by wrongdoing hearsay exception because there is no proof in
the record that he killed the victim to procure her unavailability as a witness. The State concedes
that admission of the hearsay evidence was error but contends that the error was harmless beyond
a reasonable doubt.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Generally, hearsay statements are inadmissible unless they fall under one of the recognized
exceptions to the hearsay rule. Tenn. R. Evid. 802. The “forfeiture by wrongdoing” exception
allows the admission of a hearsay statement “against a party that has engaged in wrongdoing that was
intended to and did procure the unavailability of the declarant as a witness.” Tenn. R. Evid.
804(b)(6). “Even intentional misconduct, such as killing a witness, does not qualify unless done for
the purpose of procuring the witness’s unavailability.” Neil P. Cohen et al., Tennessee Law of
Evidence § 8.39[2][c] (LEXIS publishing, 5th ed. 2005). In determining whether hearsay is
admissible under the rule, the trial court must conduct a jury-out hearing and “find that a
preponderance of the evidence establishes 1) that the defendant was involved in or responsible for
procuring the unavailability of the declarant; and 2) that a defendant’s actions were intended, at least
in part, to procure the absence of the declarant.” Ivy, 188 S.W.3d at 147. For the exception to apply,
there must be “a showing that a defendant’s actions were intended, at least in part, to prevent a
witness from testifying.” State v. Brooks, 249 S.W.3d 323, 325 (Tenn. 2008).

The forfeiture by wrongdoing exception to an accused’s confrontation rights under the Sixth
Amendment to the United States Constitution likewise requires a showing that the defendant
“engaged in conduct designed to prevent the witness from testifying.” Giles v. California, ___ U.S.
___, 128 S. Ct. 2678, 2683 (2008) (emphasis in original). The Sixth Amendment to the Constitution
provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” In addition, article I, section 9 of the Tennessee Constitution provides

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that “in all criminal prosecutions, the accused has the right to . . . meet the witnesses face to face.”
“Although the language of the federal and state constitutional provisions is somewhat different, in
determining the rights of an accused under article I, section 9, [Tennessee courts] have traditionally
adopted and applied the standards enunciated by the United States Supreme Court.” State v.
Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); see also State v. Lewis, 235 S.W.3d 136, 144 (Tenn.
2007).

In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme Court
analyzed the Sixth Amendment right to confrontation and drew a distinction between the admission
of testimonial and nontestimonial hearsay. The Court explained that the admission of nontestimonial
hearsay is exempt from Confrontation Clause scrutiny; however, the “Sixth Amendment demands
. . . unavailability and a prior opportunity for cross-examination” for the admission of testimonial
hearsay. 541 U.S. at 68, 124 S. Ct. at 1374. Although the Court declined to define “testimonial”
comprehensively, it explained that the term “applies at a minimum to prior testimony . . . and to
police interrogations.” Id. Since Crawford, the Court has clarified that statements to police are
nontestimonial when “the primary purpose of the interrogation is to enable police assistance to meet
an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006).
However, statements made in the course of police interrogations under circumstances indicating that
there is no ongoing emergency and “that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution” are testimonial. Davis, 547 U.S.
at 822, 126 S. Ct. at 2274; see also Cannon, 254 S.W.3d at 302.

The Crawford court also acknowledged the forfeiture by wrongdoing doctrine as an exception
to an accused’s confrontation rights. The court explained that “[t]he rule of forfeiture by wrongdoing
(which we accept) extinguishes confrontation claims on essentially equitable grounds.” Crawford,
541 U.S. at 62, 124 S. Ct. at 1370. In other words, “if a witness is absent by [the defendant’s] own
wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of
that which he has kept away.” Reynolds v. United States, 98 U.S. 145, 158 (1879). “The rule has
its foundation in the maxim that no one shall be permitted to take advantage of his own wrong.” Id.
at 159.

The Court further explained the forfeiture by wrongdoing exception to the right of
confrontation in Giles v. California, ___ U.S. ___, 128 S. Ct. 2678, 2683 (2008). Three weeks
before the defendant shot her to death, the victim in Giles complained to police that Giles had
choked and threatened to kill her. Giles, 128 S. Ct. at 2681-82. The prosecution introduced
evidence of the prior domestic violence report in the murder trial to rebut Giles’ contention that he
shot the victim in self-defense. Id. Without considering whether Giles intended to prevent the
victim from testifying, the trial court and California appellate courts held that admission of the
testimony was proper under both a state law hearsay exception and under the forfeiture by
wrongdoing exception to the Confrontation Clause. The Supreme Court rejected the state court
analysis and held that the forfeiture by wrongdoing exception to the Confrontation Clause requires
a showing that the defendant intended to prevent the unavailable witness from testifying. Id. at 2682.

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 In reaching its decision, the Giles court provided some guidance with respect to the types of
evidence that may be available to establish a defendant’s intent to prevent testimony in cases
involving domestic violence. The court explained:

Acts of domestic violence often are intended to dissuade a victim
from resorting to outside help, and include conduct designed to
prevent testimony to police officers or cooperation in criminal
prosecutions. Where such an abusive relationship culminates in
murder, the evidence may support a finding that the crime expressed
the intent to isolate the victim and to stop her from reporting abuse to
the authorities or cooperating with a criminal prosecution – rendering
her prior statements admissible under the forfeiture doctrine. Earlier
abuse, or threats of abuse, intended to dissuade the victim from
resorting to outside help would be highly relevant to this inquiry, as
would evidence of ongoing criminal proceedings at which the victim
would have been expected to testify.

Id. at 2693.

In the present case, the appellant argues that there is no evidence in the record demonstrating
that he killed the victim to prevent her testimony and that the trial court erred by applying the
forfeiture by wrongdoing exception to the hearsay rule and Confrontation Clause. The State
concedes that it failed to prove by a preponderance of the evidence that the appellant killed the
victim to procure her unavailability as a witness and that the victim’s statements – both testimonial
and nontestimonial – were therefore not admissible under the forfeiture by wrongdoing exception
to the hearsay rule or Confrontation Clause. After carefully reviewing the record in this case, we
agree with the parties that the trial court erred by admitting statements the victim made to Coffman
to obtain the order of protection, statements the victim made to Davis, and the domestic violence
allegations the victim made to Sergeant Bell.

1. Coffman Testimony

The record reflects that the trial court initially ruled that Debora Coffman’s testimony
concerning statements the victim made while obtaining the temporary order of protection would be
inadmissible based on hearsay and confrontation concerns. However, without presenting any
evidence, the State convinced the court to change its ruling based on State v. Ivy, 188 S.W.3d 132
(Tenn. 2006), during a jury-out hearing after opening statements. In finding that the testimony
concerning the allegations the victim made in obtaining the temporary order of protection fit within
the forfeiture by wrongdoing exception, the court explained:

The Court finds that they are hearsay statements, but under 804(b)(6),
the Court further finds given the rulings of the Supreme Court in the
David Ivy case, that the Crawford and Maclin concerns are

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 extinguished by this defendant making his victim unavailable, not
necessarily for a murder prosecution, as every victim would be
unavailable for a murder prosecution, but also, unavailable for any
other actions that the victim might have pursued against this
defendant, and the Court will allow the contents in these statements
that were made by this alleged victim to Miss Coffman to be admitted
in the State’s case in chief as the Supreme Court has seen fit to rule
that those statements should be admissible under those circumstances.

The Court does find that they are relevant as indicated earlier
for the intent and knowledge and premeditation, to show all of the
circumstances surrounding the intent, to show, as the trial court ruled
in the David Ivy case, what the motive of this killing might have been,
and to paint an accurate picture of the hostility that existed in the
relationship between . . . Darnell Hubbard . . . and Lexie Hubbard, and
for all of those reasons, all of the facts and circumstances surrounding
that offense will be admissible for those limited purposes as indicated
earlier.

Statements the victim made about the appellant in order to obtain an order of protection
against him were testimonial in nature. Before applying the forfeiture by wrongdoing exception to
the Confrontation Clause and hearsay rule, the trial court was required to find by a preponderance of
the evidence that the appellant’s actions were intended, at least in part, to prevent the victim’s
testimony. Giles, __ U.S. ___, 128 S. Ct. at 2683; Brooks, 249 S.W.3d at 328; Ivy, 188 S.W.3d at
147. Although the court noted that the victim was unavailable for other actions that the victim might
have pursued against the appellant and that statements the victim made in obtaining the order of
protection were relevant to the appellant’s motive, the court made no finding with respect to the
appellant’s intent to prevent the victim from testifying. The case involving the ex parte order of
protection had been dismissed, and the State presented no evidence that the appellant’s actions were
designed to prevent the victim’s testimony. Accordingly, the victim’s statements to Coffman and the
affidavit the victim completed to obtain the order of protection should have been excluded.

2. Demarlon Davis

When Demarlon Davis began to testify that the victim told him that the appellant “constantly”
threatened to kill her when they were alone, the defense objected on hearsay grounds. The State
responded that the forfeiture by wrongdoing exception applied, and the court overruled the objection
based on its previous rulings. Davis was allowed to testify that the victim had multiple problems with
the appellant when they were alone and that the victim told him that the appellant threatened to kill
her. The trial court should have excluded the testimony as inadmissible hearsay. The forfeiture by
wrongdoing exception to the hearsay rule was inapplicable in the absence of proof that the appellant’s
actions were intended to prevent the victim’s testimony, and the State presented no proof establishing
the applicability of any other hearsay exception.

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 3. Sergeant Bell

Finally, the appellant challenges the admission of Sergeant Bell’s testimony concerning the
victim’s prior complaints to police. Sergeant Bell testified that the victim filed a police report in 2002
asserting that the appellant had attacked her with a metal chair, and a warrant charging the appellant
with aggravated assault was issued. She said that she talked to the victim again in 2004 when the
victim filed a report claiming that the appellant physically fought her, grabbed her by the neck, and
threatened to kill her with a knife and some bleach. The victim told Sergeant Bell that no further
action was needed on the 2004 report because the appellant was no longer living with her.

The trial court held a jury-out hearing in accordance with Rule 404(b) of the Tennessee Rules
of Evidence before admitting Sergeant Bell’s testimony. In concluding that Sergeant Bell’s testimony
was admissible, the court again cited State v. Ivy, 188 S.W.3d 132 (Tenn. 2006), and said that the
evidence was relevant “to give the jury a complete picture of the violence that [the appellant] visited
upon this victim and the threats that he has made, to show a motive for this killing, his threats having
been made previously that if he could not have Miss Hubbard, that no one would.” The court also
found that the testimony was admissible to show hostility that existed in the relationship, to
corroborate the testimony of other witnesses who had been questioned about whether prior incidents
between the appellant and victim had been reported to police, and as being probative of
premeditation. We conclude that the admission of Sergeant Bell’s testimony, without a finding that
the appellant was motivated, at least in part, to prevent the victim’s testimony, violated the hearsay
rules and the appellant’s confrontation rights.

C. Harmless Error Analysis

Having determined that the trial court erred by admitting the victim’s hearsay statements to
Debora Coffman, Demarlon Davis, and Sergeant Bell, we must now decide the effect of the errors.
In conducting harmless error analysis, our supreme court has identified three categories of errors: (1)
structural constitutional error; (2) non-structural constitutional error, and (3) non-constitutional error.
State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008); State v. Powers, 101 S.W.3d 383, 397 (Tenn.
2003); State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-
15 (Tenn. 1999).

Structural constitutional errors involve “defects in the trial mechanism” that “compromise the
integrity of the judicial process itself.” Rodriguez, 254 S.W.3d at 371. Structural constitutional
errors “have an impact upon ‘[t]he entire conduct of trial from beginning to end’” and require
automatic reversal. Momon v. State, 18 S.W.3d 152, 165 (Tenn. 1999) (quoting Arizona v.
Fulminante, 499 U.S. 279, 311, 111 S. Ct. 1246, 1265 (1991)). The denial of the right to counsel,
denial of the right to self-representation at trial, denial of the right to a jury trial, and racial
discrimination in grand jury selection are examples of structural constitutional errors. Rodriguez, 254
S.W.3d at 361; Momon, 18 S.W.3d at 165-66.

Constitutional errors that are not structural do not require automatic reversal. “However, the

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burden on the State to demonstrate that a non-structural constitutional error is harmless remains quite
stringent. The existence of a non-structural constitutional error requires reversal unless the State
demonstrates beyond a reasonable doubt that the error is harmless.” Rodriguez, 254 S.W.2d at 361.
The test to be applied is “whether it appears ‘beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.’” Id. (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn.
2002)).

As for non-constitutional errors, a defendant challenging a conviction has the burden of
demonstrating 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); 254 S.W.3d at 361. Appellate courts
consider the entire record in evaluating whether the error affected the outcome of the trial. Id. To
the extent that the trial court erred by admitting non-testimonial hearsay statements the victim made
to Davis, the appellant bears the burden of demonstrating that the error affected the outcome of the
trial or prejudiced the judicial process.

Like other Confrontation Clause errors, the trial court’s admission of the statements the victim
made to Coffman and Sergeant Bell are non-structural constitutional errors. Delaware v. Van Arsdall,
475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986); Cannon, 254 S.W.3d at 306. Thus, in order to
sustain the appellant’s conviction, the state has the burden of proving beyond a reasonable doubt that
the errors did not contribute to the appellant’s conviction. In our view, the State has met its burden.

First degree murder is the premeditated and intentional killing of another person. Tenn. Code
Ann. § 39-13-202(a)(1). A premeditated killing is one “done after the exercise of reflection and
judgment.” Tenn. Code Ann. § 39-13-202(d). Premeditation can be inferred from the manner and
circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Our
supreme court has delineated several circumstances from which a jury may infer premeditation,
including, but not limited to, declarations of the intent to kill, evidence of the procurement of a
weapon, the use of a deadly weapon upon an unarmed victim, the particular cruelty of the killing,
preparations before the killing for the purpose of concealing the crime, and calmness immediately
after the killing. Id.

Even without the erroneously admitted evidence of the victim’s prior statements, the record
in this case is replete with proof that the appellant intentionally and with premeditation killed the
victim. It is undisputed that the appellant killed the unarmed victim by stabbing her twelve times.
Jones, Davis, and Adams all heard the appellant threaten the victim many times. On numerous
occasions, Davis and Adams heard the appellant tell the victim that if he could not have her, nobody
would. Both Jones and Adams had seen the appellant use a knife to threaten the victim in the past,
and Jones had found large kitchen knives, including the knife used to kill the victim, hidden under
the appellant’s side of the mattress in the victim’s bedroom. Jones also testified that the victim
wanted to end the relationship with the appellant and described how the victim unsuccessfully sought
police help to keep the appellant out of her home a few days before the killing. Jones told the jury
about the angry message the appellant left, threatening to kill the victim just three days before the
stabbing. Hours before the appellant carried out the threat, Davis heard the appellant again tell the

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victim that if he could not have her, nobody would. In light of the overwhelming proof of the
appellant’s guilt, we are convinced that the erroneously admitted hearsay evidence had no impact on
the jury’s verdict. Accordingly, we affirm the appellant’s conviction.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

_______________________________
NORMA McGEE OGLE, JUDGE

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