State v. Alley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

NOVEMBER 1994 SESSION
FILED
June 18, 1997

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9405-CC-00100
)
) Weakley County
v. )
) Honorable David G. Hayes, Judge
)
JOSEPH T. ALLEY, ) (Sale of Cocaine)
)
Appellant. )

For the Appellant: For the Appellee:

Joseph P. Atnip Charles W. Burson
District Public Defender Attorney General of Tennessee
P.O. Box 734 and
Dresden, TN 38225 Rebecca L. Gundt
(AT TRIAL AND ON APPEAL) Assistant Attorney General of
Tennessee
Bill R. Barron 450 James Robertson Parkway
124 East Court Square Nashville, TN 37243-0493
Trenton, TN 38382
(ON APPEAL) Thomas A. Thomas
District Attorney General
and
James T. Cannon
Assistant District Attorney General
414 S. Fourth
P.O. Box 218
Union City, TN 38161-0218

OPINION FILED:_________________

AFFIRMED

Joseph M. Tipton
Judge
 OPINION

The defendant, Joseph T. Alley, appeals as of right from his conviction by

a jury in the Weakley County Circuit Court for the sale of less than one-half gram of

cocaine, a Class C felony. He received a four-year sentence in the Department of

Correction as a Range I, standard offender and a fifteen thousand dollar fine. The

defendant contends that (1) the evidence was insufficient to support his conviction and

(2) the trial court erred in admitting hearsay into evidence.

The events in question occurred on the afternoon of April 1, 1993. Ms.

Charlotte Edwards, an undercover drug buyer for the Twenty-Seventh Judicial District

Drug Task Force, testified that she called the defendant and arranged to buy crack

cocaine from him and James Bondurant. Ms. Edwards then met with Martin Police

Officers David Moore and Mike Shannon, who provided her with marked bills to make

the purchase and a transmitting device in order for them to monitor the transaction.

After locating the defendant and Bondurant, Ms. Edwards parked beside the

defendant's automobile. Bondurant got into Ms. Edwards' automobile and sold her one

rock of crack cocaine for fifty dollars.

When Ms. Edwards expressed an interest in purchasing additional rocks,

Bondurant left her automobile and talked to the defendant. Ms. Edwards testified that

she saw the defendant reach inside his jacket and pour the rocks into his hand.

Bondurant reached inside the automobile, picked up the rocks, and returned to Ms.

Edwards' automobile. Ms. Edwards gave Bondurant eighty dollars for the two rocks

and asked for her ten dollars in change that he owed her from the first sale. Bondurant

did not have the ten dollars, but obtained it from the defendant.

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 The defendant testified that he parked his automobile next to Ms. Edwards

and Bondurant got into her automobile. However, he denied having any involvement in

a transaction between Bondurant and Ms. Edwards. The defendant also denied

having a friendship with Ms. Edwards or receiving telephone calls from her.

In the defendant's first issue, he asserts that the evidence was insufficient

to support his conviction. He contends that had the hearsay statements by Bondurant

been excluded, there would not have been sufficient evidence to link him to the crime.

His argument is untenable. Our standard of review when the sufficiency of the

evidence is questioned on appeal is "whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard contemplates consideration

of all of the evidence submitted at trial and we may not limit the analysis to only the

evidence that is determined upon review to be admissible. See State v. Longstreet,

619 S.W.2d 97, 100-01 (Tenn. 1981). Under this review, the evidence amply supports

the defendant's conviction.

The defendant next contends that the trial court erred in allowing Ms.

Edwards to testify about her conversation with Bondurant and in admitting the tape

recording of the conversation. First, he asserts that this evidence constituted

inadmissible hearsay. We disagree. Under Rule 803(1.2)(E), Tenn. R. Evid., a

statement that is hearsay is allowed against a party when made "by a co-conspirator of

a party during the course of and in furtherance of the conspiracy." A conspiracy is

defined as a combination between two or more persons to do a criminal or unlawful act

or a lawful act by criminal or unlawful means. State v. Lequire, 634 S.W.2d 608, 612

(Tenn. Crim. App. 1981). If a conspiracy is shown to exist, the co-conspirator's

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statement is admissible even though no conspiracy has been formally charged. Id. at

612 n.1.

For admissibility purposes, the standard of proof required to show the

existence of the prerequisite conspiracy is proof by a preponderance of the evidence.

State v. Stamper, 863 S.W.2d 404, 406 (Tenn. 1993). The state only has to show an

implied understanding between the parties, not formal words or a written agreement, in

order to prove a conspiracy. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App.

1992). "The unlawful confederation may be established by circumstantial evidence

and the conduct of the parties in the execution of the criminal enterprises." Id.;

Randolph v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978).

The trial court in the present case determined that a conspiracy existed

between the defendant and Bondurant before allowing any hearsay evidence to be

presented to the jury. The court based its finding upon the conduct of the defendant in

that he arrived in the same automobile as Bondurant, was present during the

transaction, provided the drugs, and exchanged money with Ms. Edwards and

Bondurant. We believe that this constitutes adequate proof for the trial court to find by

a preponderance of the evidence that a conspiracy existed between the defendant and

the declarant. Thus, the evidence was admissible under Rule 803 (1.2)(E).

Second, the defendant asserts that his right to confront witnesses under

the Sixth Amendment to the United States Constitution and Article I, Section 9 of the

Tennessee Constitution was violated because Bondurant did not testify and was not

shown to be unavailable. He relies upon State v. Henderson, 554 S.W.2d 117 (Tenn.

1977), in which our supreme court dealt with the admission into evidence of toxicology

laboratory test reports through a witness other than the tester in order to prove the

identity of drugs in a drug prosecution. After adopting verbatim a substantial portion of

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this court's analysis in its opinion, the court held "that in the face of an objection by the

person charged, the State can not prove an essential element of a criminal offense by

test results introduced through a witness other than the one who conducted the tests."

Id. at 122.

In discussing the issue in Henderson, the supreme court noted that

although the hearsay rule and the right to confront witnesses protect similar values,

they are not wholly congruent in terms of all exceptions to the rule against hearsay

satisfying the Confrontation Clause. It stated that three criteria must be met in order to

satisfy federal constitutional confrontation rights:

(1) the evidence must not be crucial or devastating,

(2) the witness whose statement is to be offered must be shown
to be unavailable after the state's good faith effort to secure the
witness' presence, and

(3) the evidence offered under a hearsay exception must bear its
own indicia of reliability. Id. at 119-20.

In State v. Armes, 607 S.W.2d 234 (Tenn. 1980), a check forgery case, a

witness testified from memory about the fact that a then missing witness had testified

at the preliminary hearing that the defendant had given the missing witness checks to

cash and had received money from the proceeds. In determining whether or not the

defendant's confrontation rights had been violated, the supreme court confirmed the

"tripartite test" adopted in Henderson, construing such case to provide the criteria for

both the federal and state constitutional confrontational interests. Id. at 237. The court

concluded that none of the criteria had been met and reversed the conviction.

The defendant claims that the Henderson criteria have not been met in this

case. In this respect, we note that the record reflects that the state notified the

defendant that Bondurant was in jail and could be called for cross-examination at the

defendant's request. Thus, Bondurant's testimony was not shown to be unavailable.

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The specific question presented by the defendant is whether or not Henderson's

tripartite test applies to out-of-court statements by a co-conspirator made during the

course of and in furtherance of the conspiracy. We believe that it does not.

Historically, the Confrontation Clause has not barred the admission into

evidence of a statement that “falls within a firmly rooted hearsay exception.” Ohio v.

Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2538 (1980). These types of exceptions

are considered to be so inherently reliable that an independent inquiry into reliability, as

provided in Henderson, is unnecessary. See Roberts, 448 U.S. at 66, 100 S. Ct. at

2538-39. Such is the case for co-conspirator statements.

In United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121 (1986), the

Supreme Court held that the Confrontation Clause did not require a showing of

unavailability as a condition to admission of a nontestifying co-conspirator's out-of-

court statement that otherwise satisfied the requirements of the Federal Rules of

Evidence. In Bourjaily v. United States, 483 U.S. 171, 183, 107 S. Ct. 2775, 2782

(1987), the Court held "that the co-conspirator exception to the hearsay rule is firmly

enough rooted in our jurisprudence that . . . a court need not independently inquire into

the reliability of such statements." Thus, under the Sixth Amendment, no separate

inquiry into reliability need be made for co-conspirator statements.

Tennessee jurisprudence reflects a similar view. The use of co-conspirator

statements is firmly rooted as an exception to the hearsay rule of exclusion. See, e.g.,

Strady v. State, 45 Tenn. (Cold.) 300, 309 (1868); Owens v. State, 84 Tenn. (Lea) 1

(1885); Snowden v. State, 66 Tenn. (Baxt) 482 (1874); Sweat v. Rogers, 53 Tenn.

(Heisk.) 117, 120 (1871); see also Tenn. R. Evid. 803(1.2)(E), Advisory Commission

Comments (provision for co-conspirator hearsay exception embodies Tennessee

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common law). It is significant, as well, that our rules of evidence do not condition

admissibility of co-conspirator statements upon the unavailability of the declarant.

Compare Tenn. R. Evid. 803(1.2)(E) and 804. Most importantly, though, our supreme

court continues to allow the admission of co-conspirator statements in criminal cases,

viewing sufficient reliability to exist when a preponderance of the evidence shows that

the conspiracy exists and that the statement was made by a co-conspirator during the

course of and in furtherance of that conspiracy. See State v. Walker, 910 S.W.2d 381,

385-86 (Tenn. 1995), cert. denied, 117 S. Ct. 88 (1996); State v. Hutchison, 898

S.W.2d 161 (Tenn. 1994), cert. denied, 116 S. Ct. 137 (1995); State v. Stamper, 863

S.W.2d at 406. None of these cases indicate that witness unavailability or separate

reliability inquiries are needed.

In sum, we believe that the Henderson requirements were not meant to

apply, nor do they now, to those hearsay exceptions that are deeply rooted in our legal

history as being inherently reliable. Under these circumstances, the admission of

Bondurant’s co-conspirator statements did not violate the defendant’s right to

confrontation under the Sixth Amendment to the United States Constitution or Article I,

Section 9 of the Tennessee Constitution.

In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.

_______________________________
Joseph M. Tipton, Judge

CONCUR:

_________________________
John H. Peay, Judge

__________________________
Paul G. Summers, Judge

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