State v. Kennedy

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1999

FILED
February 17, 1999
STATE OF TENNESSEE, )
) No. 02C01-9708-CR-00318
Cecil Crowson, Jr.
Appellee ) Appellate C ourt Clerk
) SHELBY COUNTY
vs. )
) Hon. Carolyn Wade Blackett, Judge
DARRELL R. KENNEDY, )
) (Theft of Property over $1000, two
Appellant ) counts; Aggravated Rape)

For the Appellant: For the Appellee:

Joseph S. Ozment John Knox Walkup
Attorney at Law Attorney General and Reporter
369 North Main Street
Memphis, TN 38103 Elizabeth T. Ryan
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493

William L. Gibbons
District Attorney General

Paul Goodman
Asst. District Attorney General
Criminal Justice Complex
Suite 301, 201 Poplar Avenue
Memphis, TN 38103

OPINION FILED:

AFFIRMED IN PART; VACATED AND DISMISSED IN PART

David G. Hayes
Judge
 OPINION

The appellant, Darrell R. Kennedy, was convicted by a jury in the Shelby

Criminal Court of two counts of theft of property over $1,0001 and one count of

aggravated rape. He was sentenced as a range II multiple offender to six year

sentences for each theft conviction and thirty-five years for the aggravated rape

conviction. The trial court ordered the sentences for aggravated rape and theft

under Count One to run consecutively. This effective forty-one year sentence was

then ordered to run concurrent with his Count Two theft conviction.2 In this appeal

as of right, the appellant contends:

I. The trial court’s admission of expert testimony concerning the
results of a DNA analysis violated his constitutional rights to
confrontation; and

II. The trial court’s admission of testimony relating to a vehicle
matching the description of the appellant’s vehicle at the situs of the
crimes during the week prior to the date of the instant offenses was
irrelevant and, thus, improperly admitted.

After a review of the record, the appellant’s convictions and sentences for

aggravated rape and Count One theft of property are affirmed. However, the

appellant’s remaining conviction and sentence for theft of property in Count Two is

constitutionally infirm under basic principles of double jeopardy. Accordingly, this

conviction and sentence must be vacated and dismissed.

1
The dates of the two thefts and the description of the property, “assorted jewelry,” are the
same under Counts One and Two. Both Counts of the indictment charge the same criminal
offense. Tenn. Code Ann. § 39-14-103. The only distinction between the two is that Count One
cha rges “did . . . k now ingly obta in prop erty” a nd C oun t Two char ges “did . . . k now ingly exercise
control over pro perty.”

The S tate, in its brief, ref ers to the th eft offen se cha rged un der Co unt On e as rob bery.
W hile the proo f at trial establish ed the ele men ts of agg ravated robbery, the State ch ose to
prosec ute the crim e as thef t.

2
The se tw o sen tenc es w ere a lso or dere d to ru n con sec utively to an ou tstan ding t wen ty-
five year sentence resulting from a previous second degree murder conviction for which the
app ellant was on pa role a t the tim e of th e inst ant o ffen ses . As a resu lt, the a ppe llant is curr ently
serving an effective sentence of sixty-six years.

2
 Background

On November 24, 1992, two days before the Thanksgiving holiday, twenty-

three year old Memphis State law student Ann Lightsey was working the 4:30 p.m.

to midnight shift at the law library. At midnight, Ms. Lightsey locked the doors to the

library and began her short journey home to her Georgian Woods apartment on

Union Avenue. After entering her parking “space” at the apartment complex, she

proceeded to her front door, leaving her purse and book bag in her vehicle due to

the late hour. While she was attempting to unlock the door to her apartment, she

heard footsteps approaching from behind. Someone then grabbed her hair, jerked

her head back, and placed a gun against her temple. The assailant warned Ms.

Lightsey not to scream; advising her that if she did, she would be shot. She was

then instructed to open the door.

Once the door was unlocked, the assailant pushed Ms. Lightsey into the

apartment and asked her where her roommate was. Ms. Lightsey responded that

her roommate was visiting her boyfriend and that she expected her to come home

“any minute.” Thinking that the assailant would be deterred, Ms. Lightsey added

that her roommate’s boyfriend would be accompanying her home. Unswayed, the

intruder asked for her purse and her money. In another attempt to persuade the

intruder to leave, Ms. Lightsey informed him that her purse was in her car; she

offered him her car keys and told him that he could have her car if he would “just

leave.” Ignoring the offer, the assailant led Ms. Lightsey to her bedroom, specifically

to her dresser where her jewelry box was located. With the gun still aimed at her

head, Ms. Lightsey was forced to go through her jewelry box, picking out only the

“real stuff -- gold,” as instructed by the assailant. Ms. Lightsey attempted to look at

the assailant’s reflection in the mirror over her dresser, however, he noticed her

looking at him and warned her not to look at him or he would shoot her. Once he

3
was satisfied that he had obtained all of the valuable jewelry from the box, he then

forced Ms. Lightsey to remove all of the jewelry from her person. The assailant took

“all the jewelry that [she] could find and all [her] rings and watches.” Ms. Lightsey

later reported that the intruder had taken approximately fifteen pieces of jewelry,

comprised of gold necklaces, rings, and two or three watches, valued at

approximately $2500.

With the gun still aimed at her head, Ms. Lightsey was then led into the living

room where the assailant forced her to lie on the floor with her face against the

carpet. The assailant again told her not to look at him. He instructed her to remove

her clothes. Frightened, Ms. Lightsey complied.

The assailant then forced his victim to perform oral sex upon him. Ms.

Lightsey again attempted to look at her assailant. This time she was able to see his

stomach and noticed that he “was a light colored black man.” She was unable to

observe his face because he was wearing a black or dark blue ski mask. The

assailant also wore heavy winter gloves.

The assailant then instructed Ms. Lightsey to lie on the floor on her back at

which time he penetrated her vagina with his penis. He asked her “if [she] had ever

had sex with a black man and if [she] had a boyfriend.” While still laying on the

floor, the victim was sexually penetrated a second time. Throughout the entire rape,

the assailant continuously kissed Ms. Lightsey on her cheek. When he ejaculated,

the assailant did so on a towel that he had previously laid beneath the victim. He

then wiped himself and the victim off with the towel. The assailant led Ms. Lightsey

into the bathroom where he told her to douche, “to wash yourself out.” In an effort to

avoid destroying potential evidence, Ms. Lightsey pretended to douche as ordered.

4
 The assailant again led Ms. Lightsey back into the living room where he

asked her if she was going to call the police. He informed her that he was going to

stay outside her apartment, watching to see if she called anyone. He unlocked the

kitchen door, took the “telephone off the hook,” and left the apartment. When the

appellant left, he took the towel with him. Several minutes after her assailant’s

departure, Ms. Lightsey ran from her apartment to neighboring apartments seeking

help. Eventually, a neighbor opened her apartment door and called “911.”

When Memphis Police Officers arrived, Ms. Lightsey described her assailant

as a fair-skinned black man, 5'10" to 6' tall, 160 to 175 pounds, and approximately

25-30 years old. She added that the masked intruder attempted to hide his height

because he would “hunch over.” At the subsequent trial, Ms. Lightsey testified that

the appellant had the same characteristic type slouch as her assailant.

Between 2:00 a.m. and 3:00 a.m. that morning, Ms. Lightsey was taken to the

Memphis Sexual Assault Resource Center where both vaginal and oral swabs were

taken to determine the presence of sperm. Margaret Aiken, a nurse at the Center,

testified that, although there was no trauma to the vaginal area, “moving sperm were

present [up]on microscopic examination.”

During the investigation of this case by Sergeant Bobby Napper, he

discovered that several days before the crimes against Ms. Lightsey, Karen

O’Kelley, a resident at the Georgian Woods Apartments, reported a suspicious

vehicle in the parking lot. Specifically, she reported that, when she arrived home

one evening, she observed a strange car in her parking place and she pulled directly

behind the vehicle, preventing it from leaving. The vehicle was an older model

Cadillac, bright blue in color, like a “blue M&M.” Mrs. O’Kelley observed a “black

man” sitting in the driver’s seat of the vehicle. Mrs. O’Kelley wrote down the

vehicle’s license plate number. The following day, Mrs. O’Kelley reported the

5
incident to apartment manager Shirley Moses Cutliff, who turned the information

over to the police.

In February 1993, the appellant was developed as a suspect in a jewelry

store robbery in the Oak Court Mall. The officer in charge of this investigation was

Sergeant George Maxwell. On February 12, 1993, with the assistance of Officers

Tom Arnold and Corey Hale, Sergeant Maxwell arrested the appellant at his 435

Webster Street residence.3 At the time of the arrest, the appellant was driving a

1978 bright blue Cadillac. The appellant’s girlfriend, Thelma Baker, provided law

enforcement officers consent to search the house. A search of the residence

uncovered several items of jewelry. At this point, the appellant was not a suspect in

the crimes against Ms. Lightsey.

During this same period, Sergeant Bobby Napper, the officer in charge of

investigating the rape of Ms. Lightsey, was temporarily assigned to the robbery

division. Sergeant Napper asked Sergeant Maxwell if he could look at the jewelry

seized from 435 Webster. On February 20, 1993, Sergeant Napper contacted Anne

Lightsey to examine items of jewelry recovered from the appellant’s residence. Ms.

Lightsey identified two items recovered as belonging to her. During a trip to Mexico,

Ms. Lightsey had purchased a distinctive light blue stone and, upon return from her

vacation, had had the stone mounted. Because of the irregular shape of the stone,

the setting, which was made by a friend’s father, was unusual in that the ring sat up

high on the finger and the stone “was loose and it would kind of jiggle.” Ms. Lightsey

testified that she was “absolutely positive” that the ring belonged to her. The second

ring was a gift from Ms. Lightsey’s mother. The ring was silver and dome shaped

with overlapping etching on the front. The ring, originally too small for her finger,

had been stretched to fit. Because the metal was weak where it had been

3
The robbery charge against the appellant was eventually dismissed because of
misidentification and confessions by the true perpetrators.

6
stretched, the ring had been twice broken and had been repaired. The ring

recovered from the appellant’s residence had the breaks in the same place.

After Ms. Lightsey’s identification of the jewelry, the appellant was arrested

for the rape and theft. Sergeant Napper requested that the appellant provide body

samples for DNA testing, however, the appellant refused. A search warrant was

subsequently obtained to collect hair, blood, and saliva samples from the appellant.

These samples along with the samples obtained from the victim at the Memphis

Sexual Assault Resource Center were ultimately sent to the FBI DNA Analysis Unit

in Washington, D.C. Special Agent John Quill led the team conducting the DNA

analysis in this case. The analysis revealed that, in all four locations observed, the

DNA from the vaginal specimen taken from Anne Lightsey matched the appellant.

Specifically, Special Agent Quill concluded that “the chance of an unrelated

individual at random in the population having a profile at all four of these locations

matching that of [the appellant] is one in nine million in the Black population, one in

two million in the Caucasian population, and one in one million in the Hispanic

population.” Thus, he concluded that the DNA profiles match those of the defendant

to a reasonable degree of scientific certainty.

In his defense, the appellant presented the testimony of Thelma Baker. Ms.

Baker testified that she owned a barber shop/boutique called “Bare Essence.” To

obtain merchandise for her business, she and the appellant often frequented jewelry

shows. She stated that she and the appellant had attended one such jewelry show

on January 30 through February 2, 1993, at the Cook Convention Center.

The appellant took the stand in his own defense. He adamantly denied

committing any of the offenses for which he was charged. When asked whether he

recognized the rings that Ms. Lightsey had identified as those taken from her

apartment, he stated that he had purchased the two rings at the Cook Convention

7
Center at two different jewelry shows. Specifically, he testified that he had

purchased the blue stone ring at the February 1993 jewelry show and the silver

dome ring at a jewelry show held prior to November 25, 1992, the date of the

present offenses. The appellant explained that he had “cut this ring to put on

[Baker’s] finger so she could fit her finger.” Despite this assertion and his claim that

he and his girlfriend retained receipts for all of their jewelry purchases, the appellant

was unable to produce any such receipt for either ring at trial. The appellant

admitted that he owned a bright blue 1978 Cadillac with a “peanut butter color”

custom top. Although he stated that he did not purchase the Cadillac until

December 1992, he conceded that he had driven the automobile on several

occasions prior to the purchase.

Based upon this evidence, the jury convicted the appellant of one count of

aggravated rape and two counts of theft of property over $1000.

I. Right to Confrontation

A. Background

Special Agent Quill, assigned to the DNA Analysis Unit of the FBI laboratory,

testified on behalf of the prosecution as an expert “in the field of DNA analysis and

identification.”4 He explained in detail the FBI’s procedures for testing and analyzing

DNA samples, as well as defining the quality controls in place at the FBI laboratory.

Special Agent Quill summarized the procedure 5 utilized by the FBI laboratory in

seven simple steps:

4
Age nt Qu ill’s tes timo ny rev ealed that h e is a tw enty-f our ye ar ve teran of the FBI a nd, in
198 9, wa s as sign ed to the D NA A nalys is Un it of the FBI L abo rator y. He h olds a Ba che lor’s
Degre e in biology an d a Ma ster of F orensic Scienc e Deg ree from Georg e W ashingto n Univer sity.
He has testified approximately 125 times as an expert in the field of DNA analysis and
identification.

5
The p rocedu re utilized by the F BI labora tory is know n as the R estriction F ragm ent Leng th
Polymorphism (RFLP) m ethod of DNA an alysis. Although the specifics of the procedure are
abbreviated in the present case, this court provided a thorough and comprehensive explanation of
the RFLP method in State v. Chapman , No. 01C01-9604-CC-00137 (Tenn. Crim. App. at
Nash ville, Sept. 30, 1 997), perm. to appeal denied, (Tenn. May 11, 1998).

8
 (1) DNA is extracted from the cellular material, e.g., the blood or
semen sample.

(2) The DNA is cut into fragment lengths.

(3) The fragments are placed in a gelatin-like substance, agarose, and
a negative charge is run through the gel, causing the DNA to migrate
to the positive side.

(4) The DNA is transferred from the gel to a nylon membrane.

(5) The membrane is placed into a solution with pieces of DNA that
give off light. The DNA fragments will migrate to a specific location of
interest, attaching themselves to that location on the membrane.

(6) The membrane is cleaned of any residual material and is placed
between two sensitive pieces of x-ray film.

(7) The film is developed and the supervising agent interprets, both
visually and with the assistance of a computer, the resulting autorads
developed from the DNA samples from the suspect and the forensic
sample taken from the victim.

Special Agent Quill testified that he was the agent assigned to the present

case and he personally allocated the laboratory number 30311060 to the samples

received. He conceded on cross-examination that he personally did not prepare

the samples for evaluation, rather the mechanical preparation of the autorads was

conducted by his laboratory technician, whose work he evaluated. Notwithstanding

the mechanical procedures performed by the technician, Special Agent Quill

testified that “[he] is responsible for the case,” “[he] determines what specimens will

be run,” and that “[he has] safeguards for each phase of the test that [he] review[s]

to insure that was done and done correctly.” Special Agent Quill also explained that

the procedure utilized by the FBI is self-validating, i.e., “if there are any other bands

in the cell line control, I will not interpret the work because something is wrong. The

probe is contaminated.”

The appellant, in his initial assignment of error, argues that his constitutional

guarantee of the right of confrontation was violated by admission into evidence of

the results of the DNA profile test through the testimony of Special Agent Quill, the

9
laboratory supervisor, instead of through the laboratory technician who actually

performed the mechanical aspects of the analysis procedure.

B. Analysis

The Constitution of the United States provides the accused in a criminal

prosecution the right “to be confronted with witnesses.” U.S. CONST . amend. VI.

The Tennessee Constitution provides the right “to meet witnesses face to face.”

TENN. CONST . art. I, § 9. The import of these guaranties is threefold:

(1) to have the witness testify under oath and subject to the penalties
for perjury;
(2) to enable the fact-finder to observe the manner or demeanor of the
witness and assess his or her credibility; and
(3) to have the witness available for cross-examination.

See Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38 (1980) (internal

quotation omitted); California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935

(1970); State v. Hughes, 713 S.W.2d 58 (Tenn. 1986). Notwithstanding these

objectives, courts have been quick to recognize that there are competing interests

that may warrant dispensing with confrontation at trial. Ohio v. Roberts, 448 U.S. at

63-64, 100 S.Ct. at 2537-38. In other words, the right of confrontation is not

absolute and must occasionally give way to considerations of public policy and

necessities of the case. See Jenkins v. State, 627 N.E.2d 789, 793 (Ind. 1993).

Thus, the United States Supreme Court has repeatedly refused to apply a literal

interpretation of the Confrontation Clause as doing so would bar the use of any out-

of-court statements (hearsay) when the declarant is unavailable, creating extreme

and unintended results. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3145

(1990); see also Sherman v. Scott, 62 F.3d 136, 140 (5th Cir. 1995), cert. denied,

516 U.S. 1180, 116 S.Ct. 1279 (1996).

The Tennessee Supreme Court has previously had occasion to address the

standards and criteria that must be met in order for out-of-court statements to satisfy

the Confrontation Clause of both the Sixth Amendment of the United States

10
Constitution and Article I, Section 9 of the Tennessee Constitution. See State v.

Armes, 607 S.W.2d 234, 236 (Tenn. 1980); State v. Henderson, 554 S.W.2d 117

(Tenn. 1977). In State v. Henderson, our supreme court recognized that valid

claims of an unconstitutional abridgement of the right to confront witnesses arise

when:

(1) the hearsay evidence is crucial to proving the State’s case, i.e., the
evidence is offered to prove an essential element of the crime or it
connects the defendant directly to the commission of the crime;

(2) there is no proof that the witness is unavailable, i.e., the State must
make a good faith effort to secure the presence of the person whose
statement is to be offered against the defendant; and

(3) the hearsay evidence is lacking its own indicia of reliability.

Henderson, 554 S.W.2d at 120. See also Armes, 607 S.W.2d at 237; State v.

Oody, 823 S.W.2d 554 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991);

State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989); State v. Arnold, 719

S.W.2d 543 (Tenn. Crim. App. 1986). Cf. Stewart v. Cowan, 528 F.2d 79 (6th Cir.

1976).

Notwithstanding the constraints imposed by the Henderson tripartite test, the

United States Supreme Court has held that a demonstration of availability (part 2 of

the Henderson test) is not always required. Ohio v. Roberts, 448 U.S. at 65, n. 7,

100 S.Ct. at 2538 n. 7; Sherman v. Scott, 62 F.3d at 140. Indeed, in White v.

Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 741 (1992), the Court held that Ohio v.

Roberts stands for the proposition that unavailability analysis is a necessary part of

the Confrontation Clause inquiry only when the challenged out-of-court statements

were made in the course of a prior judicial proceeding. Moreover, our supreme

court has also recognized that “firmly rooted exceptions to the hearsay rule do not

violate the Confrontation Clause.”6 See State v. Causby, 706 S.W.2d 628, 631

6
Tenn essee is not alone in providing th is excep tion to the crite ria deem ed nec essary to
satisfy the C onfron tation Clau se. See Bourjaily v. United States, 483 U.S. 171, 182-183, 107
S.Ct. 277 5, 2782- 83 (198 7); Ohio v. R oberts , 448 U.S . at 66, 100 S.Ct. at 25 39; United States v.
Roulette , 75 F.3d 418, 422 (8th Cir. 19 96), cert. denied, -- U.S.--, 11 7 S.Ct. 14 7 (1996 ); United
States v. Baker, 855 F.2 d 1353 , 1359 (8 th Cir. 198 8), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072

11
(Tenn. 1986); see also State v. Hester, No. 03C01-9704-CR-00144 (Tenn. Crim.

App. at Knoxville, June 4, 1998) (citing State v. Alley, No. 02C01-9405-CC-00100

(Tenn. Crim. App. at Jackson, June 18, 1997), perm. to appeal denied, (Tenn. Mar.

2, 1998); State v. Lillard, No. 01C01-9602-CC-00051 (Tenn. Crim. App. at Nashville,

Feb. 12, 1997)). The rationale for this principle is based upon the premise that

some forms of admissible hearsay rest upon such solid foundations that admission

of virtually any evidence within them comports with the right of confrontation. See

Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539; Causby, 706 S.W.2d at 631

(Tennessee Supreme Court holds that former testimony hearsay exception is such

firmly established rule and so inherently reliable that any such evidence necessarily

comports with right of confrontation.). 7 Indeed, statements admitted under a firmly

rooted hearsay exception are so inherently trustworthy that adversarial testing would

add little to their reliability. In other words, a hearsay exception will satisfy the

Confrontation Clause if the declarant’s truthfulness is so clear from the surrounding

circumstances that the test of cross-examination would be of marginal utility. Idaho

v. Wright, 497 U.S. at 820, 110 S.Ct. at 3149.

In the present case, the testimony of Special Agent Quill was clearly

admissible under Tenn. R. Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise.

Rule 703, Tenn. R. Evid., contemplates three possible sources from which an expert

may base his/her opinion: (1) information actually perceived by the expert; (2)

(1989). But see Barne s v. State , 704 So. 2d 487, 494-496 (Ala. Crim. App. 1997) (introduction of
lab report without requiring presence of technician who wrote report violated both Due Process
Clause and Co nfrontation Clause ); State v. Clark, 964 P.2d 766, 770 -772 (M ont.
1998)(introduction of lab report without requiring presence of technician who wrote report violated
both Confrontation Clause and D ue Process C lause).

7
In Causby, 706 S.W.2d at 631, the Tennessee Supreme Court held that the third prong
of the Henderson-Armes requirem ent for co mplying w ith the con frontation c lause, i.e., that the
evidence not be crucial or devastating, is not required in the case of well established hearsay
excep tion such as form er testim ony. Id. at 631, note 1 (citing Mancusi v. Stubbs, 408 U.S. 204,
92 S.Ct. 2308 (1972) and Ohio v. R oberts , 448 U.S. at 56, 100 S.Ct. at 2531).

12
information made known to the expert by others; and (3) information reasonably

relied upon by experts in the particular field. See Tenn. R. Evid. 703; see also NEIL

P. COHEN , ET . AL., TENNESSEE LAW OF EVIDENCE §§ 703.2, 703.3, 703.4 (3d ed.

1995).

Clearly, Rule 703 contemplates that inherently reliable information is

admissible to show the basis for an expert’s opinion, even if the information would

otherwise constitute inadmissible hearsay. See Tenn. R. Evid. 703. Indeed, it is

not uncommon for an expert witness’s opinion to be based on facts or data that are

not admissible into evidence, but are reliable. See NEIL P. COHEN ET AL .,

TENNESSEE LAW OF EVIDENCE § 703.4. In determining the reliability of the underlying

information, that underlying data must be such that experts in that field reasonably

rely on them in forming the same kinds of opinions or inferences that the expert in

this case did. Id. Thus, Tenn. R. Evid. 703 provides that an expert may base an

opinion upon clearly inadmissible hearsay, if the type of hearsay is one that would

be reasonably relied upon by experts in that situation.

In the case before us, the laboratory technician’s participation was limited to

the mechanically objective preparatory procedure required for Special Agent Quill’s

ultimate interpretation and analysis of the autoradiographs. Quill checked the

computations of the technician and verified that the technician would have followed

the standard laboratory procedures. See, e.g., Sherman v. Scott, 62 F.3d at 142.

Furthermore, Quill explained that the procedures are generally accepted within the

scientific community as reliable and that the resulting autoradiographs are self-

validating, i.e., if an error would have occurred during the preparatory phase, Quill

would not have been able to complete his analysis. Special Agent Quill was justified

in his reliance on the preparatory procedures performed by the laboratory

technician. The laboratory reports contain the particularized guaranties of

trustworthiness to keep them from violating a defendant’s rights under the

13
Confrontation Clause. Additionally, the defense was able to thoroughly cross-

examine Special Agent Quill as to the samples, procedures, safeguards, and results

reached in the present case. Special Agent Quill’s testimony was properly admitted

under Tenn. R. Evid. 703 and in no way violated the appellant’s right to

confrontation. Accord Gray v. State, No. 96-DP-00241-SCT (Miss. Aug. 6, 1998)

(defendant’s confrontation rights were not violated by admission of DNA expert’s

testimony even though some portions of testing were conducted by other persons in

expert’s laboratory; expert was individual who evaluated autoradiographs and did

sizing procedure); State v. Daughtry, 459 S.E.2d 747, 758-59 (N.C. 1995)

(testimony of Special Agent regarding results of DNA testing did not violate

defendant’s right to confrontation although another agent actually performed DNA

analysis under witness’ direct supervision; witness reviewed agent’s final reports,

rendering report inherently reliable and allowing testifying Agent to use it to form his

opinions); State v. Futrell, 436 S.E.2d 884, 892 (N.C. App. 1993); State v. Hutto,

481 S.E.2d 432, 434-35 (S.C. 1997) (confrontation clause does not forbid reliance at

trial by experts upon material prepared by others). Cf. United States v. Smith, 869

F.2d 348, 355 (7th Cir. 1989). Accordingly, we conclude that the admission of an

expert’s opinion based on hearsay evidence not in itself admissible does not violate

the Confrontation Clause of either the United States nor the Tennessee

Constitutions so long as the expert providing the opinion is available for cross-

examination.8

8
W e not e tha t ma ny sta te an d fed eral c ourts have adm itted te stim ony sim ilar or
analogous to that admitted in the case sub judice under a Confrontation Clause challenge based
upon the ground that the “business records” exception is such a firmly established and well-rooted
excep tion that no v iolation of the Confro ntation C lause wo uld occu r. See, e.g., United States v.
Ism oila, 100 F.3 d 380, 39 2 (5th Cir. 1 996), cert. denied, -- U.S. --, 11 7 S.Ct. 17 12 (199 7); Minner
v. Kerby, 30 F.3d 1311 (9th Cir. 1994) (introduction of chemist’s notes through supervisor not
violative of C onfron tation Clau se); United States v. Baker, 855 F.2d at 1360 (business records
exception, is firmly rooted hearsay exception to prevent violation of Confrontation Clause);
Reardon v. Manson, 806 F.2 d 39 (2d Cir. 1986 ), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903
(1987) (chemist report introduced through testimony of supervisor properly admitted sufficient
indicia of reliab ility); People v. Vega, 639 N.Y.S.2d 511, 513-514 (A.D. 3 Dept. 1996) (introduction
of technician’s notes under business records exception rendered technician’s testimony
unnec essary w here su pervisor a ctually analyzed sam ples); State v. Fo ntenette , No. 5 901 4 (O hio
App. Sept. 19, 1991) (testimony by laboratory supervisor regarding DNA profile properly admitted
under business record s exception did not violate Confrontation Clause).

Notw ithsta nding the a ppa rent a cce ptan ce of utilizing this h ears ay exc eptio n, this cour t is
reluctant to apply the bu siness records excep tion to the tes timony a t issue in the presen t case.

14
 II. Admissibility of Testimony

A. Background

The appellant argues that, because no evidence was ever introduced

connecting the blue Cadillac observed by Mrs. O’Kelley to the appellant’s blue

Cadillac, this testimony was irrelevant and prejudicial. Moreover, because the State

failed to have Mrs. O’Kelley identify the slip of paper upon which she transcribed the

license plate number, Mrs. Cutliff and Officer Maxwell were allowed to testify to

hearsay information. The appellant complains that this evidence was unduly

prejudicial to his case as it allowed the jury to speculate that he was in the

apartment complex prior to the rape and theft offenses. The appellant also contends

that the trial court erred by refusing to hold a jury out hearing to determine the

admissibility of this testimony.

B. Analysis

1. Jury-Out Hearing

During the trial, defense counsel continuously requested that the trial court

hold hearings on matters relative to this evidence out of the presence of the jury.

The trial court denied this request. Tenn. R. Evid. 104(c) provides that when the trial

court must resolve evidentiary matters a hearing is appropriate. The rule further

prescribes that a hearing held out of the presence of the jury is only mandated when

the questioned evidence (1) involves the admissibility of a confession; (2) involves

the testimony of the witness-accused; or (3) when required by the “interests of

justice.” See Tenn. R. Evid. 104(c); NEIL P. COHEN ET . AL., TENNESSEE LAW OF

EVIDENCE, § 104.3. Absent such circumstances, the question as to whether a

hearing out of the jury’s presence is required is within the discretion of the trial court.

See Advisory Commission Comments, Tenn. R. Evid. 104. As such, the trial court’s

Bus ines s rec ords are d eem ed re liable b eca use they a re pre pare d for othe r use s and are o nly
incidenta lly prepared f or purpo ses of litigation . See Henderson, 554 S.W.2d at 120 (quoting
People v. Hobson, 119 N.W.2d 581, 588 (Mich. 1963)). The DNA analysis prepared in the
presen t case w as for no other pu rpose b ut this litigation, calling in to ques tion the rep ort’s reliability
as a bu siness record. See Hester, No. 03C01-9704-CR-00144.

15
refusal to conduct a jury out hearing in the present case was not an abuse of the

court’s discretion.

2. Relevancy of Testimony Regarding Suspicious Vehicle

The determination of whether proffered evidence is relevant in accordance

with Tenn. R. Evid. 402 is left to the discretion of the trial judge, State v. Forbes, 918

S.W.2d 431, 449 (Tenn. Crim. App. 1995), as is the determination pursuant to Rule

403, Tenn. R. Evid., of whether the probative value of evidence is substantially

outweighed by the possibility of prejudice. State v. Burlison, 868 S.W.2d 713, 720-

721 (Tenn. Crim. App. 1993). See also State v. Williamson, 919 S.W.2d 69, 78

(Tenn. Crim. App. 1995). In making these decisions, the trial court must consider

the questions of fact that the jury will have to consider in determining the accused’s

guilt as well as other evidence that has been introduced during the course of the

trial. Williamson, 919 S.W.2d at 78.

Relevant evidence is any evidence having a tendency to make the existence

of any fact that is of consequence to the determination of an action more probable

or less probable than it would be without the evidence. Tenn. R. Evid. 401. In

certain circumstances, however, proffered evidence is logically relevant only if some

other fact exists. That is, the relevancy of an item of evidence depends upon the

existence of a particular preliminary fact. In such circumstances, the trial judge may

admit such evidence conditioned upon the subsequent introduction of proof

sufficient to support a finding of the particular preliminary fact. Tenn. R. Evid. 104(b).

See also Tenn. R. Evid. 901. If the subsequent proof fails to establish relevancy,

the conditionally admitted evidence must be stricken with an appropriate jury

instruction. See Advisory Commission Comments, Tenn. R. Evid. 104.

At trial, Mrs. O’Kelley, a resident at the Georgian Woods Apartments, testified

that, during the week prior to the offenses against Ms. Lightsey, she observed a

16
suspicious vehicle in her parking place outside of her apartment. She stated that

she saw a black male sitting in an unusual “blue M & M” color late model Cadillac.

She also stated that she wrote the license plate number of the car on a piece of

paper and turned it into the apartment manager, Mrs. Cutliff. Mrs. Cutliff identified

the piece of paper containing a license plate number that she gave to Officer

Maxwell of the Memphis Police Department.

The testimony of Mrs. O’Kelley regarding the presence of an unusual color

blue late model Cadillac occupied by a black male is only relevant to establish the

identity of the appellant and his preparation for the instant offenses if the proof

sufficiently connects the automobile and/or the identity of the driver to the appellant.

The trial court, apparently, permitted the introduction of this testimony conditioned

on the fact that the State would subsequently connect the suspicious automobile

observed by Mrs. O’Kelley to the automobile owned by the appellant. This

connection was never made.

At trial, Mrs. O’Kelley was unable to identify the driver of the blue Cadillac

parked in her parking place. Additionally, the State failed to ask her whether the

blue Cadillac observed at that time matched the blue Cadillac driven by the

appellant; never attempted to introduce the piece of paper upon which she wrote the

license plate number; and failed to asked her what license plate number she

obtained from the suspicious blue Cadillac. The State subsequently introduced the

piece of paper through the testimony of Mrs. Cutliff and Officer Maxwell for purposes

of identification only and, although Officer Maxwell testified that the license number

recorded on the paper belonged to the vehicle owned by the appellant, the State, as

noted by the trial court, failed to lay a proper foundation for this information. The

State never provided the proper foundation necessary to admit the paper into

evidence and the trial court neglected to rule on its ultimate admissibility. Thus, the

paper was improperly considered as substantive proof by the jury. See Tenn. R.

17
Evid. 901. Consequently, Mrs. Cutliff’s and Officer Maxwell’s testimony regarding

the license plate number constituted hearsay and should not have been admitted.

Tenn. R. Evid. 801 and 802. As such, the State failed to sufficiently connect the

conditionally admitted evidence, i.e., Mrs. O’Kelley’s testimony, with the appellant’s

automobile. Accordingly, the trial court should have stricken Mrs. O’Kelley’s

testimony from the record and instructed the jury to disregard the same.

Regardless of the trial court’s error in admitting the testimony, we conclude

that, considering the legitimate testimony regarding DNA evidence identifying within

a scientific certainty that the appellant was the perpetrator of the rape and the

appellant’s possession of the victim’s jewelry, the error in admitting testimony

regarding the suspicious blue car was harmless beyond a reasonable doubt and did

not affect the outcome of the trial. Tenn. R. Crim. P. 52(a). This issue is without

merit.

III. Double Jeopardy

The indictment, in the present case, charged the appellant with two counts of

theft of property over $1000. Specifically, Count One of the indictment charged the

appellant of unlawfully and knowingly obtaining property, to wit: jewelry valued over

$1000; and Count Two charged the appellant of unlawfully and knowingly exercising

control over property, to wit: jewelry valued of $1000. The jury found the appellant

guilty as to both counts. Upon review of the evidence and in order to find the

evidence sufficient to support a guilty verdict on Count Two, we can reach no other

conclusion than the same evidence was used to support both convictions.

The United States and Tennessee Constitutions protect the accused from

being twice placed in jeopardy for the same offense. U.S. CONST . amend. V; TENN.

CONST . Art. I, Sec. 10. As our supreme court has stated on many occasions, three

18
fundamental principles underlie the constitutional protections against double

jeopardy: (1) protection against a second prosecution after an acquittal; (2)

protection against a second prosecution after conviction; and (3) protection against

multiple punishments for the same offense. See State v. Lewis, 958 S.W.2d 736,

738 (Tenn. 1997); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996) (citing North

Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076 (1969)).

The instant case implicates the principle protecting against multiple

punishments for the same offense. The double jeopardy concerns in the present

case were not raised in the trial court. Although the general rule is that this court

does not consider issues that are not raised in the trial court, plain error is a proper

consideration for an appellate court whether properly assigned or not. State v. Hoyt,

928 S.W.2d 935, 946 (Tenn.Crim.App. 1995). Thus, we address the issue in order

to correct an error of constitutional dimension and to prevent manifest injustice.

Tenn. R. Crim. P. 52; Lewis, 958 S.W.2d at 738.

In 1989, all the prior forms of larceny, and all of the receiving and concealing

stolen property offenses were combined into a single offense known as “theft of

property.”9 State v. Hough, No. 03C01-9404-CR-00143 (Tenn. Crim. App. at

Knoxville, June 13, 1995). Indeed, the new offense of theft “constitutes [but] a

single offense embracing the separate offenses heretofore known as:

embezzlement, false pretense, fraudulent conversion, larceny, receiving/concealing

stolen property, and other similar offenses.” See Tenn. Code Ann. § 39-14-101

(emphasis added).

Clearly, from the plain language of the theft offenses, theft by obtaining and

theft by exercising control are the “same offense.” Moreover, from the facts

9
Under the pre-1989 Criminal Code, separate convictions for larceny and concealing
stolen pro perty arising f rom the sam e crim inal transa ction cou ld not stan d. See State v. Garland,
617 S.W .2d 176, 179 (Tenn. Crim . App. 1981).

19
presented at trial, the same evidence was used to support both counts. Thus, we

conclude that the two separate convictions regarding the theft of jewelry from the

victim’s apartment constitute double jeopardy. As the appellant may only be

convicted of one theft offense, the appellant’s conviction and sentence for Count

One: theft by obtaining is affirmed, however, the appellant’s conviction and sentence

for Count Two: theft by exercising control is vacated and dismissed.

Conclusion

For the foregoing reasons, the appellant’s convictions and sentences for

aggravated rape and Count One theft of property by obtaining are affirmed.

However, the appellant’s conviction and sentence in Count Two for theft by

exercising control is hereby dismissed and vacated as violative of constitutional

protections against double jeopardy.

____________________________________
DAVID G. HAYES, Judge

CONCUR:

__________________________________
JOE G. RILEY, Judge

__________________________________
JOHN EVERETT W ILLIAMS, Judge

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