State v. Henderson

H7 Tennessee, Petitioner, STATE HENDERSON, Respondent.

James

Supreme Court of Tennessee. 9, 1977.

May Aug. 15, Rehearing

Petition Grunow, Gen., A. Atty.

Rоbert Asst. McLemore, Atty. Gen., Brooks Nashville, Tenn., petitioner. Chandler, Emmons, Smith, Edwart Witt Chandler, Memphis, for respondent. & COOPER, Chief Justice. granted

Certiorari this case to whether admission in evi- determine toxicology reports, laboratory dence through a witness other than those that tests, violated respondent’s performed right to di- confrontation. A Appeals Court of Criminal held that vided conviction, did, reversed the remand- and case for a new trial. ed the We affirm its action.

" Henry County The record shows that the 1975, Term, Jury, January, Grand two indictments James returned one, Mr. Henderson was Henderson. possessionof charged with LSD with intent manufacture, deliver, distribute, sell, sale of LSD. other indict- with charged pos- Mr. Henderson ment marijuana with the intent session manufacture, deliver, distribute, sell, marijuana. sale jury found Henderson Mr. On indictments, charged in the guilty punishment imprisonment assessed penitentiary for less than five the state years nor more than six years indictment, and imprisonment in LSD for not one nor penitentiary less than un- years on the conviction marijuana indictment. The der 118 the concur-

judge ordered sentences run ducted as procedure, normal and whether rently. results the were by ‘certified’ him. He that the replied reporting analysts worked Mr. It is uncontradicted record that supervision, his but that the tests had agent sold a Henderson substances not been conducted within eyesight. He predicate that were indictments confirmed the fact that the results had been by Henry County Jury. returned Grand by However, ‘certified’ the ‘certifica- After the substances were sent to purchase, carry tion’ only a rubber- Toxicology Laboratory in Mem- stamped signature under the statement, T Tennessee, testing. phis, The result of certify and that attest this document is the only the tests is the evidence in the record record it proper purports to be.’ There is substances Mr. that the Henderson sold the no indication that the results of the tests agent undercover were contraband. personally were verified by the certifier nor trial, time of the laboratory At the assist- that his certification he endorsed the сonducted ants who the tests to determine conclusions reached the reporting ana- the nature of the substances were on vaca- Compare, v. lysts. Kreck, 86 Wash.2d temporarily tion and were not available to 782, 112, 542 P.2d 784 (1975). In the testify. absence of these witnesses “These well come within the permitted the trial court the test results to so-called business records exception to the be introduced in evidence as an exhibit rule, hearsay codified under Tennessee law Stafford, David Dr. 24-714, but as T.C.A. § would Respondent objected director.1 in- the threshold only inquiry. The second and laboratory reports, troduction of the con- question is crucial whether the introduction reports tending violated the rule laboratory reports in such circum against hearsay ‍‌​​​​‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‌‌‌‌​‌​‌​‌​​‌‌‌‌‌‌‌‌‌​‍and violated his constitu- stances violatеs the federal constitutional right tional to confront the witnesses right of confrontation embodied in the against him. Amendment, Texas, Sixth Pointer v. 380 holding the trial was in judge 400, 1065, S.Ct. 13 L.Ed.2d 923] evidence, admitting reports error in (1965), right and the guaranteed every majority Court of Ap- Criminal 1, criminal defendant under article Section peals, opinion Judge authored by 9 of Tennessee Constitution ‘to meet the Daughtrey, following had the to say: witnesses face to face.’ generally, Phil Neil, 337, lips (6th F.2d 1971), Cir. reports clearly were hearsay, “The consti- 884, denied cert. 409 U.S. tuting as did out-of-court statements L.Ed.2d Lip United States 141] the truth of the matters offered scomb, (5th F.2d 1970), Cir. McCormick, therein. contained cert. denied 401 U.S. Paine, 1972); ed. Tennessee Law (1971).2 L.Ed.2d We conclude that (1974). of Evidence The basis violation has occurred in this case. judge which the trial deter- nevertheless minеd them to be admissible is not alto- “Initially conceded gether clear from the record. Dr. Stafford rule right and the whether the tests un- was asked were run the criminal defendant to confront the wit- supervision, whether der his were share nesses him common historical personally example, long testified he had Dr. Stafford held that the Business Rec- supervised independent had the tests and no applicable Act ords was not in criminal cases knowledge of the nature the substances test- because the constrictions of the Confronta- See, e.g., Lewis, People tion Clause. (1940), Mich. 293 N.W. criticized but jurisdictions gone 2. The cases from other have Gauthier, People Mich.App. followed ways questions on constitutional involv- (1971), 184 N.W.2d 488 overruled in Peo- ing the business record to the hear- Kirtdoll, ple v. 391 Mich. 217 N.W.2d 37 Binder, say generally, Hеarsay rule. See courts, Michigan Handbook

lift “Unfortunately, recognize the law confrontation roots, in that both among to be foremost confusion, cross-examination in a appears to be state of some a fair safeguards essential to approach because of the ad hoc principally has never been inter Clause United mandated States hearsay evidence in to bar all preted Court, also because the but example, dying dec trial. For applied only has been Clause States rule was hearsay exception laration Texas, last during the decade. Pointer v. law even the common be recognized Baker, Right to supra. generally The See adopted. Amendment the Sixth fore Confrontation, Rules, Hearsay and Due States, 146 Mattox v. United U.S. e.g., Sеe Process, (1974); Note, 6 Conn.L.Rev. 529 50, 140, 36 L.Ed. S.Ct. 917] [13 Interplay of Confrontation Clause Similarly, as the law of evidence (1892). Rule, (1975). Hearsay 29 Ark.L.Rev. 375 hearsay exceptions have other developed, guidelines have explicit No despite the ex constitutional muster passed Clause, been announced the United States Su- e.g., of the Confrontation istence subsequently of a deceased application Con- preme Court of the prior witness, Mattox v. United 156 as in (nor Clause by the Tennessee frontation 337, (1895). 39 237 S.Ct. L.Ed. 409] U.S. [15 I, in construing Court Supreme ‍‌​​​​‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‌‌‌‌​‌​‌​‌​​‌‌‌‌‌‌‌‌‌​‍Article Sec- State, 567, 393 Accord, v. 216 Tenn. Stubbs Constitution). the Tennessee tion 9 of (1965), approved in Mancusi v. 150 S.W.2d Nevertheless, from a close of the reading 2308, Stubbs, 204 33 408 S.Ct. U.S. [92 major confrontation cases decided (1972) (prior now re witness L.Ed.2d 293] Supreme Court United States we conclude country); out cf. siding permаnently criteria met in least three must be at State, (1873) Tenn. 522 and Hicks v. 65 Hall federal constitutional order to State, (Tenn.Crim.App. 490 174 S.W.2d v. rights: frontation state). residing out 1972) (prior witness “(1) implication the must By evidence hand, the United States “On the other ‘devastating.’ v. ‘crucial’nor Dutton be abundantly has it Court made 74, 210, Evans, U.S. 87 27 rules not cotermi- S.Ct. the two are [91 clear Evans, 74, 86 Dutton v. 400 U.S. (1972). nous. As the [91 L.Ed.2d 213] 210, Speaking (1970). 27 L.Ed.2d 213] S.Ct. put state has it: of a sister Green, Court in California v. for from thе various decisions that 1930, 26 155-56 L.Ed.2d S.Ct. U.S. [90 admissibility in evidence of business said: (1970), Mr. Justice White 489] depends upon the for purpose readily be conceded that While are If of- they they offered. are which and the Confrontation hearsay rules an essential element of the fered to protect generally designed Clause directly the defendant crime or connect values, thing quite it is a different similar crime, then the commission overlap complete is suggest that through persons having proved must Clause is of the personal knowledge element less than a codification nothing more or persons and such must connection excep the rules If, at in- historically com existed available cross-examination. tions never es decisions have law. Our person mon has producing stead indeed, congruence; we a such tablished knowledge, the state relies on once found a violation have person re- made documents though values even confrontation testimony, the defendant has been corded issue were admitted under statements to confront the witnesses denied hearsay excep recognized arguably Matousek, 390 U.S. 719 Page, See Barber tion. 178 N.W.2d Minn. 1318, 20 255]; Pointer v. L.Ed.2d S.Ct. [88 make “(2) good must faith The State Texas, S.Ct. [85 presence secure the effort to L.Ed.2d 923]. to be offered whose statement absent witnesses were employees of the defendant. absence such a State, the very party now prosecuting showing, the cannot deemed witness ‘un- this defendant and offering against him purposes available’ which consisted of certain items Page, Barber Clause. 390 U.S. 724- bought allegedly by another employ- L.Ed.2d 255] ee.) Green, also California 399 U.S. “Furthermore, wholly fails 1930, 26 L.Ed.2d to meet the first requirements. Clear- Stubbs, supra; compare Mancusi v. ly the reports evidence, contain ‘crucial’ State, evi- supra, Hicks v. 178-79. dence which constitutes an ‘essential ele- “(3) The evidence offered under hear- i.e., crime,’ ment of the identity of bear its say own ‘indicia of question material as contraband. Yet we Evans, reliability.’ suрra, Dutton v. reported can find no cases in very S.Ct. 210]. U.S.] the identity of evidence as contraband has superficially, “At least the evidence be- been established hearsay, the possi- fore us satisfies the last of these three ble several involving cases the From the record criteria. it that analysis chemical of alcohol. All of these perform the were well-trained chemists Pointer, prеdate Barber, Green, cases and they and the tests involved that had no forty Dutton some years. Common- falsify reports. motive apparent the Yet Stoler, wealth v. Mass. also be noted that 156 N.E. 71 must the records in case, they may (1927); this the techni- Torello, 103 Conn. requirements cal of T.C.A. ‍‌​​​​‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‌‌‌‌​‌​‌​‌​​‌‌‌‌‌‌‌‌‌​‍do not (1925); A. 429 Slavski, Commonwealth v. mold, classic fit the business records i.e. 245 Mass. 140 N.E. 465 Bracey hospital Entries in ‘shop books’ records. Commоnwealth, 119 Va. 89 S.E. 144 such records are considered reliable because Furthermore, all of them involved they are made in the course of business and state statutes which explicitly authorized routinely upon by relied in carry- are others procedures certification in lieu actual the ing on the affairs of business. the testimony by the person conducting the records, hospital personnel case of medical analysis. By contrast, chemical no such and death decisions a result make life as statutory authorization involving proof of reports and record entries. docu- Such provided controlled substances under the records,’ true ments are ‘business and their Code. p. Tennessee infra. from fact stems the that trustworthiness ‘prepared “Addressing the they are for other use and last of thе only criteria, three incidentally pertinent litigation.’ found we fail to find evidence that the made Hobson, People Mich. ‘good what could called a faith effort’ to By N.W.2d contrast presence secure the absent witnesses. realistically records here cannot said to As the United States Court noted prepared any reason other have been v. Page: in Barber potential litigаtion than value. acknowledged It that various Therefore, they produced at trial and commentators courts have heretofore testimony, and are of- in lieu of that assumed the mere of a absence wit- single damaging most fered to jurisdiction ness from was sufficient defendant, fall into fact ground dispensing with confrontation parte ex affida- category dreaded theory ‘it is impossible on thе that just was to prevent vit. use of attendance, his compel the proc- because that the Confrontation Clause documents is of ess of the no force with- adopted. was Mattox United jurisdiction, out and party desir- (Moreover, U.S. at 337]. ing helpless’ his is therefore unaware at the time we are not reports, the tests made the performed Wigmore, 1940). Kreck, accuracy supra, problеm may have been treats some- Whatever time, it is clear that similar to the theory at one what one before us with an cooperation increased result. There opposite time the court was asked present admissibility be- rule on the under the themselves and Uni- the States between Business Records Act of laboratory the Federal form Govern- the States tween report of a bloоd test any offered evidence in largely deprived it has ment case, the having a murder test been con- tinuing validity in the criminal law. determine presence ducted to or ab- (footnotes at 723-4 chloroform in sample sence of a blood taken omitted). deceased from the victim. The court held in in Barber was needed witness although the chemist ran the test prosecution, but was incar- Oklahoma business, country was out of prison Texas federal in a cerated could be through results introduced the tes- Court’s Under of trial. time timony supervisor. direct This wit- prosecutor Oklahoma could ruling, if the person- ness ‘testified that while he did not such a ‘unavailability’ rely on test, ally conduct the did he confer with good faith effort to ob- absent a situation analyst] in his supervisory capacity [the of the witness at presеnce tain verified the test results.’ 542 P.2d at prosecutor case be- surely then added). (emphasis us has run afoul the constitutional fore points of “Several distinction between of the Confrontation Clause. requirements appear obvious, case and this Kreck wholly absence the witnesses’ Here three-fold terms of the constitutional crite- was problem in nature and the temporary First, the developed above. ria evidence at easily susceptible of correction clearly and was relevant only in Kreck to issue generally, a continuance. means of by of committing issue of means the al- 1972). McCormick, homicide, and did not leged establish an setting down for first case was The crime, of the essential element as does the for had been under indictment defendant of the evidеnce as contraband in identity (60) there sixty days, few Second, us. the case before the court’s (conveniently enough) pending a mo- in reliability of Kreck was determination continuance, previously by filed for a tion undoubtedly personal by influenced ver- Given these circumstances the defendant. by testifying of the test results ification why to to is difficult see the State failed witness. 542 P.2d 785. No such or court join why in the motion trial person- of conference nor continuance, a a to order course of failed verification in the record al before which would have action foreclosed Finally, availability, on the of us. issue we litigation of later con- very possibility real opinion, the Kreck while it alludes note that con- cerning a violation of defendant’s reliability require- v. Evans to the Dutton rights. frontаtion ment, fails mention other recent United reports the laboratory conclude that “We Specifical- Court decisions. States requirements the basic of meet fail any discussion ly, it omits of Barber v. they must like- Clause. Thus holds that Page, applicable but instead guarantees of the Ten- fall under the wise records statute ‘contains no re- business It follows that Constitution. nessee prepared quirement into evidence violated the introduction be shown to be unavailable be- the record right of this defendant to receive stitutional record can 542 P.2d fore the admitted.’ the case should a fair analysis begs question. This at 787. a new determination of his remanded Although the state statute contain no or innocence. guilt purposes qualifying of requirement conclusion, reaching we are not as an exception “In rule, opinion governing of the recent of the constitutional law unmindful federal Washington in in criminal case quite Court confrontation clear- “We presence, sympathy mandates either California are in ly with recent efforts Green, supra at 157 U.S.] to increase courtroom we efficiency and unavailability 1930], coupled proof with agreement the progressive philosо- attendance, good faith effort secure aof phy which holds that the truth-determining Page, supra at 724-25 Barber [390 U.S.] process in criminal cases should hin- major Thus the weakness S.Ct. 1318]. dered by needless technicalities. of the One its opinion recog- the Kreck is failure to salutary manifestations of the trend toward a fundamental distinction between the nize effectuation of these goals is the recent аpplicability excep- business adoption in the federal court system the opposed in criminal as to civil cases. tion Evidence, Federal Rules of which substan- recog- the successful invocation of a While tially hearsay exception may expand recognized be more the number of nized ex- situation, latter automatic in the less ceptions to rule against hearsay. setting рoten- in the criminal utilization legislatures various state would do well to requirements tially restricted emulate the achievement of the federal Clause. courts in this area the law. At the same our own “Finally, we have reviewed Su- wary time we are the possible ill-effects Robbins, decision in State v. Court’s preme decision other than the one we reach (Tenn.1974). In that case S.W.2d here would have the аdministration of was called to decide the justice Tennessee and of its in- constitutionality of T.C.A. evitable erosion state and federal consti- for certification the results provides guarantees. tutional If we were to allow laboratory tests to determine the conducted prosecution very essence content of The statute fur- blood. alcoholic charged by the crime mеans of a written provides: ther report, untested cross-examination and provided The certificate for in this sec- submitted in lieu of the testimony wit- shall, duly tion attested the chief unavailable, truly nesses not we would have duly medical examiner or his appointed representative, be admissible in any step taken a backward rather than forward. court, any proceeding, criminal as evi- assignment Thеrefore the of error ad- stated, dence of the facts therein and of dressed to the violation at trial of the de- test if person the results of such fendant’s right to confronta- taking causing speci- or to be taken the tion must be sustained.” person performing men and the the test available, if specimen of such shall We concur conclusion of the witnesses, upon subpoenaed as dеmand Appeals Court Criminal in the face the cause. . party either objection person charged, of an added). (emphasis can not essential element of the Robbins court concluded that the Thus by test a criminal offense results introduced require ‘does not statute through a witness other than the one who witnesses to be admitted into unconfronted If otherwise, ‍‌​​​​‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‌‌‌‌​‌​‌​‌​​‌‌‌‌‌‌‌‌‌​‍conducted the tests. it were аllows such merely but ’ charged with the offense would . object. the defendant does not . right be denied his constitutional to con addition, at 268. In it seems 512 S.W.2d front witnesses him. legislative underlying that the intent clear promote efficiency is to T.C.A. judgment the Court of Criminal scrupulously pro- at the same time reversing Appeals, the trial court and re- the criminal defendant’s confrontation tect manding the case for is affirmеd. authorizing have no rights. But here we statute, objected and here the defendant HENRY, FONES, BROCK, and HARBI- right to confront the wit- denial of his SON, JJ., against him. concur. nesses TO REHEAR PETITION ON plead- has filed a of Tennessee The State Rehear, or in the “Petition to

ing entitled

alternative, of Feder- Motion for Certificate asks this Basically, Question.”

al judgment its and amend to reconsider

court predicated court whether this

to reflect the Sixth Amendment on

holding of the United

Constitution 9 of the Constitution Section

Article

Tennessee, articles. both clarify amend or no need to

We see Both the state in this case.

judgment give defendant constitutions

federal wit- to confront action the follows necessarily

nesses deprived of that a defendant

that when deprivation violates

right, of Tennessee and the Constitu-

Constitution the United States.

tion of LIFE

METROPOLITAN INSURANCE

COMPANY, Life Interstate and Accident Fidelity Company, Mutual Life

Insurance Company and Jefferson Stan-

Insurance Company, Life Insurance Petition-

dard

ers, Woodall, Smith, Wynn Robert M. G. Dale Johnson, Callison, ‍‌​​​​‌​‌​‌​‌​‌​‌‌​​​​‌‌‌​‌‌‌‌‌​‌​‌​‌​​‌‌‌‌‌‌‌‌‌​‍peti- Memphis, Susan Individually SMITH, and Co-Ex- Christine Cobb, tioners; Canada, Turner, Russell & Doyle the Estate of Dr. J. ecutor Woodall, Edwards, Hamlet, Nichol & Mem- Smith, Deceased, al., Respondents. et of counsel. phis, of Tennessee. Supreme Court Jr., Smith, Raines, J. N. Lucius E. D. Jack Dann, Burch, Memphis, respondents; Aug. Goldin, Blackburn, Burch, Smith & Porter Johnson, Memphis, of counsel. & HARBISON, Justice. four

Respondents sued life insurance indemnity double bene- seeking companies alleged accidental death of fits for insured, ordinary Doyle Dr. J. Smith. The

Case Details

Case Name: State v. Henderson

Court Name: Tennessee Supreme Court

Date Published: Aug 15, 1977

Citation: 554 S.W.2d 117

Court Abbreviation: Tenn.