The CCA, Tenn. R. Evid. 803(26), and Prior Inconsistent Statements as Substantive Evidence

By Stevie Phillips

In State v. Ackerman, the Tennessee Court of Criminal Appeals addressed Tennessee Rule of Evidence 803(26), a hearsay exception adopted in 2009 that allows admission of some prior inconsistent statements as substantive evidence. 

The Rule states that the following are not excluded by the hearsay rule:

A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:      

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.                                                                                                                                                                    

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.                                                                                                             

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

The CCA emphasized that

[t]o be admissible as substantive evidence via Rule 803(26), a statement must first be admissible as a prior inconsistent statement via Rule 613(b). That rule provides that ‘[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

The admissibility of a prior inconsistent statement as substantive evidence will often turn, therefore, on whether the witness testifies in an inconsistent manner.  As the CCA explained, the witness must deny the statement, equivocate about having made the statement, or testify inconsistently and then testify that he or she does not recall making the prior inconsistent statement.  Finally, the court noted that nothing in Rule 803(26) “permits the admission of a witness’s prior statement in its entirety.”

The full opinion can be found here. 

6th Circuit Appeals Court Upholds Child Pornographer’s Life Sentence

by Lee Davis

• UNITED STATES v. STEPHEN LYNN HAMMONDS

The U.S. Court of Appeals for the Sixth Circuit upheld the life sentence of a Jackson, Tennessee man who pleaded guilty to the sexual exploitation of minors and in trafficking child pornography. Stephen Lynn Hammonds, 45, argued on appeal that his 2010 sentence by U.S. District Court Judge Bernice Donald of Memphis was unreasonable and excessive.

Hammonds argued that mandatory guidelines imposed a sentence that was too harsh for the crime that was committed. Hammonds was originally arrested as part of a larger sting operation in 2009 by the Memphis office of the FBI. 

According to court records, Hammonds told FBI agents (posing as children) that he wanted to meet and have sex with them and that he had done so in the past on multiple occasions with his own teenage stepdaughter. Agents with a warrant searched his home and found dozens of files containing child pornography. He then pled guilty to federal charges six months later. 

This wasn’t Hammonds’ first time in trouble with the law. In 1998 he was arrested on charges of statutory rape and incest with a young girl between the ages of 13 and 15. This previous convicted served to enhance the guidelines for his federal punishment and led to his life imprisonment. 

In his appeal he pointed to a psychologist’s report saying that he was only a medium-low risk of reoffending and he had accepted responsibility for his actions and even helped agents find and convict another child pornographer. 

The government argued that Hammonds had bragged about his earlier conviction for incest and used it while looking for new targets of abuse. Judge Donald declared Hammonds to be “particularly dangerous” and deemed him beyond the point of rehabilitation. She said that he needed to be permanently separated from society and the children he might place at risk.

Writing for a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Julia Gibbons said Judge Donald did not abuse her discretion in doling out the tough sentence. “The district court did consider the mitigating factors in the case,” Gibbons said, “but found, appropriately and within its discretion, that concerns about the seriousness of the crime and the need to protect the public were paramount.”


Here is the full opinion of the court: United States v. Stephen Hammonds.

Read: “Federal appeals court upholds Tennessee child porn trafficker’s life sentence,” by Lawrence Buser, published at CommercialAppeal.com.

Earlier:

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

Supreme Court decides two important cases affecting attorneys obligations to clients

Judge from Court of Criminal Appeals Points Out a Discrepancy in Various Statutes in the TN Criminal Code

JOSEPH M. TIPTON

In a concurring opinion to the Court of Criminal Appeals decision in  State v. Deandre Blake, Judge Joseph Tipton agreed with the Court's opinion, but elected to point out a possible discrepancy in various statutes in the criminal code. We think that these are important issues and ones likely to be revisited by the Court.

This case involved convictions by Blake for two counts of first degree murder committed in the perpetration of child abuse and child neglect. Blake argued on appeal that the evidence was not sufficient to uphold the convictions. The Court held that the evidence was sufficient to uphold both convictions.

Justice Tipton agreed but questioned the language of the provisions of the TN Criminal Code including: first degree murder, aggravated child abuse and aggravated child neglect. He emphasized the history of the Tennessee Legislature with regards to amendments to the felony murder statute. Specifically, in 1998, the legislature added aggravated child neglect to the list of predicate felonies in the felony murder statute. During that same year, the legislature amended the child abuse statute to include as a felony, "Aggravated Child Neglect." The intent of the legislature at this point was to "distinguish criminal conduct that caused injury to a child from criminal conduct that adversely affected a child's health and welfare by creating two different offenses, child abuse and child neglect."

However, in 2005, Justice Tipton explains, the legislature enacted a statute that penalized 1) treating a child in a way as to inflict injury or 2) abusing or neglecting a child so as to adversely affect the child's health and welfare." According to Tipton,

"to the present date, the felony murder statute retains the predicate felonies of 'aggravated child abuse' and 'aggravated child neglect' even though the offense of 'aggravated child neglect' contains the alternative that it may be committed through 'abuse."

Therefore, while the legislature seemed to include child abuse as a type of aggravated child neglect, the felony murder statute continues to separate both offenses.

Justice Tipton explained that while this is a blatant discrepancy, the standard of review requires the Court to presume that the legislature did not intend an absurd result and to avoid such result by reasonable construction, to the extent possible. In judging the evidence in the light most favorable to the state, the evidence was sufficient to prove that the Defendant abused the victim and that his beatings had an adverse effect on her health and welfare, and that she clearly suffered serious bodily injury. Therefore, as the statute for felony murder requires, the victim was killed in the perpetration of these acts.

It will be interesting to see when or if the legislature responds to this discrepancy.  Here it may not have made a difference in the end result, but clearly it could be problematic in future cases.

The Dangers of 'Caylee's Law' in State Capitals

In Nashville like nearly 20 other state capitals across the country legislation has been introduced to address the perceived problems with the verdict in the Anthony case.


Steve Chapman reports in today's Chicago Tribune about the dangers to this reaction based law drafting.

So in some 20 states, bills have been introduced making it a felony not to report a child's disappearance within a given time — eight hours, 24 hours or 48 hours. Some would also make it a crime not to report a child's death within one or two hours. If such a law had been in effect in Florida three years ago, Anthony might have gotten a lengthy sentence despite the murder acquittal.

The obvious problem with reaction based legislation is that it does not address the anger to the issues that caused the verdict and it will be irrelevant to future cases.  Tennessee already has laws on the books that make it a crime to to neglect or injure a child. The neglect statute is particular tough carrying 15-25 years in prison for this A felony in the most serious cases.  

TN Legislatures push for "Caylee's Law"

After the surprising not-guilty verdict in the Casey Anthony trial, legislatures have drafted a bill known as "Caylee's Law" for the state of Tennessee.

Under the current law, parents are required to report to the police that their child is missing, but do not suffer any penalties if they fail to do so. Caylee's Law will make it a Class A misdemeanor punishable by up to one year in prison and a $2,500 fine if a parent fails to report a missing child within 48 hours of the child's disappearance. Further, if the child experiences serious bodily injury or death during the course of their disappearance, the offense upgrades to a Class C felony punishable by three to fifteen years in prison and a fine of up to $10,000.

State Representative Craig Fitzhugh said he drafted the bill in response to the many emails he received from concerned Tennessee citizens following last week's verdict. Many citizens in Tennessee and around the country were outraged by the verdict, believing Casey had to have done something to Caylee or else she wouldn't have waited 31 days to report her as missing. Naturally, this sparked an online movement to enforce laws like "Caylee's Law" to prevent another situation like Caylee's.

Tennessee joins more than a dozen different states which have drafted different versions of "Caylee's Law." Lawmakers will consider the bill when the legislature comes back into session in January.


Richard Locker of the Commercial Appeal reported on this topic today.

Aggravated Child Neglect Convictions Overturned By Court of Criminal Appeals

• STATE OF TENNESSEE v. WANDA ELAINE BROCK

The Court of Criminal Appeals reversed a Sullivan County jury verdict.  The court held that there is insufficient evidence to support the convictions of aggravated child neglect and dismissed those counts outright.  As to the two counts of aggravated child abuse, the court reversed those convictions and remanded them for a new trial. 


Judge Witt delivered the opinion of the court: "we reverse (aggravated child neglect) convictions and dismiss those charges. We further conclude that the trial court erroneously excluded evidence of the victim’s inconsistent statement that was admissible pursuant to Rule 806 and that the State failed to prove beyond a reasonable doubt that the trial court’s error did not contribute to the verdict. In consequence, the remaining convictions of aggravated child abuse in counts one and two are reversed, and those counts are remanded for a new trial."


A Sullivan County grand jury charged the defendant with one count of aggravated child abuse causing serious bodily injury, one count of aggravated child abuse committed by the use of a deadly weapon, one count of aggravated child neglect causing serious bodily injury, and one count of aggravated child neglect committed by the use of a deadly weapon. All counts involved a single allegation that the defendant burned the palm of her eight-year-old daughter, with a cigarette.

Based upon the evidence introduced at trial, the jury convicted the defendant on all charges. At sentencing, the trial court entered judgments of conviction sentencing the defendant to 20 years to be served at 100 percent.


On appeal, the defendant raised several issues that attacked the sufficiency of the evidence. The court agreed as to the child neglect counts and dismissed those.  The court found there was enough evidence to convict on the aggravated child abuse counts, but because of a problem over excluded  testimony the case is reversed and a new trial granted.


Specifically, the defendant claimed that the trial court erroneously excluded the testimony of a forensic interviewer with the Children’s Advocacy Center who would have testified that the victim reported that another person burned her hand.


For context you should know that the victim did not testify in this case. The state introduced a hearsay statement of the victim made to a doctor in which she identified the defendant as the person who inflicted a cigarette burn to her hand.  This statement was admissible as an exception to the rule against hearsay because the statement was made in the course of medical diagnosis and treatment of her injuries.


Once admitted, the credibility of the victim was then subject to attack through the use of any inconsistent statement made by the victim regardless of the victim's having an opportunity to deny or explain the inconsistent statement. See Tenn. R. Evid. 806. The offered inconsistent statement need not itself satisfy the terms of a hearsay exception. Because it is offered as impeachment evidence, it is not offered to show the truth of the matter asserted and, therefore, is not hearsay.  


By excluding this impeachment statement, the trial court erred by excluding the victim’s statement made identifying someone other than the defendant as the person who inflicted the burn to her hand. And, that is why the case is coming back for a retrial.