State v. Cannon

• Decision Date: 29 April 2008
• Docket Number: No. E2005-01237-SC-R11-CD.,E2005-01237-SC-R11-CD.
• Citation: 254 S.W.3d 287
• Parties: STATE of Tennessee v. Kacy Dewayne CANNON.
• Court: Tennessee Supreme Court

254 S.W.3d 287

STATE of Tennessee v. Kacy Dewayne CANNON.

No. E2005-01237-SC-R11-CD.

Supreme Court of Tennessee, at Knoxville.

January 8, 2008 Session.

April 29, 2008.

Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public Defender, Chattanooga, Tennessee, for the appellant, Kacy Dewayne Cannon.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie Price, Assistant Attorney General; William Cox, III, District Attorney General; Mary Sullivan Moore and Boyd Patterson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

WILLIAM M. BARKER, C.J., delivered the opinion of the court, in which JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

Defendant was convicted of aggravated rape. The Court of Criminal Appeals affirmed his conviction but remanded for resentencing. Thereafter, we granted permission to appeal to consider the following issues: 1) whether the State failed to establish a proper chain of custody for the admission into evidence of pantyhose the victim was allegedly wearing at the time of the rape; 2) whether the evidence is sufficient to support the conviction; 3) whether the trial court erred in denying the defense motion to suppress the identification of his DNA profile from a DNA database; 4) whether admission of the victim's statements into evidence through third parties violated Defendant's constitutional right of confrontation; 5) whether the friendship between the trial court and one of the prosecuting attorneys created a serious appearance of impropriety and biased the trial court against Defendant; and 6) whether the Court of Criminal Appeals erred by remanding this case for re-sentencing. After considering these issues, we conclude that the State failed to establish a proper chain of custody for the admission into evidence of the pantyhose and that the victim's statements describing the assault to the police officers and her statements to the sexual assault nurse examiner were testimonial and admitted in violation of Defendant's right of confrontation. We further hold that the trial court properly denied Defendant's motion to suppress and Defendant's motion for recusal. Because the error in admitting the pantyhose into evidence was not harmless, however, we reverse Defendant's conviction for aggravated rape and remand for a new trial.

I. Factual Background

On November 18, 1999, eighty-two year old M.N.¹ reported that an unknown assailant raped her late in the afternoon in her Hamilton County home. Officer Damany Norwood ("Officer Norwood") of the Chattanooga Police Department ("CPD") was the first police officer to respond to M.N.'s 911 call. Officer Norwood testified that M.N. was visibly upset and that her whole body was shaking. M.N. described the attack and the perpetrator to Officer Norwood, who recorded her statements. Over Defendant's objections, Officer Norwood testified that M.N. told him that prior to the attack, M.N. and her sister had been sitting on M.N.'s porch when an unknown, young African-American man walked past her house. After her sister left, this same young man again walked by M.N.'s house and stopped to ask for a cup of water. M.N. said she would get him a cup of water, but told him to stay where he was. She gave him a paper cup of water from which the man took one drink. He threw out the rest of the water and started complaining about the water. M.N. began to close the door and the man then unexpectedly pushed M.N. from behind into the house and forced her onto a living room couch, covered her face with a pillow from the couch, raped her, and fled.

After speaking with Officer Norwood, M.N. was transported by ambulance to the emergency room at Memorial Hospital. Meanwhile, the police questioned M.N.'s neighbors and sister about the attack. Detective Charles Dudley ("Detective Dudley") of the CPD's Major Crimes/Homicide Division testified that two neighbors reported seeing a young African-American man wearing faded blue jeans and a teal jacket sitting on M.N.'s porch. Relying on this description, the police canvassed the neighborhood and quickly apprehended Elijah Ellington, who matched the neighbors's description. The police returned Mr. Ellington to the scene, and the neighbors identified him as the young man they had seen sitting on M.N.'s porch.² Furthermore, at Mr. Ellington's subsequent preliminary hearing following his arrest, all of the State's witnesses, including M.N., identified Mr. Ellington as the perpetrator.

Julie Marston, a nurse at Memorial Hospital's emergency room, testified from M.N.'s medical records that M.N. was treated for various injuries based upon her complaint that she had been sexually assaulted. After emergency room personnel completed their treatment of M.N., Ardyce Redolfo ("Nurse Redolfo"), a specially-trained sexual assault nurse employed by the Sexual Assault Crisis Center, examined M.N. as part of the police investigation to determine the extent of her injuries and to collect any evidence that could be used by the police in apprehending her attacker. Nurse Redolfo testified that she questioned M.N. about the attack and recorded her description. Nurse Redolfo read M.N.'s description of the attack to the jury. In addition, Nurse Redolfo testified that M.N. suffered a tear near the rectum and abrasions on the interior of the vaginal wall and inside the labia minora. Additionally, M.N. suffered bruising on her face and on her inner left thigh, and she was bleeding from a scab that had broken free during the attack. After ascertaining the extent of M.N.'s injuries, Nurse Redolfo also testified that she discovered the presence of semen on a pair of pantyhose that M.N. had purportedly been wearing at the time of the attack. Moreover, Nurse Redolfo collected blood samples from M.N.'s vaginal vault and drew a vial of M.N.'s blood for further analysis. All of this evidence was turned over to the police and subsequently to the Tennessee Bureau of Investigation ("TBI") as part of the investigation.

Approximately three months after the police arrested Mr. Ellington, the investigators determined that Mr. Ellington's DNA profile did not match the DNA profile derived from the semen found on the pantyhose. Consequently, the police released Mr. Ellington and the unknown DNA profile derived from the semen was uploaded into the TBI's Combined DNA Index System ("CODIS"), which is a DNA database. Eighteen months later, Defendant was convicted of felony theft, and pursuant to Tennessee Code Annotated section 40-35-321(c) (2003), a sample of his blood was drawn and his DNA profile was uploaded into CODIS. Shortly thereafter on May 11, 2002, CODIS reported a match between Defendant and the unknown DNA profile from the semen found on the pantyhose. After additional blood samples verified the CODIS match, a Hamilton County Grand Jury indicted Defendant for the aggravated rape of M.N. pursuant to Tennessee Code Annotated section 39-13-502 (2003).

Detective Dudley and an officer from the Hamilton County Sheriff's Office's fugitive division traveled to Brushy Mountain Penitentiary to take custody of Defendant. When Detective Dudley advised Defendant of the charges and of his Miranda rights, Defendant appeared "puzzled" and did not seem to understand fully the seriousness of the charges against him, responding "I don't remember doing that. How much time will I get?" Detective Dudley did not question Defendant further.

Although the eighty-six-year-old M.N. was in the courtroom throughout the trial and was introduced to the jury during voir dire, the State did not call her to testify. When the State concluded its case-in-chief without calling M.N., Defendant moved for a judgment of acquittal, arguing that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the State had violated Defendant's right to confrontation by failing to call M.N. as a witness. The trial court inquired if the defense counsel would like to call M.N. to testify. The defense counsel responded that she would call M.N. to testify. However, Assistant District Attorney General Mary Sullivan Moore ("ADA Moore") stated that M.N. was suffering from dementia and Alzheimer's disease and was therefore unavailable to testify. The defense counsel argued that this was the first time that the State had disclosed M.N.'s mental condition even though the trial court had inquired previously whether the State planned to call M.N. to testify. ADA Moore replied that she did not have to disclose M.N.'s mental condition.

The trial court chose not to address the issue of whether M.N. was unavailable and instead concluded that the inherent reliability of the hearsay exceptions argued by the State permitted the introduction of M.N.'s statements into evidence.³ Consequently, the trial court denied Defendant's motion for judgment of acquittal. Defendant elected not to present any proof and the case was submitted to the jury, which found Defendant guilty of the charge of aggravated rape.

As a result of the decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), issued after the jury convicted Defendant but before the initial sentencing hearing on July 12, 2004, the trial court delayed imposition of a final sentence for one month to allow the parties to research and to brief the impact, if any, of Blakely on Tennessee's sentencing procedure. Ultimately, on August 16, 2004, the trial court imposed the presumptive sentence for Class A felonies — thirty-two years and six months. See Tenn.Code Ann. § 40-35-210(c) (2003).

On appeal to the Court of Criminal Appeals, Defendant argued that the trial court erred by: 1) denying his motion to suppress the identification of his DNA profile from CODIS; 2) admitting the pantyhose into evidence where the State failed to establish a proper chain of custody; 3) holding...