State v. Franklin
| Decision Date | 29 April 2010 |
| Docket Number | No. W2007-02772-SC-R11-CD.,W2007-02772-SC-R11-CD. |
| Citation | 308 SW 3d 799 |
| Parties | STATE of Tennessee v. Darrell FRANKLIN. |
| Court | Tennessee Supreme Court |
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; John H. Bledsoe, Senior Counsel; William L. Gibbons, District Attorney General; and Pamela D. Fleming, Assistant District Attorney General, for the appellant, State of Tennessee.
Robert Jones, Shelby County Public Defender; Phyllis Aluko (on appeal) and Lawrence R. White (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellee, Darrell Franklin.
We granted this appeal to determine whether the admission into evidence of an automobile license tag number observed and written down by a bystander near the crime scene who did not appear at trial violated the defendant's right to confrontation under the federal and state constitutions. A few seconds after being robbed at her place of employment, the victim ran out of the business, told a bystander that she had been robbed, and asked the bystander to observe the tag number of the vehicle operated by the man who had just left the business. The bystander did so and then came inside the store to write the number down for the victim. The victim added other descriptive information about the robber to the same piece of paper and then turned it over to the police. The tag number was traced to a vehicle owned by the defendant, whom a jury ultimately convicted of one count of robbery. The Court of Criminal Appeals reversed the conviction, holding that the written tag number was "testimonial hearsay" within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and concluding that the statement's admission was plain error. Based on our objective review of the circumstances surrounding the statement, we conclude that the written tag number was "nontestimonial hearsay" that did not implicate the defendant's right of confrontation and was admissible as an excited utterance. We reverse the judgment of the Court of Criminal Appeals and reinstate defendant's conviction.
The events giving rise to this case took place at the Yorkshire Cleaners located in a strip mall at the intersection of Poplar Avenue and Holmes Street in Memphis. At the time of the events in question, a restaurant was being constructed immediately to the west of the cleaners, and a Baptist Minor Medical Center was open for business immediately to the east.
On Saturday, July 29, 2006, Melissa Polson was the only employee working at the Yorkshire Cleaners. Sometime that morning between 10:00 A.M. and 12:00 P.M., Polson testified that she was serving a customer when she saw another man standing in line. Polson testified that the man waited for about three minutes while she went to the back of the store to retrieve the first customer's clothing. Once Polson finished with the first customer, she asked this man to state his last name.2 She thought his answer sounded like "Phillips" but was not sure, so she asked the man to say his last name again. Instead of repeating his last name, the man told Polson, "Give me all your money or I'm going to blow your ass off."
Based on this threat Polson presumed that the man was armed and would shoot her if she did not give him the money in the store's cash register. Looking down, Polson complied and handed over the money out of the cash drawer. The man then asked Polson to lift up the drawer to see if larger bills were kept underneath. There were no such larger bills. The man then told Polson to back up, turn around, and count to ten. Polson testified that the event "seemed like a long time" but took less than fifteen minutes.
As Polson completed her count to ten, she heard the dinging sound that the store's front doorbell made whenever it was opened. Polson then looked at a television monitor displaying the image from the store's security cameras. This image showed the man "speed walking" away from the store to the left.3 Polson then walked to the front door, and, within "maybe a couple of seconds" after hearing the ding, she exited the front door facing the parking lot. Polson admitted that she "took a chance" by going out of the store so quickly after the man had left, especially given her belief that he was armed.
Polson testified that, when she exited the front door, the only person whom she saw was a contractor helping to build the restaurant next door. Polson could see a white minivan beginning to move, about twenty feet away in the direction that the man had walked after he exited the store. The white minivan was the only vehicle leaving the parking lot at that time. Polson could not see the white minivan's driver or tag number. Polson did not move closer to obtain the tag number because she did not want to leave the store unlocked with the money it still had and because she was feeling "a little shaky" after being robbed for the first time in her life.
Polson asked the contractor where the man went who had just walked out of her door. She told the contractor that she had been robbed and needed the tag number of the vehicle that the man had gotten into. Polson testified that, while standing only two to three feet away from the white minivan, the contractor leaned over and observed its tag number.4 He then walked back to her. When the contractor came back to the store, Polson's hand was shaking too badly to write down the tag number herself. Therefore, the contractor wrote down the tag number for her. Later, Polson wrote details about the man's face, height, and size on the same sheet of paper with the tag number. Subsequently, she gave that paper to the police when they arrived at the scene.
That same morning, Rhonda Dugger and Stephanie Smith were working as receptionists at the front desk of the Baptist Minor Medical Center ("medical center") next door. Each testified that a man entered the medical center and asked their permission to use the lobby restroom. They simultaneously granted him permission. After using the restroom, the man then left the medical center. Several minutes after the man left the medical center, police arrived on the scene, and Dugger and Smith learned that the Yorkshire Cleaners next door had been robbed.
Sergeant John Williams, the first patrol officer on the scene, testified that Polson was "very upset and scared" when he arrived at 10:24 A.M. Based on the Yorkshire Cleaners' location within his assigned ward, Williams estimated that it would have taken him three to four minutes from the dispatch call to get to the scene. Williams testified that he spoke with Polson, who explained that a black male had entered the business and demanded that she empty the cash register. Polson described the man to Williams as six feet tall, heavy set, and dark complected. Williams also testified that Polson had provided a tag number for the white minivan leaving the business, and Williams included that tag number in his offense report.5
According to Polson, another office6 spoke with the contractor inside the Yorkshire Cleaners. Polson testified that she and the contractor both provided the officers on the scene with their driver's licenses so the police could contact them later. However, no officers who testified had interviewed the contractor or had any information about his identity. He was not called as a witness.
Officer Mondie Quinn was assigned as the case coordinator for the Yorkshire Cleaners robbery. Quinn testified that he began his investigation by reviewing the offense report that uniform patrol officers had prepared at the crime scene. He contacted Polson to verify some of the facts in the offense report. Specifically, Polson described the perpetrator as an African American male, approximately six feet tall, weighing 200-250 pounds, heavy set with chubby cheeks, and a light-to-medium complexion.
Next, Quinn ran tag number 523 FTD, which was listed in the offense report narrative, through a police vehicle registration database. The tag number was registered to Darrell Franklin ("Defendant"). During Quinn's testimony the State introduced the vehicle registration form for this tag number into evidence as a public document, and Quinn read the tag number for the record.
Quinn then prepared a photo spread, with Defendant's headshot placed in the number five position. On the afternoon of July 31, Quinn, accompanied by Detective Paul Neely, visited Polson at the Yorkshire Cleaners. Quinn presented Polson with the form entitled "Advice to Witness Viewing Photographic Display" ("advice form"). This form explained, among other things, that the persons depicted might or might not have been involved in the crime, the viewer should not assume that the guilty party is represented in the lineup, and the viewer should make an identification only if the viewer is "positive." Polson went over the advice form, "made sure she understood what it was saying," and then signed the form.
After Polson signed the advice form, Quinn laid the photo lineup down on the store counter for Polson to review. Quinn "didn't want to pressure" Polson, so he "walked off" while she reviewed the lineup. Polson testified that she looked at the lineup for "five to ten minutes because she did not want to just pick someone she recognized off of the street" and because she "just wanted to make sure the person she chose was the right one." She circled the headshot placed in the number five position and wrote in the space underneath, She...
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