State v. Seale, M2019-01913-CCA-R9-CD

• Decision Date: 20 July 2020
• Docket Number: No. M2019-01913-CCA-R9-CD,M2019-01913-CCA-R9-CD
• Parties: STATE OF TENNESSEE v. DENNIS LEE SEALE
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. DENNIS LEE SEALE

No. M2019-01913-CCA-R9-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs April 14, 2020

July 20, 2020

Direct Appeal from the Circuit Court for Lewis County

No. 2017-CR-141

Michael Binkley, Judge

The Defendant, Dennis Lee Seale, filed a Rule 9 interlocutory appeal seeking our review of the trial court's ruling that some of the prosecution's out-of-state witnesses could testify at trial via two-way video conferencing technology. After a hearing, the trial court ruled that four of the prosecution's witnesses could testify via teleconferencing rather than in person. The Defendant filed an application for an interlocutory appeal, which the State did not oppose, and which the trial court granted. This court determined that this application met the criteria of Rule 9, and granted the appeal. On appeal, the Defendant contends that the trial court erred because its ruling violated his rights pursuant to the Confrontation Clause of both the Federal and our State constitution. After a thorough review of the record and applicable authorities, we conclude that this case, as one of first impression in this state, provides this court the opportunity to hold that the standard as articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video conferencing technology. As such we reverse and remand this case to the trial court for a case-specific and witness-specific determination of whether the denial of the Defendant's right to confront witnesses is necessary to further an important public interest.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Dennis Lee Seale.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Kim R. Helper, District Attorney General; and Stacey Brackeen Edmonston, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from allegations that the Defendant burglarized the victim's home and then murdered him. In 2017, a Lewis County grand jury indicted the Defendant for: the first-degree premeditated murder and the felony murder of Brian Deavers; the especially aggravated burglary of Mr. Deavers's home; being in possession of a firearm during the commission of a dangerous felony; and vandalism. The Defendant moved to continue the trial, set for January 28, 2019, due to a delay in forensic testing. The trial court reset the trial date for July 22, 2019.

On July 12, 2019, the State filed a motion requesting that four of the prosecution's witnesses, all of whom were from Virginia, be allowed to testify via teleconferencing technology, namely "Microsoft Teams," the software used by the District Attorneys General Conference.¹ Those four witnesses were: James Reed; Sharon Wolfrey²; Lyle Durrer; and Judith Seale.

The trial court held a hearing on the State's motion on July 16, 2019, during which the parties presented the following evidence: The State offered argument about why each of the witnesses should be allowed to testify via teleconferencing. It stated that James Reed's wife suffered from dementia and had a recent cancer diagnosis, and Mr. Reed was her sole caretaker. The two of them lived together in Virginia, and traveling to Tennessee would be difficult in light of these circumstances. The second witness, Sharon Wolfrey, who was Mr. Reed's assistant, also lived in Virginia and had also been diagnosed with cancer. She was undergoing cancer treatment, so the State asked that she also be able to testify via "Skype." The third witness, Lyle Durrer, had a son who was starting college orientation the following week, and Mr. Durrer stated it would be difficult for him under those circumstances to make the eleven-hour drive to Tennessee. The final witness, Judith Seale, who was the Defendant's mother, informed the State that it would be extremely burdensome on her emotionally to come to the trial and asked for an accommodation.

The State offered affidavits for two of the four witnesses. Mr. Durrer's affidavit indicated that he sold the Defendant a firearm and ammo from Mr. Durrer's store. Mr. Durrer swore that he could not attend the Defendant's trial because it interfered with his son's college orientation.

The State also offered Mr. Reed's affidavit. In it, Mr. Reed described his wife's health issues, including dementia and cancer, and his inability to leave Mrs. Reed because he was her sole care provider. The State additionally offered Mr. Reed's wife's doctor's affidavit, which stated that she was unable to travel.

The State did not present affidavits from Ms. Wolfrey or Ms. Seale, but relied on its statements that Ms. Wolfrey was also battling cancer and that Ms. Seale had said coming to court would be "extremely burdensome on her emotionally" and that her testimony would take only thirty minutes, as she was only being called to authenticate the Defendant's jailhouse phone calls to her during which the Defendant made inculpatory statements.

The State explained that the teleconferencing software allowed for the judge and both attorneys to see a witness, and the witness to see those parties. It then allowed for a screen to project the witness so the jury could see them testify. The State noted that this would be live, and not prerecorded testimony, and that the Defendant's attorney would be afforded the ability to cross-examine the witness, which the State submitted satisfied the Confrontation Clause.

The Defendant's counsel submitted that Tennessee case law has held that the Defendant must be afforded the right to confront the witnesses face to face. Counsel then noted that this was a "high stakes" first degree murder case, and the witnesses referenced by the State were important to the prosecution's case. Mr. Reed, in fact, planned to testify whether the Defendant was with him at the time of the shooting. Further, the Defendant's mother planned to identify the Defendant's voice in a jail recording that contained "very, very damaging admissions about [the Defendant's] participation in this shooting."

The trial court first noted that this was an "interesting issue" and that, as an issue of first impression, could be decided either way. It found:

I think the laser focus is, if [the Defendant] is going to receive and have his right of confrontation through this method of providing long distance testimony balanced against the need of these witnesses to use [teleconferencing software] instead of having to be here personally. Now, there's being here personally and then being personally available through [teleconferencing software]. I think there's a difference in that, but it may not be a distinguishing difference when it comes to the right of confrontation. In other words, is the [D]efendant going to have his right of confrontation met in the same manner as if these witnesses were here in the courtroom live testifying as they would with [teleconferencing software],that's really the issue here, are we giving him the same exact protection that he deserves and that the Constitution requires if we're doing it by [teleconferencing software].

The trial court then offered the following instructive findings:

The confrontation clause of the Sixth Amendment to the United States Constitution says -- and this is what we're really kind of balancing it all against - in all criminal prosecutions, the accused shall enjoy the right to be confronted, the pertinent part, with the witnesses against him. In addition, [the defense attorney is right that] [t]he Tennessee Constitution provides a little bit different protection than I think a broader protection than the United States Constitution. In Article 1, Section 9 of the Tennessee Constitution it says that in all criminal prosecutions, the accused . . . have the right to meet the witness face to face. . . . Traditionally, the Tennessee courts have interpreted the right of confrontation as affecting two types of protections for criminal defendants just like in this case. The right to physically face the witness who testifies against the defendant and the right to cross-examine those witnesses through counsel.

I do not think McCoy really applies to the facts of the case that we have here currently, but it is instructive, it's helpful. Deuter, . . . is helpful and I believe comes closer to defining the parameters of the right of confrontation, not only under the U.S. Constitution but also the Tennessee Constitution.

Now, in reviewing the pertinent case law, these are the -- for lack of a better term -- pressure points that I think the Court needs to consider in weighing the right of physical face-to-face confrontation and the witnesses' inability to be present in the courtroom to testify. First of all, does the reason for the witnesses' inability to appear physically in the courtroom, does that rise to the level presented by the affidavits that we do have to excuse those witnesses from appearing physically in court? I think they do. I think they do, but I'm going to balance that with a confrontation clause in a moment. So to ensure that we don't violate the confrontation clause we need to know whether or not the equipment, that is the software, . . . program is reliable. In other words, are we going to, in essence, meet the parameters of the confrontation clause where the person is testifying as if live, and the other second prong is whether or not this defendant will be able to enjoy the second part of the confrontation clause, and that is to cross-examine these witnesses who are testifying in a remote fashion.

The testimony of these witnesses, as I understand it with the program that is going to be utilized, will be in real time. There will be no actual delay. I'm not too

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