Law School Case Brief
State v. Bailey - C.C.A. NO. 02C01-9506-CR-00176, 1998 Tenn. Crim. App. LEXIS 1234 (Crim. App. Dec. 10, 1998)
Before a witness who refuses to testify pursuant to the U.S. Const. amend. V can be declared unavailable under Tenn. R. Evid. 804(a)(1), the witness must appear in open court and invoke his privilege against self-incrimination, and the trial court must rule that the testimony of the witness is in fact privileged.
A jury in Tennessee state court convicted defendant Darryl J. Bailey of murder committed during the perpetration of a robbery and sentenced him to life imprisonment. At trial, several witnesses testified they saw defendant with a silver gun standing in the crime scene area with his friends. Defendant admitted to police he knew two of his friends were planning to commit robberies in the area. Witnesses testified that defendant and another man shot at the victim when he attempted to get into his car. Defendant confessed that he shot the victim four times. However, there was evidence that another perpetrator fired some of the multiple shots that hit the victim. Thus, defendant challenged his conviction, claiming that the evidence was insufficient to support his conviction and that the trial court erred when it ruled that a statement of a co-defendant, Bland, could not be introduced into evidence.
Was Bailey's conviction proper?
The appellate court reversed the judgment of the trial court and remanded for a new trial. The court held that the trial court clearly erred when it ruled that it would not admit Bland's statement even if Bland appeared in court and asserted his privilege against self-incrimination. Although the general rule is that a witness must appear in court and assert his or her privilege in order to be declared unavailable, defendant cannot be faulted for withdrawing the subpoena to have Bland appear in court so that he could assert his privilege against self-incrimination when the trial court had essentially stated that it would be pointless to do so. It appears that ultimately, the reason why defendant failed to comply with the general rule was because of the trial court's erroneous ruling.
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