Law School Case Brief
State v. Cannon - 254 S.W.3d 287 (Tenn. 2008)
The erroneous admission of testimony in violation of an accused's right of confrontation is not structural error mandating reversal. Such a violation is subject to harmless error review. A constitutional error is harmless if the State proves beyond a reasonable doubt that the error did not affect the verdict at trial.
Four years earlier, after defendant Kacy Cannon was convicted of theft, a sample of his blood was drawn, and his DNA profile was uploaded. The investigators reported a match between Cannon and the unknown DNA profile from the semen found on the pantyhose of M/.., an elderly victim of rape. Thereafter, a Grand Jury indicted Defendant for the aggravated rape of M.N.
Prior to trial for the rape, Cannon filed a motion to suppress the identification of his DNA profile from CODIS and a motion in limine challenging the chain of custody of the pantyhose. The trial court denied both motions. At trial, although the now 86-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. Cannon moved for an acquittal on the ground that the State had violated his right to confrontation by failing to call M.N. to testify. 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. Defendant appealed his conviction.
1. Was the State able to establish a proper chain of custody of the victim’s pantyhose, and if not, was the failure considered a harmless error?
2. Did the failure of the prosecution to present the victim to testify at trial violate the right of defendant Cannon of his confrontation right?
1. The Court agreed with Cannon that the trial court erred by admitting into evidence the DNA analysis of semen found on the pantyhose because the pantyhose was identified as belonging to the victim by a witness with knowledge. While a nurse testified that the pantyhose was in the plastic bag, photographic evidence did not support this assertion. The Court observed that the suspect nature of the identification of the pantyhose was further compounded by the fact that the nurse remained in the courtroom during the physician's testimony about the hospital's protocols for securing a patient's clothing. The failure of the State to establish a proper chain of custody of the pantyhose was not a harmless error because the only tangible evidence linking Defendant in any way to the victim was the DNA analysis derived from the semen found on the pantyhose.
2. The Court held that some out-of-court statements of M.N. are testimonial and should have been proved to be within the prerequisites of admissibility before they were admitted. The Court ruled that the out-of-court statements of M.N. to the first officer who responded to the 911 call, to the detective who interrogated M.N. after she was stabilized at the emergency room, and to the attending nurse in the emergency room, were all testimonial statements as they were trying to prove report or describe the past crime. Because M.N.'s statements to the police officer, the detective, and the nurse were testimonial, the State and Federal constitutions permitted the introduction of these statements only if M.N. was unavailable at trial and Defendant had had a prior opportunity to cross-examine her. The Court found that the record established neither of the prerequisites for admissibility. The State offered no proof to establish unavailability. Finally, the Court resolved that testimonial out-of-court statements should be admitted at the new trial only if the prosecution establishes both the witness's unavailability and Defendant had a prior opportunity to cross-examine the witness.
The Court reversed the conviction and remanded the case for a new trial on the charge.
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