State v. Kennedy
1999 WL 74557, 1999 Tenn. Crim. App. LEXIS 136, 7 S.W.3d 58 (1999)
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Rule of Law:
An expert's opinion based on hearsay evidence not in itself admissible does not violate the Confrontation Clause of the United States or Tennessee Constitutions so long as the expert providing the opinion is available for cross-examination. Additionally, multiple convictions for different forms of theft arising from a single criminal transaction constitute double jeopardy under Tennessee law.
Facts:
- On November 24, 1992, at midnight, Ann Lightsey left her job at the Memphis State law library and returned home to her Georgian Woods apartment.
- As Ms. Lightsey attempted to unlock her apartment door, an assailant grabbed her hair, placed a gun against her temple, and forced her inside.
- The assailant then forced Ms. Lightsey to go through her jewelry box and remove all jewelry from her person, taking approximately fifteen pieces of gold jewelry, rings, and watches valued at about $2500.
- With the gun still aimed at her head, the assailant forced Ms. Lightsey to perform oral sex upon him and then sexually penetrated her vagina twice.
- Ms. Lightsey observed that the assailant was a light-colored black man who hunched over, but his face was obscured by a black or dark blue ski mask, and he wore heavy winter gloves.
- Several days before these crimes, Karen O’Kelley, a Georgian Woods resident, reported observing a suspicious older model, bright blue Cadillac with a black man sitting in the driver's seat in her parking place and recorded its license plate number, which she provided to the apartment manager, Shirley Moses Cutliff.
- In February 1993, Darrell R. Kennedy was arrested in connection with a separate jewelry store robbery, and at the time, he was driving a 1978 bright blue Cadillac.
- During the investigation into Ms. Lightsey's case, Ms. Lightsey identified two distinctive rings recovered from Kennedy's residence as belonging to her; one was a unique light blue stone mounted by a friend's father, and the other was a silver dome ring that had been twice broken and repaired in specific places.
Procedural Posture:
- Darrell R. Kennedy was charged in the Shelby Criminal Court with two counts of theft of property over $1,000 and one count of aggravated rape.
- A jury in the Shelby Criminal Court convicted Kennedy of two counts of theft of property over $1,000 and one count of aggravated rape.
- Kennedy was sentenced as a range II multiple offender to six-year sentences for each theft conviction and thirty-five years for the aggravated rape conviction. The trial court ordered the sentences for aggravated rape and Count One theft to run consecutively, for an effective forty-one year sentence, which was then ordered concurrent with his Count Two theft conviction. This effective sentence was also ordered to run consecutively to an outstanding twenty-five year sentence from a previous second-degree murder conviction.
- Kennedy appealed his convictions and sentences as of right to the Court of Criminal Appeals of Tennessee, raising issues regarding the admission of expert DNA testimony and testimony related to a suspicious vehicle.
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Issue:
1. Does the admission of expert testimony regarding DNA analysis results, where the testifying expert relied on preparatory work done by a technician, violate a defendant's constitutional right to confrontation if the expert is available for cross-examination? 2. Did the trial court err by admitting testimony regarding a suspicious vehicle near the crime scene and related license plate information without a proper foundation connecting it to the appellant, thus violating relevancy and hearsay rules? 3. Does convicting a defendant of two separate theft offenses (obtaining property and exercising control over property) arising from the same criminal transaction violate the constitutional protection against double jeopardy?
Opinions:
Majority - David G. Hayes
1. No, the admission of expert testimony concerning DNA analysis results, where the testifying expert relied on preparatory work done by a technician, did not violate Kennedy's constitutional right to confrontation because the expert (Special Agent Quill) was available for cross-examination. The Confrontation Clause ensures testimony under oath, observation of demeanor, and cross-examination, but it is not absolute. Expert testimony is admissible under Tenn. R. Evid. 702 and 703, which allows experts to base opinions on information made known by others if experts in the field reasonably rely on such data, even if it's otherwise inadmissible hearsay. Special Agent Quill, the supervisor, testified he was responsible for the case, determined what specimens were run, had safeguards for each phase of the test, and personally evaluated the technician's mechanical work. The FBI procedure is self-validating, meaning any errors in the preparatory phase would prevent a final analysis. The defense thoroughly cross-examined Special Agent Quill as to the samples, procedures, safeguards, and results reached. The court explicitly declined to apply the business records exception to DNA analysis prepared solely for litigation, questioning its inherent reliability as a business record. 2. Yes, the trial court erred by admitting testimony regarding the suspicious blue Cadillac and related license plate information without a proper foundation connecting it to Kennedy. The relevancy of Mrs. O’Kelley’s testimony depended on connecting the observed automobile and driver to Kennedy. The court conditionally admitted this testimony, but the State failed to establish the connection: Mrs. O'Kelley could not identify the driver, was not asked if the car matched Kennedy's, and the license plate paper was admitted only for identification, not as substantive proof. Mrs. Cutliff's and Officer Maxwell's testimony regarding the license plate number constituted inadmissible hearsay without a proper foundation. However, considering the overwhelming legitimate testimony, including DNA evidence identifying Kennedy as the perpetrator and his possession of the victim’s jewelry, the error in admitting the testimony about the suspicious blue car was harmless beyond a reasonable doubt and did not affect the trial's outcome. The trial court also did not abuse its discretion in denying a jury-out hearing for this evidentiary matter, as such hearings are only mandated for confessions, witness-accused testimony, or when required by the 'interests of justice.' 3. Yes, convicting Kennedy of two separate theft offenses (obtaining property and exercising control over property) arising from the same criminal transaction violated the constitutional protection against double jeopardy. The U.S. and Tennessee Constitutions protect against multiple punishments for the same offense. Under the 1989 Criminal Code, 'theft of property' is a single offense that consolidates various prior forms of larceny, embezzlement, and receiving stolen property. Since 'theft by obtaining' and 'theft by exercising control' are considered the 'same offense' under this consolidated statute, and the same evidence was used to support both convictions, they constituted double jeopardy. Finding this to be plain error, the court affirmed Kennedy's conviction and sentence for Count One (theft by obtaining) but vacated and dismissed the conviction and sentence for Count Two (theft by exercising control).
Concurring - Joe G. Riley
Concurred with the majority opinion.
Concurring - John Everett Williams
Concurred with the majority opinion.
Analysis:
This case provides significant clarity on the application of the Confrontation Clause in the context of modern scientific expert testimony, particularly for DNA evidence. It establishes a practical framework for admitting complex scientific findings where a supervising expert can rely on the preparatory work of technicians, provided the expert is available for thorough cross-examination regarding their methodology and conclusions. Furthermore, the ruling reinforces the constitutional protection against double jeopardy by definitively consolidating various forms of theft into a single offense under Tennessee law, preventing multiple convictions for the same underlying criminal act involving the same property. The court's harmless error analysis also illustrates the high burden required to overturn a conviction when other overwhelming evidence, such as DNA and direct evidence of possession of stolen goods, is present.
