08/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs June 20, 2018

            STATE OF TENNESSEE v. LLOYD RUSH PRATT, JR.

                   Appeal from the Circuit Court for Perry County
                    No. 2015-CR-17 Joseph Woodruff, Judge
                      ___________________________________

                           No. M2017-01317-CCA-R3-CD
                       ___________________________________


Defendant, Lloyd Rush Pratt, Jr., appeals from his convictions for driving as an habitual
motor vehicle offender, driving under the influence, and failure to exercise due care, for
which he received an effective sentence of one year with 120 days to serve followed by
supervised probation. Defendant argues on appeal that the trial court erred in denying a
mistrial, that the State committed a Brady violation, and that the trial court allowed
statements of a witness to be admitted despite her unavailability at trial. For the
following reasons, we determine that the trial court erred in denying a mistrial and
improperly admitting hearsay evidence. The judgments of the trial court are reversed and
remanded.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Vanessa Pettigrew Bryan, District Public Defender; Jacob Schwendimann (at trial) and
David Christensen (at trial and on appeal), Assistant Public Defenders, for the appellant,
Lloyd Rush Pratt, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Kim R. Helper, District Attorney General; and Nicole Dusche, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION

                                  Factual Background
       On August 24, 2015, the Perry County Grand Jury returned a multiple count
indictment charging Defendant with the following: one count of operating a motor
vehicle after having been declared an habitual motor vehicle offender (“HMVO”);
driving under the influence (“DUI”); DUI per se; driving on a suspended, cancelled or
revoked license; failure to provide evidence of financial responsibility; and failure to
exercise due care.

       Prior to trial, Defendant filed a motion in limine in which he asked the trial court
to prohibit the State from eliciting from any witness, video, or audio recording any
statement made by Christy Reeves. As the basis for this motion, Defendant asserted that
Ms. Reeves was present during the incident from which the charges originated but that
she passed away shortly thereafter due to “health issues unrelated to this case.”
Defendant argued that any statements made by Ms. Reeves were hearsay and violated
Defendant’s right to confront adverse witnesses. There is neither a transcript of a hearing
on this motion nor a formal order granting this motion in the technical record.1

        After several continuances, the case proceeded to a jury trial. After jury selection
but prior to the opening statements, counsel for Defendant moved the trial court to
dismiss one of the jurors because of an “interaction” between the juror and counsel for
the State. According to counsel for Defendant, one of the jurors “touched” counsel for
State, showing “some favoritism toward the State” prior to the presentation of the proof.
The trial court took the motion under advisement.

       At trial, Deputy Scott Bell of the Perry County Sheriff’s Department testified that
he was dispatched to a one vehicle accident in the “early morning hours” of February 15,
2015. When he arrived at the scene he observed one “white vehicle off to the left side of
the road.” The vehicle was about twenty feet “off the roadway.” According to Deputy
Bell “there was a white male in the driver’s seat and a female passenger in the passenger
seat.” The male identified himself as Defendant.

       Deputy Bell was “not sure” if the vehicle was running when he arrived. He
assessed Defendant and the female for injuries. The female complained of pain in her
“back and lower neck area.” Deputy Bell called Emergency Medical Services (“EMS”)
to respond to the scene. Deputy Bell explained that Defendant “got out [of the vehicle]
for a minute and I asked him to sit back down. He said he wasn’t feeling real good.”
Counsel for Defendant objected on the basis that the statement was hearsay and because
the defense had received “no notice of any statements made to Deputy Bell by the
[D]efendant.” The trial court overruled the objection.

        1
           From discussion between the trial court and the parties at trial, it appears that the parties
stipulated to the grant of this motion.
                                                 -2-
       Deputy Bell went on to testify that Defendant “wasn’t real sure” how the crash
happened but that Defendant “said he was” driving. Again, counsel for Defendant
objected, claiming that it was “a discovery issue” because Defendant had “no notice that
[Defendant] made any statements to Deputy Bell.”

        At that point, the trial court excused the jury from the courtroom. After a jury-out
hearing, the trial court determined that the State violated discovery rules by failing to
disclose statements made by Defendant at the scene. The trial court informed the jury
that they were not permitted to consider any portions of Deputy Bell’s testimony relating
to statements made by Defendant.

       Counsel for Defendant moved for a mistrial, arguing that the “whole defense [was]
that he never says he was driving” and that the officers “never asked him.” The trial
court determined that a curative instruction would suffice, denying the motion for
mistrial. The trial court issued a curative instruction to the jury. The trial court then
individually polled the jurors to ascertain whether they could follow the directive. Each
juror confirmed that they would be able to follow the curative instruction.

        Deputy Bell continued his testimony, explaining that he remained on the scene
until EMS and the Tennessee Highway Patrol (“THP”) arrived on the scene. THP arrived
at around 3:15 a.m. Deputy Bell explained that any accident that occurred outside the
city limits was handled by THP. The crash site was outside the city limits; therefore,
THP performed the investigation. Deputy Bell did not prepare a crash report because it
was not his case. Instead, Deputy Bell assisted THP Trooper Cody Allen in his crash
investigation, specifically by walking along the road to try to determine where the vehicle
left the roadway.

       On cross-examination, Deputy Bell admitted that he did not see the car leave the
roadway. Deputy Bell also admitted that he was uncertain whether Defendant or the
female had on a seatbelt when he arrived, but he “believe[d]” the female was wearing a
seatbelt. Deputy Bell described Defendant as having a “faint smell of alcohol.”

       Michael Lynn, a critical care paramedic for Perry County EMS, testified that he
responded to the crash in this case. When he arrived on the scene, Defendant was in the
“front seat, left side, driver.” Defendant admitted that he consumed alcohol. Mr. Lynn
smelled alcohol on the Defendant’s person and wrote in his report that Defendant
informed him that he thought “he blacked out, then ran off the road.”

        When Trooper Allen arrived, he observed a single vehicle resting “on a culvert
with the undercarriage on top of the culvert off the roadway, down an embankment in a
ditch, roughly 20-25 feet off the road.” Defendant was in an ambulance on a stretcher
                                            -3-
and the female passenger was “outside of the vehicle with a blanket wrapped around her
body.” During his investigation, Trooper Allen concluded that Defendant was the driver
of the vehicle and Ms. Reeves was the passenger based on “[s]tatements . . . told to [him]
by the - - by the passenger [Ms. Reeves] and by the [Deputy].” Counsel for Defendant
objected on the basis that the State was not permitted to utilize statements of Ms. Reeves,
described as the female passenger. The trial court overruled the objection, finding that
Trooper Allen never said “what those statements were.” Trooper Allen was unaware that
Ms. Reeves would not appear at trial. The trial court informed Trooper Allen and the
jury that the parties had stipulated that Ms. Reeves was deceased at the time of trial.

       According to Trooper Allen, Defendant “didn’t know” what happened during the
crash because he blacked out. Trooper Allen said Defendant was having a hard time
keeping his eyes open at the scene. His eyes were “bloodshot, watery . . . with
constricted pupils.” When asked how much he had to drink, Defendant informed Trooper
Allen that he had consumed six twelve-ounce beers. Trooper Allen described
Defendant’s speech as “slurred” and recalled that he “fell asleep actually [on] multiple
occasions” during their conversation. Defendant consented to a blood draw. Trooper
Allen sent a “blood kit” in the ambulance with Defendant so that the blood draw could be
performed at the hospital.

       Trooper Allen could not locate any skid marks on the road so he opined that the
driver “possibly had lost control of the vehicle.” He also discovered that the registered
owner of the vehicle was the daughter of the female passenger.

       When Defendant arrived at the hospital, Tracy Eschmann, a nurse, drew
Defendant’s blood. By that time it was 3:30 a.m. Testing confirmed that Defendant’s
blood contained alcohol and also contained oxycodone. Trooper Allen sent the blood
sample to the Tennessee Bureau of Investigation (“TBI”) for analysis. Special Agent
Jaquuia Ogilvie of the TBI received Defendant’s blood sample for analysis. The test
revealed Defendant had a blood alcohol level of .267.

        At the conclusion of the presentation of the State’s proof, the trial court
determined that there was not enough evidence to sustain a conviction for violation of the
financial responsibility law. As a result, the trial court dismissed this count of the
indictment. The jury found Defendant guilty of driving as an HMVO; DUI; DUI per se;
driving on a suspended, cancelled, or revoked license; and failure to exercise care. The
trial court dismissed the conviction for driving on a suspended, canceled, or revoked
license because the jury found Defendant guilty of the HMVO violation.

       At a sentencing hearing, the trial court merged the convictions for DUI and DUI
per se and sentenced Defendant to an effective sentence of one year, with 120 days to

                                            -4-
serve followed by supervised probation. Subsequently, Defendant filed a motion for new
trial, which the trial court denied after a hearing. This timely appeal followed.

                                                  Analysis

                                                I. Mistrial

       Defendant argues that the trial court erred in denying the motion for mistrial and
issuing an insufficient curative instruction to “remedy Deputy Bell’s testimony that
[Defendant] admitted to driving the vehicle.” Defendant agrees with the trial court’s
assessment that the State violated discovery rules by failing to inform Defendant of oral
statements made by Defendant to Deputy Bell at the scene of the incident but insists that
the curative instruction issued was inadequate to cure the prejudice of the evidence,
especially in light of the defense presented at trial. The State disagrees.

        As recounted above, Deputy Bell testified about several statements Defendant
made to the deputy after the incident. Counsel for Defendant objected to these statements
at trial on the basis that they were not provided by the State during discovery. The trial
court reviewed Defendant’s discovery request which included a request for “the
substance of any of the defendant’s oral statements made before or after arrest in
response to interrogation by any person the defendant [k]new was a law enforcement
officer, if the State intends to offer the statement into evidence at trial.”2 Counsel for the
State commented that Deputy Bell was on the witness list submitted to Defendant prior to
trial and that counsel for Defendant had participated in conversations with the State about
his testimony.

        At this point, the trial court asked the jury to step out of the courtroom. Counsel
for the State reported that Deputy Bell did not make a written report of the incident and
that there was nothing in the file to indicate Defendant made statements to Deputy Bell at
the scene of the incident. The trial court determined that there was an “un-excused”
“failure to disclose” the statements. As a result, the trial court informed the parties that it
would “instruct the jury that they are not to regard Deputy Bell’s testimony for any
purpose . . . with respect to those portions of his testimony with respect to statements
attributed to the defendant.”

      The trial court ultimately sustained the objection after the jury-out hearing,
concluding that the State failed to disclose the statements. As a result, the trial court
informed the parties that it would issue a curative instruction to the jury. Counsel for
Defendant moved for a mistrial, arguing that the entire case was based on the defense that
Defendant was not the driver of the vehicle and that it was impossible to “unring the bell”

       2
           Interestingly, the discovery request does not appear in the record on appeal.
                                                      -5-
when the jury heard from Deputy Bell that Defendant admitted that he was the driver.
The trial court denied the motion, issued a curative instruction to the jury, and polled the
jurors to ensure they understood the instruction.

       The decision whether to grant a mistrial due to inadmissible testimony from a
witness is a matter resting in the sound discretion of the trial court and will not be
overturned absent an abuse of discretion. State v. Nash, 294 S.W.3d 541, 546 (Tenn.
2009). “‘[N]ormally, a mistrial should be declared only if there is a manifest necessity
for such action.’” Id. (quoting State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003)). A
manifest necessity exists when something has occurred that would prevent an impartial
verdict, thereby resulting in a miscarriage of justice if a mistrial were not declared, State
v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000), and there is “no feasible
alternative to halting the proceedings,” State v. Knight, 616 S.W.2d 593, 596 (Tenn.
1981). The burden is on the party seeking the mistrial to show that a manifest necessity
exists. Land, 34 S.W.3d at 527. Even though “‘no abstract formula should be
mechanically applied and all circumstances should be taken into account,’” Nash, 294
S.W.3d at 546 (quoting State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993)), the
Tennessee Supreme Court has identified three nonexclusive factors for determining
whether a mistrial was warranted because of inappropriate testimony presented to the
jury: “(1) whether the State elicited the testimony, or whether it was unsolicited and
unresponsive; (2) whether the trial court offered and gave a curative jury instruction; and
(3) the relative strength or weakness of the State’s proof.” Id. at 547 (citing State v.
Smith, 893 S.W.2d 908, 923 (Tenn. 1994)).

      First, the State elicited the testimony from Deputy Bell. The following exchange
occurred during his direct examination:

       [State]: Okay. At that point, did either of them get out of the vehicle?

       [Deputy Bell]: [Defendant] got out for a minute and I asked him to sit back
       down. He said he wasn’t feeling real good.

At that point, counsel for Defendant objected for the first time. The trial court initially
overruled the objection and the questioning of Deputy Bell continued:

       [Deputy Bell]: He was - - he was trying to get back out of the vehicle and I
       asked him to sit back down when he said he wasn’t feeling good til[] the
       EMS could get there and make sure that they were both okay.

       [State]: Did he tell you anything about how the crash happened?

       [Deputy Bell]: He said he wasn’t real sure.
                                             -6-
        [State]: Okay. Did he - - did you ask him who was driving?

        [Deputy Bell]: I did.

        [State]: And what did he say?

        [Deputy Bell]: He said he was. He was sitting in the driver’s seat.

At that point, counsel for Defendant objected to Deputy Bell’s testimony for the second
time. The trial court held a jury-out hearing and determined that the testimony was
inappropriate because the State violated discovery.

        Second, the trial court offered and gave the following curative instruction to the
jury:

        I have determined that the law requires that I exclude from your
        considerations those portions of Deputy Bell’s testimony regarding
        statements allegedly made by the [D]efendant to Deputy Bell at the scene
        of the crash. The reason that I am sustaining that objection is that the
        defense was not given notice of the substance of those statements prior to
        Deputy Bell’s testimony here in court today, and that failure was a violation
        of the Rules of Criminal Procedure.

The trial court then individually polled the jurors to ascertain whether they could follow
the directive. Each juror confirmed that they would be able to follow the curative
instruction.

        On appeal, Defendant argues that the instruction given by the trial court was
inadequate because “[the testimony regarding Defendant’s statements] was so prejudicial
that the curative instruction issued by the Court was inadequate to ensure a fair trial.”
While juries are presumed to follow the instructions of the trial court, State v. Banks, 271
S.W.3d 90, 137 (Tenn. 2008); State v. Reid, 164 S.W.3d 286, 346 (Tenn. 2005), the
testimony from Deputy Bell that Defendant told him he was the driver of the vehicle, in
our view, prevented an impartial verdict. Defendant’s theory of the case was that he was
not the driver of the vehicle. We acknowledge that Defendant was seen by Deputy Bell
behind the wheel of the car at the scene of the crash, but at that time, the vehicle was on a
culvert off the road. The testimony of Deputy Bell herein, made before the jury, that
Defendant told him he was the driver of the vehicle was highly prejudicial, even though
the trial court admonished the jury not to consider it. Cf. State v. Climer, 400 S.W.3d
537, 570 (Tenn. 2013) (“[T]he defendant’s own confession is probably the most
probative and damaging evidence that can be admitted against him.”) (quoting Arizona v.
                                             -7-
Fulminante, 499 U.S. 279, 296 (1991)). Generally, erroneously admitted evidence will
not be a cause for reversal “unless real doubt is raised as to whether the judicial warning
against its consideration was effective.” Blankenship v. State, 410 S.W.2d 159, 160-61
(Tenn. 1966).

       It is only when evidence erroneously admitted in a criminal case is of such
       apparent weight and so prejudicial in effect that the judicial warning against
       it seems light and unavailing by comparison that the error remains uncured
       by striking it out.

Id. at 161 (quoting Looker v. United States, 240 F. 932, 935 (2d. Cir. 1917)). In the
words of counsel for Defendant, once Deputy Bell testified that Defendant told him he
was driving the vehicle, “[y]ou can’t unring that bell.” We are constrained to conclude
that the evidence erroneously admitted was prejudicial and that it affected the jury’s
verdict. Thus, the trial court improperly determined that there was not a manifest
necessity present and erred in refusing to grant a mistrial as there was “no feasible
alternative to halting the proceedings.” Knight, 616 S.W.2d at 596.

                                   II. Brady Violation

       Defendant argues that the State violated his right to due process as set forth in
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose an exculpatory statement
made by Ms. Reeves to Deputy Bell. At the hearing on the motion for new trial, Deputy
Bell testified that Ms. Reeves informed the officer that she was “sick and [Defendant]
was taking her to the doctor.” Deputy Bell admitted that he did not make a written report
of the statement but that he told Trooper Allen about the statement. During cross-
examination at the hearing on the motion for new trial, Deputy Bell claimed that he had
never been asked about statements made by Ms. Reeves until the hearing on the motion
for new trial. On appeal, Defendant argues that this statement was in the possession of
the State prior to trial, that the State failed to include it in response to his discovery
request, and that the statement was exculpatory, favorable, and material because it would
have supported a defense of necessity. The State argues that the trial court properly
determined that the evidence “was not exculpatory and that a defense of necessity would
not have been warranted.”

        “Every criminal defendant is guaranteed the right to a fair trial under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and the
“Law of the Land” Clause of Article I, section 8 of the Tennessee Constitution.” Johnson
v. State, 38 S.W.3d 52, 55 (Tenn. 2001). In the landmark case of Brady v. Maryland, the
United States Supreme Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
                                            -8-
prosecution.” 373 U.S. at 87. The duty to disclose extends to all “favorable information”
regardless of whether the evidence is admissible at trial. Johnson, 38 S.W.3d at 56.
Additionally, “the prosecutor is responsible for ‘any favorable evidence known to the
others acting on the government’s behalf in the case, including the police.’” Strickler v.
Greene, 527 U.S. 263, 275 n.12 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 437
(1995)). However, the State is not required to disclose evidence that the accused already
possesses or is otherwise able to obtain. State v. Marshall, 845 S.W.2d 228, 233 (Tenn.
Crim. App. 1992).

        There are four prerequisites a defendant must demonstrate in order to establish a
due process violation under Brady: (1) the defendant requested the information (unless
the evidence is obviously exculpatory, in which case the State is required to disclose the
evidence); (2) the State suppressed the information; (3) the information was favorable to
the accused; and (4) the information was material. State v. Edgin, 902 S.W.2d 387, 389
(Tenn. 1995). Moreover, the defendant has the burden of proving a constitutional
violation by a preponderance of the evidence. State v. Spurlock, 874 S.W.2d 602, 610
(Tenn. Crim. App. 1993). The key to proving a constitutional violation is to show that
the omission is of such significance as to deny the defendant the right to a fair trial.
United States v. Agurs, 427 U.S. 97, 108 (1976). Whether a petitioner is entitled to a new
trial based upon a Brady violation “presents a mixed question of law and fact.” Cauthern
v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004).

       The lower court’s findings of fact, such as whether the defendant requested
       the information or whether the [S]tate withheld the information, are
       reviewed on appeal de novo with a presumption that the findings are correct
       unless the evidence preponderates otherwise.           The lower court’s
       conclusions of law, however, such as whether the information was
       favorable or material, are reviewed under a purely de novo standard with no
       presumption of correctness.

Id. We shall discuss each element in turn.

                                1. Request for the evidence

        First, we must determine whether trial counsel requested the evidence or whether
it was obviously exculpatory, thereby triggering the State’s duty to disclose it. “When
the prosecutor receives a specific and relevant request, the failure to make any response is
seldom, if ever, excusable.” Agurs, 427 U.S. at 106, as modified by United States v.
Bagley, 473 U.S. 667, 667 (1985). Here, there is no direct evidence in the record that
trial counsel made a specific request for statements made by Ms. Reeves because the


                                             -9-
record does not contain the discovery request filed by Defendant.3 However, the
technical record does contain a motion in limine seeking to exclude any statements of
Ms. Reeves because she was unavailable as a witness at trial. There was also a fairly
extensive discussion about the discovery requests made by Defendant prior to trial during
Deputy Bell’s testimony. Even though the trial court quoted from a pre-trial discovery
motion during trial in a jury-out hearing, no such motion was entered as an exhibit or
appears in the technical record. Allegations contained in pleadings, counsel’s arguments
and statements of facts contained in an appellate brief, and counsel’s statements made in
open court are not evidence. See State v. Bennett, 798 S.W.2d 783, 789 (Tenn. Crim.
App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). The trial
court, however, noted that Defendant filed a routine discovery request. The evidence
does not preponderate against this factual finding. Cauthern, 145 S.W.3d at 599. Thus,
we determine that counsel made a request for the evidence.

                                  2. Suppression of the evidence

        Next, we must determine whether the State suppressed the evidence. As discussed
above, the record does not contain the discovery request filed by Defendant. However,
the trial court noted that a routine discovery request was filed and counsel for the State
confirmed that they had an open-file discovery policy. This Court has held that an open-
file discovery policy “does not discharge [the prosecution’s] affirmative duty under
Brady to disclose favorable, material evidence.” Jordan v. State, 343 S.W.3d 84, 98
(Tenn. Crim. App. 2011) (relying on Strickler, 527 U.S. at 238 n.23). In fact, “an
incomplete response to a Brady request may mislead the defense into thinking that certain
evidence does not exist,” Freshwater v. State, 354 S.W.3d 746, 760 (Tenn. Crim. App.
2011) (citing Bagley, 473 U.S. at 682-83), rendering a specific request for it during trial
even more unlikely. While the State is not required to disclose its entire file in order to
satisfy the requirements of Brady, see Bagley, 473 U.S. at 675, a defendant is “entitled to
rely on the [S]tate’s assertion that it provided him with its entire file,” Jordan, 343
S.W.3d at 98.

        In this case, there was nothing memorializing Ms. Reeves’s statements in the pre-
trial discovery provided to trial counsel, despite the State’s open-file discovery policy. In
fact, it appears that the statements were not disclosed until Deputy Bell testified to their
substance at the hearing on the motion for new trial. Deputy Bell explained that he had
“not been asked” about Ms. Reeves’s statements until the hearing on the motion for new
trial. Deputy Bell worked for the Perry County Sherriff’s Office and responded to the

       3
          While the record does not include a discovery request by Defendant as required by Rule 16 of
the Rules of Criminal Procedure, it does include an Arraignment and Scheduling Order signed by the trial
judge. This order indicates that the Defendant request discovery from the State “subject to disclosure
pursuant to Rule 16(a) of the Tennessee Rules of Criminal Procedure.” It is not signed by counsel for
Defendant.
                                                   -10-
scene in his capacity as a law enforcement officer. Because the State is responsible for
evidence known to others working on its behalf, see Strickler, 527 U.S. at 275 n.12;
Kyles, 514 U.S. at 437, we conclude that the State did suppress evidence.

                              3. Favorability of the evidence

        “Evidence ‘favorable to an accused’ includes evidence deemed to be exculpatory
in nature and evidence that could be used to impeach the state’s witnesses.” Johnson, 38
S.W.3d at 55-56. Favorable evidence includes evidence that “provides some significant
aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story,
calls into question a material, although not indispensable, element of the prosecution’s
version of events, or challenges the credibility of a key prosecution witness.” Id. at 56-
57. Favorable evidence also includes “‘information that would have enabled defense
counsel to conduct further and possibly fruitful investigation.’” Id. at 56 (quoting
Marshall, 845 S.W.2d at 233).

       The trial court determined that Ms. Reeves’s statement would have actually been
inculpatory rather than favorable to the defense. We agree. Defendant’s theory all along
was that he was not the driver of the vehicle, so Ms. Reeves’s statement did not provide
significant aid to the defense, call into question a material element of the prosecution’s
version of the events, or challenge the credibility of a key prosecution witness.
Moreover, the discovery of Ms. Reeves’s statement would not have led to further
investigation because Defendant obviously knew of Ms. Reeves’s existence and could
have spoken to her before she passed away. Upon our de novo review of the record, we
conclude that the statement of Ms. Reeves was not favorable to the defense.

                               4. Materiality of the evidence

        Evidence is considered material “only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the results of the proceeding would have been
different.” Bagley, 473 U.S. at 682. The defendant does not need to prove that
disclosure of the evidence would have resulted in an acquittal. See Kyles, 514 U.S. at
434. “Nor is the test of materiality equivalent to that of evidentiary sufficiency, such that
we may affirm a conviction or sentence when, ‘after discounting the inculpatory evidence
in light of the undisclosed evidence, the remaining evidence is sufficient to support the
jury’s conclusions.’” Johnson, 38 S.W.3d at 58 (quoting Strickler, 527 U.S. at 275).
Rather, the question is whether in the absence of the evidence, the defendant received a
fair trial, “understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514
U.S. at 434. The defendant must show that “the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998) (citing Edgin, 902
S.W.2d at 390). A reviewing court should evaluate the evidence “‘in light of the totality
                                            -11-
of the circumstances and with an awareness of the difficulty of reconstructing in a post-
trial proceeding the course that the defense and the trial would have taken had the
defense’ been made aware of the favorable information.” Spurlock, 874 S.W.2d at 619
(quoting Bagley, 473 U.S. at 683). In other words, “the materiality of the suppressed
evidence must be evaluated within the context of the entire record.” Jordan v. State, 343
S.W.3d 84, 97 (Tenn. Crim. App. 2011).

       The trial court found that the statement was not material. The trial court reasoned
that because Ms. Reeves did not seek medical attention after the accident and did not
“avail herself of the opportunities she had at the scene to get medical assistance,” her
statement about Defendant taking her to the doctor did not raise the defense of necessity
and was not material.

        Necessity as a defense acts to justify unlawful conduct in situations where “(1)
The person reasonably believes the conduct is immediately necessary to avoid imminent
harm; and (2) The desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought to be prevented by
the law proscribing the conduct.” T.C.A. § 39-11-609. The Sentencing Commission
Comments to this section caution that the defense of necessity applies only in those rare
situations where criminal activity is “an objectively reasonable response to an extreme
situation.” The Sentencing Commission provides the example of “a hiker, stranded in a
snowstorm, who spends the night in a vacant cabin rather than risking death sleeping in
the open” as a necessity defense to a charge of trespassing.

      At the hearing on the motion for new trial, the trial court determined that the
evidence did not fairly raise the defense of necessity. The trial court commented that:

      [b]ecause [the] court would not have instructed the jury of a necessity
      defense based on this statement, the statement is not exculpatory on a
      material point. The statement was neither material nor favorable to the
      Defendant as applied. The [c]ourt further finds that, on the balance, the
      inculpatory nature of the statement outweighs any exculpatory nature it
      may have had.

       While the alleged statement was not memorialized in writing or captured on video,
the alleged statement, that Defendant was taking Ms. Reeves to the hospital, does not
support a defense of necessity when viewed in light of the additional evidence available.
The alleged statement would place Defendant squarely behind the wheel of the car. The
medical proof showed that Defendant’s blood alcohol level was well above the legal
limit. The dashcam video from Trooper Allen’s vehicle depicts Trooper Allen talking to
Ms. Reeves. She does not ask about getting medical care, instead choosing to talk to
Trooper Allen about the vehicle registration and making arrangements for towing the
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vehicle from the scene. Ms. Reeves appears briefly on camera and does not appear to be
in need of immediate medical attention. She can even be heard telling Trooper Allen that
she does not know if she will go to the hospital. There is nothing in this dashcam video,
in our view, that would support a defense of necessity. Additionally, Ms. Reeves did not
seek medical attention at the scene and did not go to the hospital. Even if Ms. Reeves’s
statement would have caused the jury to completely discount the conclusion of the
officers that Defendant was merely an intoxicated driver and was not in the process of
taking Ms. Reeves to the doctor, it would not have cast “the whole case in such a
different light as to undermine confidence in the verdict.” Irick, 973 S.W.2d at 657. The
evidence is not material.

      Defendant has not established all four prerequisites to establish a Brady violation.
Consequently, he is not entitled to relief on this issue.

                                  III. Indirect Hearsay

       Lastly, Defendant argues that the trial court permitted testimony that violated both
hearsay rules and the Confrontation Clause. Specifically, Defendant complains about
Trooper Allen’s testimony that he learned from Ms. Reeves and Deputy Bell that
Defendant was the driver of the vehicle during the accident, arguing that the trial court
“permitted testimony in breach of a pre[-]trial ruling excluding such testimony.” The
State responds that Defendant failed to prepare an adequate record for our review.

       The following exchange occurred during the testimony of Trooper Allen:

       [State]: Okay. And based on your investigation, you testified that
       [Defendant] was the driver. Was that what you determined?

       [Trooper Allen]: Yes, I did come to the conclusion that he was the driver.

       [State]: Okay. And what was that conclusion based on?

       [Trooper Allen]: Statements that was told to me by the - - by the passenger
       and by the sheriff . . . .

Counsel for Defendant objected, arguing that the State was not permitted to use the
statements of the passenger. The trial court overruled the objection on the basis that the
witness had not said what the statements of the passenger were, but had only “testified
about his conclusion.”

        Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
                                           -13-
R. Evid. 801(c). Hearsay is generally inadmissible except as allowed by the rules of
evidence or other applicable law. Tenn. R. Evid. 802. The determination of whether a
statement is hearsay or fits within one of the narrow exceptions to the hearsay rule are
questions of law and subject to a de novo review by this Court. Kendrick v. State, 454
S.W.3d 450, 479 (Tenn. 2015). A trial court’s failure to exclude inadmissible hearsay
evidence is subject to a harmless error analysis. See State v. Long, 45 S.W.3d 611, 624
(Tenn. Crim. App. 2000). Harmless error does not require reversal unless “error
involving a substantial right more probably than not affected the judgment or would
result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).

        Indirect hearsay, a way to “get in hearsay through the back door,” is still
inadmissible hearsay unless it fits within the hearsay exceptions. See Neil P. Cohen, et
al., Tennessee Law of Evidence, § 8.01[11][b] (6th ed. 2011). In State v. Robert Spencer,
No. W2014-02454-CCA-R3-CD, 2016 WL 325460, at *4-5 (Tenn. Crim. App. Jan. 27,
2016), perm. app. denied (Tenn. June 24, 2016), this Court explained indirect hearsay. In
Robert Spencer, a drug task force agent testified that “the house [on Olympic Street] and
the [d]efendant matched the descriptions provided by the source.” Id. at *4. This
testimony, in conjunction with the agent’s testimony about his background in narcotics
investigations, effectively “allowed the jury to learn what the source told [the agent], that
the [d]efendant was selling cocaine from the house on Olympic Street.” Id. In other
words, the agent’s testimony “relayed the hearsay statements of the source.” Id.

       This [C]ourt has previously held that “a police officer’s testifying to an out
       of court statement to explain his actions” is not hearsay but cautioned that
       “in most situations the details of information obtained through a
       confidential informant should not be admitted at trial.” State v. Brown, 915
S.W.2d 3, 6 (Tenn. Crim. App. 1995). Instead, “testimony that [the officer]
       acted ‘upon information received,’ or words to that effect, should be
       sufficient” to explain the officer’s actions. Id. (quoting McCormick on
       Evidence § 249, at 104 (4th ed. 1992)).

Id. at *5. This Court went on to conclude that the testimony in Robert Spencer was
hearsay and that the trial court erred in admitting testimony that the house and the
defendant in the house matched the descriptions provided by the confidential informant.
However, the Court determined that the admission of the hearsay was harmless in light of
the strong circumstantial evidence of guilt presented by the State. Id.

       Using that rationale in the case herein, we conclude that Trooper Allen’s
testimony that Defendant was the driver based on “statements” made by Ms. Reeves was
indirect hearsay. Trooper Allen testified that he made the determination that Defendant
was the driver of the vehicle based not on his own personal observations but rather on the
statements of Ms. Reeves, statements which Defendant sought to exclude prior to trial.
                                            -14-
Ms. Reeves, much like the confidential informant in Robert Spencer, did not testify at
trial. As the parties stipulated, Ms. Reeves died shortly after the incident. The proof
establishing that Defendant was the driver was largely circumstantial. No one testified
that they actually saw Defendant driving the vehicle at the time of the crash. In fact, the
only testimony that Defendant was the driver of the vehicle came from improperly
admitted testimony during Deputy Bell’s direct examination. In our view, therefore, the
admission of the indirect hearsay, especially when combined with the improperly
introduced testimony from Deputy Bell discussed above, more probably than not affected
the judgment. Therefore, the admission of the evidence could not be harmless.

                                       Conclusion


      For the foregoing reasons, the judgments of the trial court are reversed and
remanded.


                                             ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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