Session: February 6, 2014.
[Copyrighted Material Omitted]
Tenn. R. App. P. 11 Appeal by Permission from Denial of Rule 9 Application; Judgment of the Trial Court Reversed; Case Remanded to the Trial Court. Appeal by Permission from the Court of Criminal Appeals. Circuit Court for Montgomery County. No. 41001277 John H. Gasaway, III, Judge.
Judgment of the Trial Court Reversed; Case Remanded to the Trial Court.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; James E. Gaylord and Michelle L. Consiglio-Young, Assistant Attorneys General; John W. Carney, District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellant, State of Tennessee.
Gregory D. Smith (on appeal) and Edward DeWerff (at trial), Clarksville, Tennessee, for the appellee, Barry D. McCoy.
GARY R. WADE, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.
GARY R. WADE, J.
The defendant was indicted for seven counts of rape of a child. Prior to trial, the State sought permission to offer as evidence a video-recorded statement made by the child victim to a forensic interviewer. At the conclusion of a pre-trial hearing, the trial court refused to allow the video-recorded statement as proof at trial. We granted the State an interlocutory appeal to determine whether Tennessee Code Annotated section 24-7-123 (Supp. 2014) violates the separation of powers, whether the video-recorded statement qualifies as inadmissible hearsay evidence, and whether the use of the statement at trial would violate the defendant's right to confront witnesses. Because section 24-7-123 does not unconstitutionally infringe upon the powers of the judiciary and is a valid legislative exception to the general rule against the admission of hearsay evidence, the ruling of the trial court is reversed and the cause is remanded for trial. The State will be permitted to offer the video-recorded statement as evidence at trial, provided that the evidence is relevant and otherwise comports with the requirements of section 24-7-123 and the Tennessee Rules of Evidence.
I. Facts and Procedural History
On November 2, 2010, Barry McCoy (the " Defendant" ) was indicted for seven counts of rape of a child victim (the " Child" ) in violation of Tennessee Code Annotated section 39-13-522 (2014). Two weeks before the scheduled date of trial, the State provided the Defendant with notice of its intent to offer as evidence a video recording of a statement made by the Child to a forensic interviewer pursuant to Tennessee Code Annotated section 24-7-123 (Supp. 2014), a statute which purports to authorize such a statement to be introduced as evidence at trial, but only when certain requirements are met.
The Defendant objected to the admission of the video recording, and, after consideration, the trial court denied the State permission to introduce the evidence on three grounds: (1) the legislature had " overstepp[ed] its constitutional bounds" because the enactment of Tennessee Code Annotated section 24-7-123 intruded upon the inherent authority of the judiciary to regulate the admissibility of evidence; (2) the content of the video recording qualified as hearsay evidence not otherwise admissible under any of the exceptions set out in the Tennessee Rules of Evidence; and (3) because article 1, section 9 of the Tennessee Constitution provides that " in all criminal prosecutions, the accused hath the right . . . to meet the witnesses face to face," extending even greater rights than the Confrontation Clause of the United States Constitution, the admission of the video recording would violate the Defendant's right to confront witnesses. In making this ruling, the trial court assumed
that the State had complied with each of the conditions set out in section 24-7-123.
After denying admission of the video recording, the trial court granted the State's request for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Criminal Appeals granted the appeal but remanded for further proceedings based upon the following rationale:
[T]he trial court . . . ruled on the constitutionality of [Tennessee Code Annotated section 24-7-123] without having reviewed the video recording or [having] consider[ed] whether the recording would qualify for admission under the statute. The parties did not stipulate that the video recording satisfied the statutory requirements or that the recording was admissible only via the terms of [the statute]. The [trial] court should not have passed on the statute's constitutionality without having first determined whether [the statute] was . . . applicable to this case. If the video recording does not satisfy the statutory prerequisites embodied in . . . section 24-7-123, then the constitutionality of the provision is moot. Similarly, if the video qualifies for admission into evidence at trial under another evidentiary rule, determining the constitutionality of section 24-7-123 as a vehicle of admission would be unnecessary. Also, if the [trial] court rules that the video recording is nevertheless inadmissible via the discretion afforded . . . by . . . section 24-7-123, the court would not reach the issue of the statute's constitutionality. Each of these scenarios underscores the prematurity of the trial court's ruling in this case.
Because the trial court failed to first determine the statute's applicability in this case, the constitutional challenge is not yet ripe for review.
State v. McCoy, No. M2011-02121-CCA-R9-CD, 2012 WL 1941775, at *4 (Tenn. Crim. App. May 30, 2012) (citation omitted).
On remand, the trial court held a pre-trial evidentiary hearing to address the admissibility of the video recording within the specific requirements of Tennessee Code ...