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State v. Garrett12/1/2005
ful effect of an error."). Even if not waived, the issue affords the defendant no relief. Evidence Rule 702 addresses the admissibility of expert testimony and the trial court's role in considering whether such testimony may be presented to the jury. The rule does not instruct the jury how to consider the expert testimony, and the trial court was careful in this case to advise the jury:
Merely because an expert witness has expressed an opinion does not mean, however, that you are bound to accept this opinion. The same as with any other witness, it is up to you to decide whether you believe this testimony and choose to rely upon it.
V. Confrontation and Compulsory Process Issues
A. Cross-examination of David Miller
The defendant claims that the trial court denied him the constitutional right to confront adversary witnesses when David Miller "refused to answer questions propounded to him by the defense." The defendant refers to Mr. Miller's responses to three questions asked during cross-examination. To a question about how Agent Cooper collected a piece of the bedspread, Mr. Miller responded, "I would prefer that to be Mr. Cooper's answer, sir." When asked about Agent Cooper's collection of liquid from a jug of kerosene, Mr. Miller responded, "You'll have to ask Mr. Cooper, sir." Finally, Mr. Miller said, "You will have to ask Special Agent Cooper" when asked about Agent Cooper's collection of evidence from under a baseboard. The defendant ascribes to the witness and the prosecution sinister motives in responding in the above fashion, based upon the defendant's claim that, in the first trial, Mr. Miller testified that he collected the three samples of evidence.
The state counters that the defendant has waived appellate review of the issue because the defendant failed to object to the witness' claimed evasion and failed to seek contemporaneous redress from the trial court. We agree.
One can infer from Mr. Miller's responses cited by the defendant that the witness' knowledge on the subjects presented was inadequate for informative answers. In our view, the defendant's belief that the responses were in conflict with prior testimony was subject to exploration via cross-examination. See Tenn. R. Evid. 613. His claim that the responses were evasive likewise could have been explored by cross-examination, but if the defendant wishes to claim on appeal that the witness' evasion equated to a denial of his right of confrontation, we think more was required than to merely allow the witness to evade. See Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294 (1985) (" he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way . . . .") (emphasis in original).
The defendant should have established that the claimed evasion was tantamount to a denial of the right of confrontation by objecting and seeking the court's aid in compelling the witness to respond. See Tenn. R. Crim. P. 17(a) (providing that subpoena power embraces power to command witness to "give testimony"); id. 17(g) ("Refusal by any person without adequate excuse to obey a subpoena . . . may be deemed a contempt of the court . . . ."); Tenn. R. Evid. 611 (empowers trial court to "exercise appropriate control over the presentation of evidence and conduct of the trial"). In the absence of a challenge to the witness' responses, we cannot discern whether the responses were merely grounded in lack of knowledge or were evasive to the point of denying the defendant the opportunity for effective cross-examination. More importantly, the failure to challenge the responses by objection or by a request that
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