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State v. Garrett12/1/2005
the trial court employ its contempt power to compel a response precluded the opportunity of the trial court as an observer of the witness' demeanor to pass on the issue. See Tenn. R. App. P. 36(a) (" elief may not be granted [on appeal] in contravention of the province of the trier of fact."). Accordingly, in the case presented to us, we hold that the defendant waived the issue of whether Mr. Miller's evasiveness denied the defendant his right of confrontation.
VI. Witness Expense for Testimony at Hearing on Motion for New Trial
In a related issue, the defendant requested the trial court to approve an expense disbursement to cover the cost of David Miller traveling to Davidson County from Florida to testify in the hearing on the motion new trial. The defendant now claims in a supplemental brief that the trial court's denial of this request was error. In his brief, the defendant argues that David Miller's testimony in the motion for new trial hearing was necessary and material because, in the hearing, Mr. Miller "would have been compelled to answer the question under oath as to how evidence [taken from the floor near the baseboard] was collected." The defendant asserted in his brief that Mr. Miller testified in the first trial that he collected this material sample, that Cooper testified in the second trial that Cooper had collected the sample, and that in the hearing on the motion for new trial, Mr. Miller "should have been compelled to answer questions under cross-examination as to who was telling the truth and who was committing perjury." The defendant argues that the denial of the witness-expense funding was a denial of due process of law.
The trial court, however, denied the motion on the grounds that (1) Mr. Miller's presence in the motion for new trial hearing was unnecessary, (2) the defense did not seek to compel Mr. Miller's responses during his trial testimony, and (3) the trial court had no statutory authority to approve funding for the attendance of an out-of- state witness at a hearing on a motion for new trial. Predictably, the state posits that the trial court was correct as to any and all of its bases for denying the motion.
First, we dispose of the constitutional basis for citing as error the denial of the funding motion. The defendant cited to this court no authority for the proposition that the denial of the motion deprived him of due process of law. Tennessee Court of Criminal Appeals Rule 10(b) mandates that, in this situation, the issue "will be treated as waived in this court." Tenn. Ct. Crim. App. R. 10(b).
Second, the defendant has offered no argument based upon statute, rule, or caselaw that the trial court erred in denying the motion. Therefore, his claim is waived pursuant to Rule 10(b), as well. At any rate, Tennessee Rule of Criminal Procedure 17(b) provides:
The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.
Tenn. R. Crim. P. 17(b) (emphases added). The trial court recited as one of its bases for denying the motion that the defendant had not shown that Mr. Miller's testimony was necessary. As an aside, we agree with the trial court that the significance of Mr. Miller's proposed testimony is counter-indicated by the defendant's failure to elicit further testimony from Mr. Miller when it had him on the witness stand at trial. The bottom line is, however, that the defendant has made no showing that the trial court abused its discretion in disall
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