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State v. Davidson5/12/2000
thel Ray Hill, Sr., the male victim's father, testified that the defendant purchased a 30-06 rifle, with some live cartridges, from Bud Hill at the Hill's residence earlier that day. Hill, Sr., went inside his home, leaving Bud Hill with the defendant at Hill, Sr.'s vehicle. Hill, Sr., never saw his son again.
Ricky Davidson, the defendant's young nephew, testified that on August 27, 1995, he was visiting at his grandfather's home. The defendant lived with his father, Ricky's grandfather. While there, Ricky overheard the defendant and an unidentified man talking about a shooting. Ricky thought that the men were arguing. Later that night, after returning home, Ricky testified that he overheard his grandfather telling his father that he, the grandfather, had heard two gunshots and that the defendant had apparently shot "at them people." On cross examination, Ricky indicated that the officers had pressured him regarding his statement to the police. In response to the allegations of coercion, the state successfully moved to play the tape-recording of that interview for the jury. Deputy Nicholas, whose wife is distantly related to the Davidsons, testified that he talked with Ricky before the interview to calm and comfort him.
At a jury-out hearing, Cosby Davidson, the defendant's father, told the judge, under oath, that he had no recollection of an October 11, 1995, interview with investigators. Cosby further failed to recall his preliminary hearing testimony on November 16, 1995. The state produced a transcript of the hearing, and Cosby said that he could not read it. The trial court allowed the state to play a videotape of the preliminary hearing. This videotape contained an audiotape of the October 11 interview. At the preliminary hearing, after hearing the tape, Cosby affirmed its contents.
In the audiotaped interview played for the jury, Cosby stated that the defendant, a second man, and a woman were at Cosby's residence on a Sunday night. Cosby stated that the killings took place near his residence and that he heard two shots. Cosby also said he went out on his porch and saw the defendant load the bodies in the car. During the interview, he identified the male victim as Bud Hill. Cosby then stated he went to Billy Davidson's residence and told Billy about the shooting.
ANALYSIS
We address the evidentiary issues asserted by the defendant before discussing the sufficiency of the evidence and the issues regarding a fair and impartial jury and sentencing.
Admission of Evidence
Cosby Davidson
At trial, Cosby Davidson, the defendant's father, recalled neither his October 11 interview with investigators nor his preliminary hearing testimony. Therefore, the trial court admitted a tape of the preliminary hearing examination that comprised a recorded statement of the interview as prior testimony from an unavailable witness. See Tenn. R. Evid. 804(a)(3),(b)(1). The defendant asserts that the admission of the tape of the preliminary hearing constituted error. The defendant specifically asserts that:
(1) Cosby's availability at trial precluded admissibility through Rule 804(b)(1);
(2) the witness was not questioned about his memory of the events contained in the October 11 interview tape; and
(3) the recorded statement was, at best, a prior inconsistent statement, with use limited to impeachment, and as such should not have been passed as an exhibit to the jury.
Former testimony of unavailable witness is not excluded from evidence by the hearsay rule if:
1. The testimony was given at another hearing on the same or on a different matter; and
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