. 1 1 1 IN THE CRIMINAL COURT FOR KNOX COUNTY *ii ii D111-WE itiziaiaz Pri 3= ta STATE OF TENNESSEE, cunt court niorvritr. is v. Na. 92973 A5 . JAYSON M. BAILEY, Alias, ANSVVER TO MOTION TO RECONSIDER Cornes the State of Tennessee, by and through the District Attorney General for the Sixth Judicial District, and says the Defendant's Motion To Reconsider should be denied. The Court's decision not to admit the record frorn the "Chiprnan Street" case as evidence in support of Defendant's Motion For New Trial over the State's objections is amply Supported by applicable law. Contrary to the Defendant's argument, the Tennessee Rules of Criminal Procedure and Rules of Evidence provide no authority for the Defendant's unusual request. In fact, Tennessee law specifically prohibits the Defendant's proposed maneuver. The Court should reaffirm its decision that the defendant bears the burden of establishing a factual and legal basis for granting a new trial in a contested hearing. I. State's Reason For Not Stipulating The Defendant requests the Court to take judicial notice of the record in State V. Letalvis Cobbins, et al., Knox County Docket No. 86216 (the "Chiprnan Street caSe"). In particular, he requests the Court take judicial notice of certain portions of the TBI Investigative Record pertaining to former criminal court judge Richard Baumgartner. This record was relied upon by Judge on Kerry Blackwood when he granted new trials to the four defendants in the Chiprnan Street case on December 1, 2011. The State's Objects to the admission of the Chipnian Street record in the present case because it is critical that the litigation sternrning from Baurngartnefs resignation be handled in a deliberate manner that fairly and accurately examines the credible and relevant facts. lt is not, as the Defendant suggests, a way for the State to favor one defendant over another. The TBI Record introduced in the Chipman Street hearing on December l, 2011 was admitted pursuant to a stipulation between the State andthe defendants. At the time it entered into the stipulation, the State asserted then, and still believes, that the controlling law requires some connection between Baumgartnefs alleged misconduct and the handling of the trial in question before a jury' verdict would be overturned. Because the state was convinced the TBI record provided no such connection and the defense was not offering any evidence outside the TBI record, the State was willing to stipulate to the admission of the TBI record to expedite the hearing and quickly put the issue to rest. It was not a stipulation that the TBI record was relevant or that the allegations made therein were accurate. The original Chiprnan Street trials were fair. Indeed, at the time the State entered into the stipulation, Judge Blackwood had already rejected Letalvis Cobbins's other legal challenges to the trial record and noted that he could not find that Bauingartner "was in any way impaired or not capable of discharging professional responsibilities that were required of hirn as trial judge." Regardless of what was going on with Baumgartner in his personal life, the State was, and remains, confident that the former judge had given the Chipnian Street defendants fair trials. Surprisingly to the State, Judge Blackwood disagreed with the State's understanding of the law and relied heavily on untested allegations contained in the TBI record to overturn the Chipnian Street verdicts. Furtherrnore, in considering these untested allegations, Judge Blackwood misunderstood what the TBI record actually said, particularly as to the chronology of events. Beyond this misunderstanding, Judge Blackwood made findings as to the meaning of medical information on addiction and the effect of prescription drugs that should only properly be considered in light of expert medical testimony. The State is prepared to present expert evidence contrary to those findings. 2 . Vtfhile there still may be specific matters on which the State and the Defendant in this matter may agree, the State cannot agree to any future stipulations similar to the one it agreed to in the Chipman Street hearing. Nor does the defendant or the Court have the right to force such a stipulation on the State. See State v. West, 767 387, 394 (Tenn. are a matter of mutual agreement and not a matter of right by one party or the other in an adversary State v. Morris, 641 883, 889 (Tenn.l982)). From the State's perspective, it is crucial that the evidence on this issue be tested and considered in more detail by weighing the credibiliy of live witnesses. The veracity of some testimony may be challenged. Further details will need to be developed - particularly with regard to timing and medical issues surrounding Baumgartner's use of prescription drugs. The Court is likely to find that some conduct occurred well after the trial in question and, thus, cannot provide a basis for overturning a jury's decision. Also, the Court is likelty to find expert testimony helpful on the effects, or lack of effects, of certain levels of medication in determining Whether or not Baurngartner was able to capably the handle the matters before him. In short, if the allegations in the TBI record are to be consideredjelevant to the issue at hand, the State seeks the opportunity to: (I) verify the credibility of witnesses; (2) explore the effect of medications used by Baumgartner through qualified experts; (3) place the evidence in its proper chronological order and context; and (4) present other relevant evidence not included inthe TBI report. II. Tenn. R. Evid. 902(4) Perhaps being unaware of these legitimate concerns, the Defendant in the present case seeks to shortcut a contested evidentiary and proceed straight to the Court's ruling. cites Tenn. R. Evid. 902(4) as grounds to admit the Chiprnan Street record as "substantive evidence". Rule 902(4) provides that certified copies of public records are self-authenticating. The problem with Defendant's argument is that authentication and admission are two different things, as the following excerpt from Tennessee Laws on Evidence explains: 3 Authentication--establishing that an item is what it is claimed to be--is one essential step toward admissibility of the item. However, as the philosophers would say, it is a necessary step but not a sufficient step. The remaining rules of evidence and all other applicable laws must also be satisfied before the item is admissible into evidence. For example, assume a criminal accused made a written confession which the prosecution wants to introduce into evidence. While the prosecutor may be able to authenticate the document as that Written by the accused at the police station on January 3rd, the document will only be admitted if it also satisfies the hearsay rule and the applicable constitutional guarantees, such as the Fifth, Sixth, and Fourteenth Amendments. Neil P. Cohen, et al., Tennessee Laws ofEvfdenee (6th Ed. 2011). In this case, While the record sought to be introduced may be self-authenticating (it is the TBI record that it purports to be), it is still almost entirely rank hearsay. Consequently, it cannot be accepted into evidence simply because it is authentic. State v. Frantz, 1998 Tenn. Crim. App. LEXIS 164, 18-19 (Tenn. Crim. App. Feb. 6, l998)(Divorce decree that satisfied Rule 902(-4) as self-authenticating and Rule 1005 as public record still considered hearsay and deemed inadmissible); Gray v. Roten, 2011 Tenn. App. LEXIS 14 n.6 (Tenn. Ct. App. Jan. 18, is well settled that police reports are inadmissible l\/IcBee v. Williams, 56 Tenn. App. 232, 238 (Tenn. Ct. App. 1966) and Tenn. R. Evid. 803(8), Advisory Con1m'n Tenn. R. Crim. Proc. 33 The Defendant's citation to Tenn. R. Crim. Proc. 33 likewise fails to support his request to admit the TBI record as evidence over the State's objections. Rule 33 provides that affidavits may be filed with the motion for new trial and "[t]he court shall consider any such affidavits as evidence." Tenn. R. Crim. Proc. However, the TBI record is not in affidavit form nor have the statements within the record been provided under oath. Even if TBI Special Agent Darren Dearmond, the lead investigator who prepared the TBI record, provided an affidavit, he could not swear to the veracity of the witnesses. His oath would be limited matters within his 4 own personal knowledge. State v. Hart, 911 371, 375 (Tenn. Crim. App. 1995) rnust have personal knowledge of the statements contained inthe affidavit?) (citing State v. Byerley, 658 134, 141 (Tenn. Crini. App.) More irnportantly, even if the allegations contained in the TBI record were somehow incorporated into proper affidavits, Tennessee law is clear that affidavits submitted in support of a motion for new trial are only exhibits to a motion and require additional proof by the moving party before a rnotion for new trial can be granted. _See Hicks v. State, 571 849, 852 (Tenn. 1978); State v. Murray, 1998 Tenn. Crirn. App. LEXIS 1323, 65-66 (Tenn. Crim. App. Dec. 30, 1998). For example, in Hicks, the defendant introduced the affidavit of a payroll clerk challenging the testimony ofa key witness at trial. 571 at 852. The appellate court rejected the defendant's attempt to obtain a new trial by way of an affidavit instead of live testimony: A motion for a new trial is only a pleading. An affidavit, such as the one in this case, is merely an exhibit to such motion. To show the existence of this evidence, proof must be offered by the moving party. To grant relief on affidavits only would deny the opposing party an opportunity to test the accuracy or veracity of the information contained therein by confrontation or by evidence contrary to this assertion. The trial judge properly denied the motion for a new trial on this ground. Ld; The Defendant in this case cannot hammer the square peg of this TB1 record through the round hole of Tenn. R. Crirn. Proc The TBI record is not in affidavit form. More importantly, under Tennessee law, even if it was in the forrn of affidavits, it could not serve as the basis for granting a new trial. IV. Judicial Notice The Defendant has also suggested that the Court could simply take judicial notice ofthe TBI record introduced in the Chiprnan Street case. Judicial notice of facts is governed by Tenn. 5 R. Evid. 201. Rule 201(b) and its identical federal counterpart make clear that a court can only take judicial notice of a fact that is "not subject to reasonable dispute." (emphasis added). See also State v. Lawson, 291 864, 871 (Tenn. 2009)(Court could take judicial notice of prior indictment because its pendency was not subject to reasonable dispute at the time it was superseded and dismissed); Cantrell v. Knoxville Community Dev. Corp., 60 F.3d 1177, 1180 (6th Cir. Tenn. instability of lawyer, even if unquestioned and widely known within the jurisdiction, is not proper fact for judicial notice - reasonable professionals can disagree as to an individual's mental state.); GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1083 (7th Cir. Ill. l997)(lf a court takes judicial notice of a fact found in a separate proceeding whose application is in dispute in the present proceeding, the court removes appropriate weapons of a fair trial from the parties and "raises doubt as to whether the parties received a fair Weeks v. Scott, 55 F.3d 1059, 1063 (Sth Cir. Tex. 1995)(Trial court properly refused to take judicial notice of whether HIV could be transmitted through saliva because issue not free from reasonable dispute.); Maynard v. Mingo Coungg, 2008 U.S. Dist. LEXIS 78453, 9-10 (E.D. Ky. Oct. 6, 201 does not apply where the parties dispute the facts sought to be judicially noticed even where another court previously ruled on those facts.") In this case, many of the alleged facts in the TBI record are very much the subject of reasonable dispute. Consequently, taking judicial notice of the TBI record and accepting the allegations therein as evidence over the State's objections would expand the parameters of judicial notice beyond anything seen before and raise grave doubt as to whether the State received a fair hearing. V. Conclusion In light of the foregoing, the State respectfully requests the Court deny the Defendanfs motion to reconsider and affirm its prior ruling that the defendant bears the burden of establishing a factual and legal basis for receiving a new trial in a contested hearing 6 RESPECTFULLY SUBMITTED, RANDALL. E. NICHOLS DISTRI 4 ll I EY GENERAL BY: I H. ORTON. DISTRICT ATTORNEY MU LELAND L. PRICE, 018853 ASSISTANT DISTRICT ATTORNEY CERTIFICATE OF SERVICE This is to certify that a true and exact copy ofthe foregoing document has been sent by electronic mail or has been placed in the U.S. Mail with sufficient postage thereon to the attorney forthe Defendant, Gregczy P. Isaacs, P.O. Box 2448, Knoxville, TN 37901-2448, this the 31 day of January, 2012. BY: LELAND L. PRICE ASSISTANT DISTRICT ATTORNEY 7