Appeals court hears challenge to use of TBI offender report after officer's retirement in Mr. Cheers case

Appellate judges heard competing arguments over whether statements in a Tennessee Bureau of Investigation (TBI) offender-registry report violated Mr. Cheers' Sixth Amendment right to confront witnesses when the author of the report, Officer Evelyn Stigler, did not testify at trial.

Appellant's counsel told the court that Stigler prepared the report to "show through documentation and testimony that the defendant Mr. Cheers' conduct resulted in a violation of TCA 40-39-208 and TCA 40-39-203," and that the report was incorporated into the affidavit of complaint used to initiate prosecution. The defense urged reversal of the conviction or, in the alternative, remand for a new trial because the state relied on testimonial hearsay without offering the author for cross-examination.

The issue centers on whether the statements in Stigler's report were "testimonial" under Crawford v. Washington and related Tennessee precedent, and on whether the confrontation objection was preserved for appellate review. Appellant's counsel said Stigler authored and used her report to initiate prosecution and that the state later relied on a surrogate witness, Millicent Mann, who testified she had no personal knowledge of the investigation. "She didn't have any personal knowledge about the investigation," counsel said of Mann.

Katie Neff, arguing for the state, told the panel the defendant waived plenary review by failing to fully develop the confrontation argument at trial and that plain-error review therefore applies. Neff said Tennessee law requires a specific enough trial-court objection to put the parties on notice and give the trial court an opportunity to avoid error. The state also argued there is no Tennessee case squarely holding that TBI offender reports of this sort are categorically barred by Crawford and that the law on what is "testimonial" remains unsettled.

Counsel for the defense responded that trial counsel did assert a right to confront the witnesses as soon as he learned the expected witness would not appear, that the trial court denied relief but recorded that the issue was preserved for appellate review, and that the supervisor called by the state functioned only as a conduit for Stigler's statements rather than providing testimony based on personal knowledge.

At oral argument the judges questioned both sides about waiver, the sufficiency of the trial-level objection, the relevance of Tennessee precedents including State v. Hutchison, and U.S. Supreme Court decisions such as Williams v. Illinois and Crawford v. Washington. Appellant's counsel urged the appellate court to review the claim de novo, saying the report's stated purpose—to establish facts for prosecution—satisfied the Hutchison test's first prong and that the report's use as the basis for an affidavit of complaint emphasized its prosecutorial purpose.

The court took the matter under advisement. No decision was announced during the argument session.