State v. Dubose ( 1997 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE, ) For Publication
)
Plaintiff-Appellee, ) Filed:
)
v. ) Williamson County
)
JAMES DUBOSE, ) Hon. Henry Denmark Bell, Judge
)
Defendant-Appellant. ) No. 01-S-01-9602-CC-00029
DISSENTING OPINION
FILED
September 29, 1997
Cecil W. Crowson
The majority concludes that before the narrower test of
Appellate Court Clerk
Tenn. R. Evid. 404(b)1 may be applied to other crime evidence,
there must be proof that the other crime was committed by the
defendant. With this conclusion I agree. Our point of difference
is: in the absence of such proof the majority would apply the
broader test of relevancy of Tenn. R. Evid. 4012 and 402.3 Because
I do not agree with the latter application, I respectfully dissent.
1
Rule 404 provides:
(b) Other Crimes Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity with the character
trait. It may, however, be admissible for other purposes.
2
Rule 401 provides:
“Relevant evidence” means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.
3
Rule 402 provides:
All relevant evidence is admissible except as provided by the
Constitution of the United States, the Constitution of Tennessee,
these rules, or other rules or laws of general application in the
courts of Tennessee. Evidence which is not relevant is not
admissible.
Under the majority’s reasoning, Rule 404(b) does not
apply to the evidence of prior stomach injuries because the stomach
injuries are not explicitly attributable to the defendant. Rather,
the majority finds this evidence relevant to cause of death. The
child died from a blow to the stomach, which caused internal
bleeding, which led to death. The fact that scarring in the
stomach cavity magnified the effect of the blow is, at best,
slightly probative of the cause of death. Nevertheless, the trial
court admitted extremely prejudicial evidence of the prior stomach
injuries. The medical examiner testified that the child had
“repeated” injury to the stomach, and she testified that the prior
stomach injuries had been caused by a “very significant force.”
One purpose of this testimony was to imply that the defendant
operated the “very significant force.” Even if that was not the
purpose for admission of the evidence, it was most certainly the
result. Because this testimony implicates the defendant, it is
evidence of prior acts under Rule 404(b) and should be measured
against the standard provided therein.
To hold Rule 404(b) inapplicable in this case permits an
“end run” around the general prohibition against prior crime
evidence. In many instances, the connection between the prior
crime and the defendant is the very reason the prosecution seeks to
introduce the evidence. If Rule 404(b) were to apply only when the
evidence in question specifically identifies the defendant as the
person responsible, all the prosecution would need to do is be
ambiguous and less forthright. If evidence that the defendant
previously struck the victim is inadmissible because it is
2
propensity evidence, the prosecution need only adduce proof of the
resulting injury, without naming the defendant, and invite the jury
to draw its own conclusions. This result is not the intent of Rule
401, 402, or 404.
The majority also found the prior stomach injuries
relevant because they demonstrate that the injuries were caused
intentionally and not accidentally. However, this finding
contradicts the previous finding that the evidence does not
identify the defendant, rendering Rule 404 inapplicable. If the
evidence neither identifies nor implicates the defendant, it can
not possibly be probative of the defendant’s intent or lack of
accident.
The medical examiner also testified about prior injuries
inflicted about the victim’s body other than the stomach injuries.
Because these injuries did not contribute to the victim’s death, I
am at odds with the majority’s conclusion that such evidence was
probative of the cause of death. Rather, the injuries indicate
that someone had regularly abused the child. The obvious inference
is the defendant was that someone. This evidence is clearly other
crime evidence that should be governed by Rule 404(b).
In my view, the admissibility of all testimony regarding
prior injuries is governed by Rule 404(b). The evidence of prior
injuries tends to show that the fatal injury was inflicted by the
defendant only by showing that he had a propensity to abuse the
child. Because evidence of these injuries amounted to proof that
3
the defendant acted in conformity with previous conduct, in my
opinion it is irrelevant and inadmissible.
According to Rule 404(b), “Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity with the character
trait. It may, however, be admissible for other purposes.” Only
in an exceptional case is another crime arguably relevant to an
issue other than the accused’s character. Rule 404 advisory
commission comment; State v. Luellen, 867 S.W.2d 736, 740 (Tenn.
Crim. App. 1992). Such exceptional cases occur when the prior act
is relevant to identity (including motive and common scheme or
plan), intent, and rebuttal of mistake or accident if asserted as
a defense. Rule 404 advisory commission comment; State v. McCary,
922 S.W.2d 511, 514 (Tenn. 1996). None of the exceptions are
present in this case.
First, the accident exception to Rule 404(b)’s
exclusionary rule is not relevant. Prior bad acts may be
admissible to disprove accident only if the defendant has asserted
accident as a defense. Tenn. R. Evid. 404 advisory commission
comments; McCary, 922 S.W.2d at 514. The defendant has not
asserted accident as a defense because he has not claimed that he
inflicted the fatal injury by accident. The defendant chose not to
testify, but the substance of state and defense witness testimony
reveals his defense: that he did not inflict the injury at all.
Apparently, the defendant’s theory is that the fatal injury must
have occurred in a manner totally unrelated to the defendant--by
4
someone else’s actions, whether accidental or intentional. When
prior acts are admitted to disprove the defendant’s assertion that
he is wholly innocent, the only purpose those prior acts can serve
is to show that since he did it before, he must have done again.
This result is precisely what Rule 404(b) seeks to avoid.
Second, identity is not relevant here. Like the
defendant in McCary, the defendant had a close relationship with
the victim. Because the defendant has denied committing all of the
acts charged, the question is not one of the defendant’s identity.
Instead, it is a question of his guilt or innocence. See McCary,
922 S.W.2d at 514. Furthermore, evidence of prior acts should be
admitted to prove identity only when the acts are so similar in
detail as to amount to a signature. Here, none of the injuries are
similar enough to be the unique signature of one person.
Third, the defendant’s intent is not an issue. Rather,
the question is whether the defendant actually inflicted the
injuries, not whether he intended to do so. Even if intent were at
issue, the evidence of the prior head and stomach injuries cannot
be probative of intent, since there is no showing that the
defendant caused those injuries. Evidence of injuries from an
unknown source cannot be indicative of the defendant’s mental
state.
Furthermore, even if the evidence of the prior injuries
were relevant to a material issue other than the defendant’s
propensity to abuse the child, the evidence would still be
5
inadmissible. Before admitting any evidence of prior acts under
Rule 404(b), a trial court must find by clear and convincing
evidence that the defendant committed the other acts. Tenn. R.
Evid. 404 advisory commission comment; State v. Parton, 694 S.W.2d
299, 303 (Tenn. 1985); Wrather v. State, 179 Tenn. 666, 169 S.W.2d
854, 858 (1943). In Wrather, the Court held:
Obviously, an absolute essential is
that (1) a former crime has been
committed, and (2) committed by the
identical person on trial. Only
thus can identification, or other
proof of guilt, of the accused in
the pending case be aided by
evidence of the independent crime.
And this limitation upon
admissibility applies equally to all
the exceptions to the general rule
excluding evidence of other crimes,
whether introduced to prove
identity, or for any other purpose.
Id. (emphasis added). In other words, the connection between the
defendant and the prior bad acts must be clear and convincing in
addition to the other requirements of Rule 404(b).
Here, the evidence that the defendant actually inflicted
the prior injuries is neither clear nor convincing. The child’s
mother and an emergency room physician testified to a suspicion
that the defendant caused the hand injury. However, the physician
testified that the smashed fingers could have occurred
accidentally. The child’s mother testified that the defendant
consistently denied the accusation of abuse and that she later
believed him. The only undisputed fact is that the child was in
the care of the defendant when the hand injury occurred. This fact
6
alone is not clear and convincing evidence that the defendant
inflicted the injury. With respect to the medical examiner’s
testimony about prior injuries to the stomach, head, and other
parts of the child’s body, absolutely no proof was admitted that
attributed those injuries to the defendant.
As a final note, I find it confusing that the trial court
excluded evidence that the defendant hit the child in the head,
stuck his finger down the child’s throat, and stuck the child with
a pin, while admitting evidence of the smashed fingers. It would
seem that if the other acts were irrelevant and prejudicial, the
finger-smashing incident was also. Thus, I am unable to understand
how the finger-smashing incident is more probative of intent and
accident than those other acts.
In conclusion, the testimony of the medical examiner, the
emergency room physician and the child’s mother regarding prior
injuries was unfairly prejudicial to the defendant. Any minimal
probative value was clearly outweighed by the prejudicial inference
such evidence invites. The State’s case was largely
circumstantial, with no direct evidence linking the defendant to
the fatal injury. By admitting evidence of the prior injuries, the
trial court allowed the jury to link the defendant to the victim’s
death by an impermissible inference: that because the defendant
may have caused injuries before, he must have caused the fatal
injury.
____________________________________
ADOLPHO A. BIRCH, JR., Justice
7