State of Tennessee v. Terry Bowen - Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1995 SESSION
August 1, 1996
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9505-CC-00158
)
) Bedford County
v. )
) Hon. W. Charles Lee, Judge
)
TERRY BOWEN, ) (Theft over $1,000)
)
Appellant. )
CONCURRING OPINION
I concur in the results reached and most of the reasoning used in the
majority opinion. However, although I agree that the collateral fact rule essentially
remains viable through Rule 403, Tenn. R. Evid., I question its use in this case relative
to the appellant’s attempt to impeach Mr. Farrar’s testimony through extrinsic evidence
that Farrar’s son had previously been charged with the appellant and that his son’s
charges had been retired on motion of the state.
One of the appellant’s arguments is that the evidence regarding Farrar’s
son being previously charged with the appellant and then having the charges dismissed
shows that Farrar had a “biased motive to testify adversely” to the appellant. Pursuant
to Rule 616, Tenn. R. Evid., a party may prove the bias or prejudice of a witness “by
cross-examination, extrinsic evidence, or both . . . .” This rule follows the common law
in Tennessee. See Creeping Bear v. State, 113 Tenn. 322, 87 S.W. 653 (1905).
In this respect, the collateral fact rule upon which the majority opinion
relies did not and does not apply relative to proving bias. Thus, to the extent that the
appellant was proving facts probative of bias, the fact that the proof was inconsistent
with the previous answers given by the witness is irrelevant to the issue of admissibility.
On the other hand, if the witness on cross-examination denies
or does not fully admit the facts claimed to show bias, the
attacker has the right to prove those facts by extrinsic
evidence. In courtroom parlance, facts showing bias are not
“collateral,” and the cross-examiner is not required to “take the
answer” of the witness, but may call other witnesses to prove
them.
1 John W. Strong, et al., McCormick on Evidence, § 39 at 136 (4th ed. 1992) (footnotes
omitted). In other words, even though Farrar denied having any bias or prejudice and
denied that his son’s charges were dropped, the appellant was not bound by these
answers under the collateral fact rule, but could present extrinsic proof of bias.
This raises the more difficult question relative to whether the evidence
was probative of Farrar’s bias and, if so, what type of and what amount of “prejudice”
must exist to justify exclusion. The majority opinion states that admissibility of the
certified judgments should have been considered under Rule 403, Tenn. R. Evid.,
implying that the evidence had little probative value and was time consuming, and not
under Rule 404(b) as the trial court did.1 I agree with the majority opinion as far as the
judgments are concerned. However, I believe that the record shows that the trial court’s
Rule 404(b) analysis related not only to the judgments, but also to the following proof:
that Farrar’s son had previously committed and been charged with a burglary and
resulting theft, with the appellant being a codefendant, and that the son’s charges were
retired upon motion of the state. The appellant argued that the jury was entitled to infer
from these facts that Farrar would be biased in favor of the state. Essentially, the trial
court ruled that the mere fact that the state had a previous charge against Farrar’s son
retired was so remotely relevant that the danger of prejudice, in terms of jury confusion,
1
"To be excluded under Rule 404(b), the danger of unfair prejudice m ust sim ply outweigh
the probative value. But to be excluded under Rule 403, the danger of unfair prejudice m ust
substantially outweigh the probative value.” Neil P. Cohen, et al., Tennessee Law of Evidence ,
§ 404.7 at 172 (3d ed. 1995).
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outweighed the probative value of the evidence, the standard of admissibility provided
in Rule 404(b).
I am inclined to agree with the trial court that the proper standard would
be Rule 404 to the extent that the evidence proved that Farrar’s son committed crimes.
But I am inclined to disagree with the trial court’s view that evidence that the son
committed and was charged with another burglary and theft and that the state had the
charges retired presented a greater danger of jury confusion than it was probative of
Farrar being a biased witnessed. It would be reasonable to infer that Farrar would look
favorably upon the state for having his son’s charges retired and unfavorably upon the
appellant for potentially involving his son in criminal activity or charges. The jury had
already heard Farrar testify, without objection, that his son had committed the previous
burglary and had charges pending. I see little danger of confusion in proving that the
charges were actually retired.
In the final analysis, though, I do not believe that the trial court’s
determinations harmed the appellant so as to warrant a reversal. Through the
evidence, the jury was made fully aware of Farrar’s son’s commission of a previous
burglary, his being charged, and his charges being retired. Through cross-examination
of Farrar, the jury was aware of the significance the appellant placed upon the son’s
circumstances in relation to Farrar’s testimony. The trial court refused to strike any of
the proof, thereby excluding only the certified judgments from the jury’s consideration.
Given the evidence presented, I do not believe that the limited impact of the trial court’s
rulings rises to the level of reversible error.
_____________________________
Joseph M. Tipton, Judge
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