State of Tennessee v. Gregory Dunnorm - Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 23, 2002 Session
STATE OF TENNESSEE v. GREGORY DUNNORM
Appeal from the Criminal Court for Anderson County
No. 99CR0258 James B. Scott, Jr., Judge
No. E2001-00566-CCA-R3-CD
June 12, 2002
JOSEPH M. TIPTON, J., concurring.
I concur with the majority opinion, but I believe that neither Rule 613 nor Rule 608, Tenn.
R. Evid., allowed use of extrinsic evidence of the defendant’s lying on the affidavit of income. As
the majority opinion notes, Rule 608 allows a party to cross-examine a witness about specific
instances of conduct for the purpose of attacking the witness’s credibility, but it bars extrinsic
evidence of such conduct if the witness denies that it occurred. I also believe, though, that such an
exclusion applied to Rule 613 in this case.
The impeachment by extrinsic evidence contemplated by Rule 613 must relate to facts
relevant to a material issue at trial. It does not allow for extrinsic evidence to contradict a witness’s
testimony about a collateral fact. This is the collateral fact rule.
Extrinsic evidence of a prior inconsistent statement of a
witness is inadmissible to impeach the statement of a witness on
cross-examination as to collateral matters. State v. Hill, 598 S.W.2d
815, 820 (Tenn. Crim. App. 1980). A collateral fact is one which
affords no reasonable inference as to the principal matter in dispute.
Saunders v. City & Suburban R. Co., 99 Tenn. 130, 41 S.W. 1031(1897). If the inquiry on cross-examination is as to an inconsistent
statement about a collateral matter, the cross-examiner is bound by
the witness’s answer, and cannot bring on other witnesses to prove
the making of the alleged statement. If the inconsistent out-of-court
statement is relevant to the material facts in issue, then it is not
collateral. The statement must be independently relevant . . . before
the inconsistent statement can be shown by extrinsic evidence.
State v. Marlow, 665 S.W.2d 410, 412 (Tenn. Crim. App. 1983). Although our rules of evidence
do not mention the collateral fact rule, this court has concluded that it is still viable. See State v.
Perkinson, 867 S.W.2d 1, 6-7 (Tenn. Crim. App. 1992); see also Neil P. Cohen, et al., Tennessee
Law of Evidence § 6.13[6] (4th ed. 2000).
In the present case, proof that the defendant lied in an affidavit, submitted for the purpose
of attacking his credibility, constituted collateral evidence because it did not relate to a principal
matter in dispute. Thus, under the collateral fact rule, if the defendant had denied lying in the
affidavit, the state would have been barred from proving otherwise. In other words, under the
collateral fact rule and Rule 608, extrinsic evidence that he lied was inadmissible regardless of his
admitting or denying such fact.
____________________________________
JOSEPH M. TIPTON, JUDGE
-2-