PAINE ON PROCEDURE

A recent opinion of the Supreme Court turns character evidence on its head. The revisionist decision is State v. Stevens, 78 S.W.3d 817 (Tenn. 2002).

Let's return to basics. Rule 404(a) makes character trait evidence inadmissible to prove action in conformity on a particular occasion. For example, the prosecution cannot open a murder trial with reputation witnesses to prove the defendant's trait of violence. But the defendant can open the door by calling witnesses swearing to his reputation for nonviolence, in which case the prosecution can rebut.

What about specific acts, as opposed to community reputation (or personal opinion)? Rule 404(b) seems clear on its face: "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." But such other bad acts are admissible for purposes other than proving character and conforming conduct. Consequently an accused's prior drug sales are admissible to prove specific intent to sell the drugs at issue in today's trial.

Stevens announces that "person" in Rule 404(b) refers solely to the defendant in a criminal trial. That novel notion snuck into our law via State v. DuBose, 953 S.W.2d 649 (Tenn. 1997): "Evidence of crimes, wrongs, or acts are not excluded by Rule 404(b) if they were committed by a person other than the accused …" Here's how the principle played out in Stevens.

Our hero received two death sentences for hiring Corey Milliken to kill Sandra Jean Stevens (defendant's wife) and Myrtle Wilson (mother-in-law). The defense said Milliken acted alone following an argument with his mother and step-father. To support this theory Stevens called to the stand Milliken's former foster father, Barry Morris, who testified in an offer of proof hearing outside the jury's presence:

"Milliken would argue with his mother over the telephone and then vent his frustration by throwing things and damaging furniture."

The trial judge excluded this offer. The Supreme Court held that ruling to be erroneous but harmless.

So in Tennessee the accused can get into evidence specific bad acts of others to prove a character trait and ultimately conforming conduct on a particular occasion. While federal circuits are split, the Sixth held in February that "person" includes folks other than the accused. United States v. Lucas, 357 F.3d 599 (2004).

Before I sign off, observe that Stevens contains another important development. The opinion requires the trial judge to act as gatekeeper with respect to nonscientific expert testimony, just as McDaniel requires scrutiny of scientists.

Notes

1. McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn. 1997).