TBA Law Blog

Posted by: Donald Paine on Nov 1, 2012

Journal Issue Date: Nov 2012

Journal Name: November 2012 - Vol. 48, No. 11

Two fishermen in Carter County at Elizabethton found a body beside the Watauga River on Wednesday, Feb. 18, 2004. It was Kristal Gale Dubuque, age 22, the single mother of a son. Recently she had made the mistake of working for bounty hunter Bob Miller. He brutally raped and murdered Kristal during the night of Feb. 15.

At trial during the first full week of May 2007, two young women who were neighbors of Miller testified. Each swore that he made crude statements about desiring sex with Kristal Dubuque. Were these statements admissible evidence?

There’s no hearsay problem; the defendant was the declarant. But are the statements relevant? I believe the definition in Evidence Rule 401 provides an affirmative answer: “‘Relevant evidence’ means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miller’s statements made it more probable that he was the murderous rapist than would the absence of such statements.

After his conviction and life sentence, Miller appealed. State v. Miller, 36 TAM 5-17 (Tenn. Crim. App., Nov. 17, 2010), no appl. perm. app. The appellate tribunal affirmed, but it used Rule 404(b) rather than 401 to justify admissibility of Miller’s statements.

Recall that 404(b) admits other “crimes, wrongs, or acts” to prove noncharacter issues such as intent. Statements sometimes can be crimes or wrongs, but not Miller’s statements. Can they be classified as “acts”? I’m dubious.

The court disagrees with me:

[T]estimonies about the appellant’s desire to have sex with the victim were relevant to show the appellant’s intent to engage in sexual relations with the victim similar to those that occurred just prior to her death. Accordingly, these statements were admissible under 404(b).

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.