*1 Tennessee, Plaintiff-Appellee, STATE DuBOSE, Defendant-Appellant.
James
Supreme Court
at Nashville.
Sept. *2 on
The conviction is based circumstantial death, evidence. On the date of the victim’s the defendant went to work and Jones and spent morning a friend the children with and her small child. After the defendant work, he, Jones, returned home from and all the children visited the home of the defen- afternoon, parents they dant’s until late when all, Jamie, except returned the mobile They together home. until some remained get pizza time later when Jones left to and a left, movie video. When she the victim was sitting eating dog. at the kitchen table a hot Burson, Attorney Jones, Charles W. General and appeared According the victim had Moore, Reporter, Michael E. Solicitor Gener- morning to be well but somewhat al, Catalano, Michael W. Associate Solicitor “lazy” day. later in the there was General, Amy Tarkington,' any injury Assistant Attor- that he no evidence sustained General, Nashville, ney Joseph Baugh, D. day. during the General, Franklin, Attorney District Nick testified that after his mother left to Plaintiff-Appellee. movie, get pizza asleep the victim fell Plummer, Jr., Franklin, at the kitchen and was carried table H. for De- Robert to the bedroom. Nick defendant stated fendant-Appellant. while the and the victim were defendant noise, he which the the bedroom heard OPINION explained to Nick was made REID, Justice. toys falling. some presents This case for review the decision returned, Jones the defendant told When Appeals affirming of the Court of Criminal put victim to her that he had bed. She the conviction of James DuBose of first de- lying him on went into the bedroom and saw gree aggravated murder child abuse. on the floor. a blanket She assumed imprison- The defendant was sentenced to Later, asleep. went child was the defendant appeal ment for life. Permission carrying into bedroom and returned granted in order to review the trial court’s victim. He the child was not told Jones ruling allowing the introduction of evidence breathing. when The victim vomited his suffered the victim. him gave mother mouth to mouth resuscita- otherwise,
tion; sign he exhibited no of life. hospital, At the the defendant stated Jones, pinned The victim was Rufus he found the child between the bed 16-month-old Jr., explanation was that the applica- the wall. His whose death was caused force, dropped a victim his bottle behind the bed significant tion of consistent with had abdomen, trying it. The blow with a fist to his which had and had been to retrieve investigated the death visited developed scarring massive internal as the detective who older, night. He made numerous undiagnosed the home that result of pronounced hospital photographs and measured the distance be- victim was dead at the approximately p.m. and the wall. When the de- emergency room at on tween the bed 3, 1993, day, by his tective returned the next he found under July where he was taken mother, Jones, baby’s which had not been Ann and the defendant. bed bottle living together previous night. The detective also and the defendant were there Jones Rufus, a few children: noticed that the bed had been moved in a mobile home with her victim; Nick, 10; Lastly, Joey, age away inches farther from the wall. age son, Jamie, up blanket age also the detective discovered a rolled The defendant’s lived as the on which the mother identified blanket with them. injured while he was fingers were lying night the victim had been defendant; told Jones spot damp in one he died. The blanket his appeared mucus. had smashed what to be blood and that the victim with Because the defendant had on the blanket was consistent the cabinet door. The stain house, victim. sample of blood taken from the child to his sister’s taken the *3 fingers until later the mother did not see the examiner, Goodin, Dr. Julia The medical fingernails day. Two of the victim’s next autopsy. testified that performed the She pus fin- there was on the missing were and cavity full of the victim’s abdominal to the immediately took the victim gers. She blood, contusions on the intes- there were he was treated emergency room where tines, tearing lacerations or on the con- Dr. concluded Dr. Wilson. Wilson Woodrow intestines, which nective tissue to the small injuries were inconsistent likely by a knuckle on the were caused accidentally in a cabi- fingers being smashed perpetrator’s injury The which caused fist. door, although possible it was that the net 24 tearing probably the had occurred within injury by have sustained the victim could certainly hours of death and had occurred of the fingers hinged in the door placing his hours of death. Exterior bruises within 36 pulling fingers his while cabinet and then corresponded the victim to the internal He de- pushing against the cabinet door. injuries. The bruises were consis- abdominal “superficial deglov- scribed the tent with blows to the abdomen with fist. peeled ing,” in which the skin is off and there Goodin, According type to Dr. this of blow suspected are no fractures. He child abuse adult, typically by an not is administered his concerns with the mother. and discussed opinion, In another child. Dr. Goodin’s the explanation happened of what defendant’s Wood, Harvey the mother’s brother-in-law "with she was inconsistent ob- uncle, that the defendant’s testified and also that there was no served. She testified indi- hostility toward the the defendant showed pinned in cation that the child had been explained that the defendant victim. Wood way, signs asphyxiation. nor were there father, Jones, the victim’s Rufus Sr. disliked had told Wood that the victim Dr. also Goodin testified that there was just daddy, like his “looked like his sounded evidence of other internal in the daddy, daddy like his and that he cried abdominal area which were at least a week that little bastard either.” couldn’t stand old and could have been several months old. that on one occasion he had Wood testified that She stated old had been seen the defendant strike the victim on the by significant resulted caused force and had that the defendant head. Wood also stated scarring. internal Her conclusion was testimony. get change him to his had tried to scarring that the mass of caused the old injuries prevented the soft connective tissue basic defense was that The defendant’s freely cavity moving from the abdominal there was not sufficient admissible applied, resulting in thereby when force was initially charge. The defendant tearing which caused the child bleed was acciden- claimed that the child’s death addition, In Dr. that death. Goodin testified becoming it was caused his tal—that parts body on various of the there were At caught between the bed and the wall. bruises, exterior contusions and some trial, no evidence he insisted that there was as much as a week old. also were She injury, showing the cause of the fatal that to the found evidence of contusions could have been evidence showed scalp which had resulted back of the area accidentally by play at the children caused development of scar tissue between the intentionally by persons than the de- scalp the skull. The medical examiner Appeals, of Criminal fendant. The Court to the victim’s did associate though that found with his death. head circumstantial, support was sufficient application for found conviction. The defendant’s addition to the sufficiency examiner, appeal proof permission was introduced con- medical granted. issue in March 1993 evidence was not cerning an incident when 652 (3d ed.1995); admissibility Dockery §
before this Court is the dence at 401.5 86-87 prior injuries. Responsibility, evidence of v. Board 937 of Professional (Tenn.1996); 863, State v. cf. II 441, (Tenn.), Porterfield, 746 S.W.2d cert. denied, 1756, The defendant contends that the trial court 486 U.S. 108 S.Ct. (1988). in allowing admissibility committed reversible error L.Ed.2d Where the jury to hear evidence of the proffered comply evidence must also 404(b)3 objects specifi- sustained the victim. He with Rule and the trial court has cally testimony to the of the mother and of procedure followed the mandated emergency physician room in- rule, standard, about the appears it the same to the victim’s March 1993 discretion, applicable. abuse would be See testimony Brewer, (Tenn. of the medical examiner *4 about the internal and external Crim.App.1996). in view The State contends that the evidence was procedural requirements strict of Rule death, 404(b), admissible to show the cause of the decision of the trial court should - “knowingly, also that the was caused be no there afforded deference unless has means,” provided other than accidental as compliance proce- been substantial with the 39-15-401(a)(1991). § in Ann. Tenn.Code requirements proce- dural of the Rule. The 404(b) The defendant would invoke Rule determining admissibility dure for of evi- the Tennessee Rules of Evidence to exclude “crimes, wrongs, dence or acts” is prior injuries. the evidence of He contends forth in set the rule.4 The court must find probative any the evidence was not jury’s pres- on “evidence heard outside the and, further, element of the offense even if ence” that the to a evidence is relevant “ma- outweighed relevant its value was terial issue” and that the value of prejudice. unfair “outweighed by the evidence is not the dan- ger” prej- that the evidence will cause unfair
III
404(b)(l)(2)
(3);
udice. Tenn. R. Evid.
&
McCary,
The first issue to be
is the
resolved
513-14
(Tenn.1996).
admitted,
standard of
of the trial court’s
If
review
deci
the evidence is
regarding
admissibility
upon request
sion
of the evi
trial court “must
on the
state
dence. The standard of review where the
record” the material issue to which the evi-
judge
decision of the trial
is
on the
for
based
dence is relevant and the court’s reasons
404(b)(2).
proffered
admitting
relevance of the
evidence under
the evidence.
Id. at
Rules 4011
comply fully
and 4022 is abuse of discretion. The trial court did not
with
al.,
However, where,
procedures.
Neil P. Cohen et
Law
in
Tennessee
Evi-
these
as
"
having
allowing
1.
‘Relevant evidence' means evidence
must be satisfied before
such evi-
any tendency
to make the existence of
fact
dence are:
consequence
(1)
upon request
that is of
to the determination of the
court
The
must hold
probable
probable
action more
than it
less
hearing
jury's presence;
outside the
(2)
would be without the evidence." Tenn. R. Evid.
The court must determine that a material
conforming
issue exists other than conduct
upon request
with a character trait and must
except
2. "All relevant evidence is
issue,
admissible
state on the record the material
States,
provided by the
Constitution of United
admitting
ruling,
and the reasons for
evi-
rules,
the Constitution of
these
dence; and
general application
other rules or laws of
in the
(3) The court must exclude the evidence if
courts of Tennessee. Evidence which is not rele-
outweighed by
danger
its
value is
vant is not admissible.” Tenn. R. Evid. 402.
prejudice.
of unfair
404(b) provides
3. Rule
as follows:
404(b)
response
in
4.Rule
was drafted
to this
Parton,
opinion
Crimes,
Court's
in State v.
(b)
Wrongs,
Other
or Acts.—Evi-
(Tenn.1985).
Parton,
"the
Court estab-
wrongs,
dence of other
or acts is not
precise procedures
emphasize
lished
prove
admissible to
the character of
usually
evidence of other crimes should
be ex-
conformity
in order to show action in
404(b)
advisory
may,
cluded.” Tenn. R. Evid.
com-
character trait.
It
be admissi-
purposes.
missions's comments.
ble for other
The conditions
trial,
resolution
case,
presented
sues
hearing
was a
outside the
this
there
which,
turn,
by the ele-
are
jury, but the trial court failed
determined
presence of the
charged
and the defense
and state on the record
offense
determine
ments
in the
to which the evidence was
As stated
material
issue
the accused.
asserted
pro-
also failed to find that the
relevant and
to Rule
Advisory
Comment
Commission
of the evidence was not out-
relevant,
bative value
must
tend
“[t]o
prejudice,
weighed by
danger
of unfair
issue.”
a material
admissibility will be
the determination of
charged
and con-
The defendant
reviewing court on the evidence
made
by aggravated
degree
first
murder
victed of
presented
hearing.
at the
out
abuse,
as: “A reck-
which was defined
child
(13)
than thirteen
killing
less
of a child less
IV
from
years
age, if the child’s death results
apply
must
Since
this case the Court
abuse,
§ 39-
aggravated child
as defined
is
standard of review Rule
different
15-402,
against
by the defendant
committed
applicable, the next issue to be considered
§
Tenn.Code Ann.
39-13-
child.”
admissibility of the evidence of
whether the
202(a)(4)
(current version at
(Supp.1993)
is controlled
Rules 401 and
39-13-202(a)(2)
offense
(Supp.1996)).
§
applicable.
402 or
is also
whether
abuse is defined
aggravated
child
admissibility
of the evidence of
*5
person
guilty
follows: “A
is
of
statute as
area,
injuries to the victim’s abdominal
aggravated
abuse who com-
offense of
child
prior injuries
the evidence of
to the victim’s
of child abuse as defined
mits the offense
head,
separate-
hand and
must be considered
(1)
§
re-
39-15-401 and:
The act of abuse
ly-
child;
bodily injury
or
sults in serious
to
regard
to
the evidence
(2)
accomplish
deadly weapon
A
is used to
area,
injuries
to the victim’s abdominal
abuse_”
Ann.
the act of
Tenn.Code
defendant contends that the medical examin
39-15-402(a)(1991).
§
offense of child
injuries
ir
testimony regarding prior
er’s
is
“Any person
was
as follows:
abuse
defined
injuries
relevant unless
can be attributed
by
knowingly,
who
other than
accidental
un
interpretation
to the defendant. That
is
(18)
means,
eighteen
a child under
treats
duly
meaning
restrictive of the
of relevance.
inflict
years
age
in such a manner as to
404(b) applies
Rule
to “evidence of other
to
neglects such a child so as
crimes, wrongs
or acts” of the
on adversely
the child’s health and wel-
affect
trial,
only
and excludes evidence of such acts
A
guilty
is
of a Class misdemeanor.”
fare
purpose
proving
when offered for the
§ 39-15-
Tenn.Code
Ann.
character or trait of
v.
character. State
added).
401(a)(1991)(amended 1994)(emphasis
Nichols,
722,
(Tenn.1994),
877
732
S.W.2d
required, for conviction of
These statutes
denied,
1114, 115
909, 130
cert.
513 U.S.
S.Ct.
by
degree
aggravated
first
murder
child
(1995).
L.Ed.2d
Evidence
abuse,
knowingly,
proof that
acts,
relevant,
wrongs
if
are not excluded
means,
inflicted
other than
accidental
404(b)
they
if
were committed
Rule
bodily injury that
upon the victim serious
person other than the accused and are
caused his death.
if
conditionally excluded
committed
did
accused. Since the evidence admitted
Here,
prior injuries
the evidence
identity
person who
not show the
area
to show
the abdominal
was admissible
injuries
caused the
abdominal
sustained
Goodin,
According
Dr.
causation.
victim,
by the
it was not inadmissible under
by the
scarring of the abdominal area caused
404(b)
upon
reflecting
Rule
the character
al
prior injuries created
condition which
of the defendant.
the later blows to cause
lowed
admissibility
in the victim’s death. This
Consequently, the
of the which resulted
regardless
dependent upon
un
was relevant to causation
evidence is
its relevance
evidence
identity
perpetrator.
The ex
relevance of of the
der rules 401 and
consis-
is-
bruises to the abdomen were
proffered evidence is determined
ternal
responsible
tent with
for the
the internal
and were
the defendant was
fact evidence of the same
Thus the
must be clear and
hand and head
404(b)
abdominal area were
required
convincing as
under Rule
they directly
admissible because
related to
McCary,
analysis.
v.
See State
S.W.2d
they
the cause of death and also because
514;
Parton,
at
at 303.
State v.
tended to
caused
were
Then,
must
two issues
be determined:
intentionally
someone
and not accidental-
issue,
a material
whether there was
ly.
conforming
than conduct
with a character
trait,
to the
to which evidence
proba
The next issue is whether the
relevant; and,
so,
tive value of the evidence of the abdominal
probative
whether the
value of the evidence
outweighed by
danger
outweighed
danger
prejudice.
of unfair
Since,
above,
prejudice.
unfair
as stated
401,
Id. The test for relevance
Rule
under
404(b)
applicable
Rule
is not
to this
prove a
that the evidence tends to
material
admissibility
its
must be considered under
issue,
How-
is the same under Rule
403,
Tennessee Rules of Evidence.5
ever,
balancing
the test in Rule
permits
Rule 403
court
exclude relevant
probative
against prejudicial
value
effect dif-
“if its
value is substan
fers from that established
Rule 403. To
tially outweighed by
danger
of unfair
danger
added.)
be excluded under Rule
prejudice.”
(Emphasis
The Court
prejudice
“substantially
unfair
out-
must
prejudice
has
unfair
stated that
un
“[a]n
weigh”
value. Under Rule
tendency
suggest
due
decision on an im
404(b), however,
basis,
danger
preju-
of unfair
proper
commonly, though not neces
Banks,
sarily,
simply
“outweigh”
an emotional one.”
dice must
(Tenn.1978);
approach
see also
value. The restrictive
of Rule
McCary,
recognizes
State v.
of unfair the evi fully dissent. properly dence was admitted. majority’s reasoning, Rule Under prior apply does not to the evidence inju- injuries because the stomach stomach V explicitly attributable to the de- ries are not be men One additional matter should Rather, majority finds this evi- fendant. tioned. Where the evidence of other relevant to cause of death. child dence may upon wrongs, and acts reflect the char stomach, from a blow to the died accused, procedure acter of the set forth bleeding, caused internal which led death. followed, in Rule should be even cavity scarring in The fact that the stomach though the evidence is offered to best, is, magnified the effect of the blow at necessarily directly not material fact related slightly probative of the cause death. If, hearing to the accused. after the evi Nevertheless, the trial court admitted ex- dence, the trial court finds the evidence tremely prejudicial accused, implicate weighing does injuries. The medical examiner tes- stomach against prejudice value unfair “repeated” that the child had tified pursuant will be made to Rule 403. If the stomach, she testified that the upon court finds that the evidence reflects by “very stomach had been caused accused, weighing character purpose of this testi- significant force.” One pursuant will be made to Rule oper- mony imply that the defendant “very significant ated the force.” Even *7 purpose that not the for admission of the VI evidence, certainly it was most the result. judgment of the Court Criminal testimony implicates the defen- Because this Appeals affirming the defendant’s conviction dant, prior Rule it is evidence of acts under and sentence is affirmed. 404(b) against be measured and should provided standard therein. against Costs are taxed the defendant. 404(b) inapplicable in this
To hold Rule
permits
gener-
an
run” around the
case
“end
ANDERSON,
J.,C.
DROWOTA
prior
prohibition against
al
crime evidence.
HOLDER, JJ., concur.
instances,
many
In
the connection between
BIRCH, J.,
very
prior
is the
opinion.
dissents with
crime and the defendant
consequence
provides:
that is of
to the determination of the
1. Rule 404
probable
probable
or less
than it
action more
(b)
Wrongs,
Other Crimes
or Acts. Evidence of
would be without the evidence.
crimes, wrongs,
other
or acts is not admissible to
character of
in order
show
provides:
3.Rule
conformity
trait.
It
action in
with the character
except as
All relevant evidence is admissible
purposes.
may,
be admissible for other
States,
provided by the Constitution of the United
rules,
these
or
the Constitution
provides:
2. Rule 401
general application in the
other rules or laws of
having
not rele-
courts of Tennessee. Evidence which is
“Relevant evidence” means evidence
any tendency
admissible.
to make the existence of
fact
vant is not
to an issue other than the accused’s
prosecution seeks to introduce the
vant
reason the
apply only
advisory commission
If Rule
were to
character. Rule 404
evidence.
Luellen,
question specifically comment;
when the evidence
person re-
(Tenn.Crim.App.1992).
exceptional
identifies the defendant as the
Such
sponsible,
prosecution
all the
would need to
prior
occur
act is relevant
cases
when
forthright.
If
ambiguous
is be
and less
do
identity (including motive and common
previously
that
the defendant
intent,
of mis
plan),
and rebuttal
scheme
it
struck the victim is inadmissible because
is
if asserted as a defense.
take or accident
propensity
prosecution
need
comment;
advisory
Rule 404
commission
only
proof
resulting injury,
(Tenn.
adduce
McCary, 922
State v.
defendant,
naming
without
and invite the
1996).
present in
exceptions are
None of the
This result
jury to draw its own conclusions.
this case.
401, 402,
not
intent of Rule
or 404.
is
First,
exception to Rule
the accident
majority
prior
also found the
stomach
404(b)’s exclusionary rule is not relevant.
they
injuries relevant because
demonstrate
disprove
may
acts
be
Prior bad
admissible
intentionally
were caused
accident
if the defendant has asserted
accidentally.
finding
and not
this
Tenn. R.
accident as
defense.
Evid.
previous finding that the evi-
contradicts the
comments; McCary,
advisory commission
defendant,
identify
dence does not
ren-
has not
connection between the defendant and the
prior bad acts convincing must be clear and requirements addition to the other of Rule
Here, the evidence that the defendant ac-
tually inflicted the is neither convincing. clear nor The child’s mother and CARROLL, Appellant, William D. emergency physician
an room testified to a suspicion that the defendant caused the injury. physician RANEY, Warden, Appellee. hand testi- Fred fied that the smashed have could Supreme Court of *9 accidentally. occurred The child’s mother at Jackson. consistently testified that the defendant de- nied the accusation of abuse and that she Sept. later undisputed believed him. The fact is that the child was in the care of the
defendant when the hand occurred. convincing
This fact alone is not clear and