*1 (Emphasis of his death.” to the manner physical that exertion” records “reasonable In the case at 421. day” rarely supplied.) 410 S.W.2d day did was that one “from but bar, absolutely question no there is precipitating the cause of an infarction myocardial infarc- of a Curry Mr. died the of a thrombosis. that was never cause tion. evidence, foregoing Based medical court that Dr. Feldhaus’s
the trial stated was be Thus, that proper issue the tes- testimony, coupled lay with other Shelby court, set trial as fore the timony, might plaintiff be sufficient the Dudley, 574 Company Mutual Insurance v. any to recover in the absence of counter- the “whether (1978),is Utah However, vailing evidence. the trial court phys by the precipitated heart attack [was] plaintiff meet held that the had failed to employee’s activity exertion the ical proof her to the connec- burden as causal consideration Upon work.” a full Curry’s tion between Mr. work and case, testimony presented in this medical heart attack. is an that there we are the ex the medical conflict between obvious
I the the of causation. Under perts on issue the trial court’s memorandum is, rule, this there Court material evidence Curry’s the that work opinion, statement fore, accept finding bound to “certainly of his not causative factor” Mutual Shelby issue. judge on the trial death attributed Dr. Grossman. supra, at 45. Company Dudley, Insurance appear these exact words do not While is af- judgment of the trial court The deposition, Dr. Grossman’s state he does appeal costs of are firmed and the this going that “when a who is about his against plaintiff. adjudged attack], usual activities heart as I has [a doing, this if rarely was told man was I JJ., HENRY, HARBISON, COOPER, ever would consider that as even factor DAUGHTREY, Judge, Special concur. Thus, though whatsoever.” even misquoted court Dr. Grossman the state summary
ment was not an unfair of his testimony. Moreover, does this minor error grounds
not constitute for reversal.
II regard to the wheth With issue of concluding er the trial court erred in that Tennessee, Respondent, STATE of plaintiff had failed show causal con Curry’s nection between Mr. and his work PATTON, Petitioner. attack, that, Sam Walter heart we note at outset contrary position, con plaintiff’s Supreme Court Tennessee. application is clusion entitled to the rule. The has plaintiff material evidence Dec. 1979. trial
also asserted that erroneously 25, 1980. Rehearing Denied Feb. indulged court should have the inference of and Curry’s that heart attack arose out employment,
in the course of his under the v. Rut authority Crane Rental Service (1966). ledge, However, only applicable is inference post of employee “when an is found at his usually during labor the time and there is no direct evidence employed *2 Lane, Hildebrand,
Norman D. D. Donald Nashville, petitioner. for Gen., Leech, Jr., Atty.
William M. Jenni- Small, Gen., Atty. fer Helton Asst. Nash- ville, respondent. for
COOPER, Justice.
OPINION
Petitioner, Patton, was con- Sam Walter degree victed of second murder and sen- thirty in the years tenced to serve state penitentiary pistol slaying of his wife, Shirley Patton. The Court of Crimi- Appeals nal affirmed the conviction. granted (1) court certiorari to determine whether the had its burden of state carried proving beyond pe- a reasonable doubt that titioner, was sane at the time he killed his wife, (2) prejudicial and whether error was judge permitting committed petitioner the state to cross-examine the “prior instances of bad acts or receiving misconduct” and in rebuttal testi- mony on of miscon- the same or similar acts record, From our we duct. review the its are convinced that the state carried bur- sanity den on the issue of and that no showing error was committed in petitioner’s propensity for violence. petitioner
The record shows that for Shirley Patton had been married seven- years. together teen Their life was turbu- lent, argu- being punctuated by numerous physical ments and confrontations. 1972, Shirley petitioner left and filed suit divorce, charging petitioner had later, underwent petitioner abused her occa- months physically on numerous Seven Roger I. Shortly after the divorce action evaluation Dr. psychiatric sions. filed, re- parties White, petitioner became reconciled had who concluded that result sumed cohabitation with the sever- “truly period amnesic for the been a son born 1973. they death,” had November the date of his wife’s al hours on marriage in the increased *3 The turbulence time, from “during period that of and that baby, after the birth of the with the ulti- sense, was [petitioner] . . . legal a again result that in 1974 Patton mate Mrs. “knowing right capable of and not insane” husband, her taking baby left her her with or controlling his actions wrong or from Alabama, and for divorce. to filed suit expectations conforming his actions to the expressed the Sep- society.” Mrs. Patton returned on Dr. White also to Nashville of attending a insanity tember preparatory petitioner’s period to of opinion that preliminary hearing in action. the divorce the the divorce was occasioned stress station, bus While still at the she contacted separa- the threatened enforced action and petitioner and told would be him that she his child. tion from apartment the staying at of a mutual H. Dr. William psychiatrist, A second friend, Bean, Lee Jimmy peti- Mrs. and that some two Tragle, petitioner who examined see his tioner could son there. Petitioner Patton, testi- after the death of Mrs. years apartment evening the Bean visited that to or was unable determine whether fied he with his an talked wife for about hour. could not had amnesia and petitioner morning Petitioner returned the next accuracy any degree with of determine wife, his only baby, the and Mrs. nature and petitioner knew the whether son, teenage Randy, Bean’s were at home. Septem- on of of his acts the 16th quality Patton, checking Randy After with Mrs. ber, 1974. petitioner apartment, admitted the into upstairs so then went the Pattons could talk tending to there is Where evidence Shortly thereafter, privately. Randy heard charged with a crime that a show He scuffling sounds. went downstairs the the time commissionof insane at of was hand, petitioner saw with gun a in his case, on the crime, in this the burden is as standing Randy strug- over Mrs. Patton. petitioner capac prove that had the state gled petitioner with while Patton es- Mrs. his wrongfulness the appreciate ity caped baby. to the bathroom her Peti- with con ability conform his conduct and the open tioner kicked the door and bathroom requirements the of law. Graham duct to shot he Mrs. Patton the head. As was (Tenn.1977). State, 531, 547 544 v. S.W.2d so, doing Randy open glass Bean the broke also, Edwards v. 540 S.W.2d See gun case an unload- door to a and obtained pointed is (Tenn.1976), wherein it 646 shotgun, ed which he attempted to use as a that: grabbed gun club. Petitioner the and told by thé state burden can be met him: testi- expert through the introduction A. I’d have to “Randy, don’t. issue, testi- through lay mony on the you.” shoot proper where a foundation mony Q. right, All did about say anything laid, or an expressing opinion Shirley at that point? or state- through showing of acts said, already A. He dead.” “Shirley is very near petitioner, at or ments crime, the commission residence, time of taking left the Defendant Bean in- sanity and with which are consistent his son with him. He a motel in went to insanity. Brooks Tennessee, consistent with See Springfield, registered where he (Tenn.Cr.App.1972); 70 gave under a false name a false ad- State, 94 28 S.W. days Two dress. later he surrendered Wilcox authorities, contending (1896); he had no rec- that Whitmire v. (Tenn.Cr.App.1972). ollection of the above. events described circumstances, Tragle Dr. ing. Petitioner insists “that the to Under tally proof give failed in its the defend team could not and his evaluation petitioner sanity was sane the time of the death at the ant as shooting. Dr. White could certainly his wife and that the State moment of the petitioner was insane. point beyond testify failed to a rea and did prove that no explanation, Dr. White admitted sonable doubt and to a moral certain part petitioner was argues abnormality that “nei ty.” Petitioner further given by Dr. tests by any nor the court should be shown ther allowed to totally disregard the testimony team, opin- his White’s and that evaluation of a witness prosecu which the solely petitioner’s on so- predicated [Dr. ion White] stipulated tion eminently qualified interviews, history, psychiatric cial express opinion.” argu his As to the latter petitioner during the observations ment, nothing there is in the record to interviews, psychia- experience and his *4 indicate jury that either the of the court petitioner’s testified that trist. He also disregarded testimony the of Dr. White. inability to re- by was caused an amnesia While it is true that a verdict was not sense to “things which make no member rendered in accord with testimony, his foreign to make- and which are [his] [him] jury required is not accept testimony to of a up.” psychiatrist sanity on the issue of hand, testimony there is the the other On of lay testimony exclusion or to the exclu under the same circum- Tragle that of Dr. peti sion of evidence of the actions of the White, he was by faced Dr. stances as those tioner inconsistent with insanity. Edwards sanity the give to an as to unable (Tenn.1976). v. If it shoot- moment of the petitioner the at the were, pointed out in Brooks v. Further, testimony that lay ing. there was supra, effectively preempt would our “[[i]t] foreign petitioner’s violence was to not jury system trial sanity issues and re putting issue the basis make-up, thus place it system by psychia with a of trial And more amnesia as seen Dr. White. opinions. unwilling, trists’ We are even if testimony of there was the significantly, power, society we had the to with saddle so night Bean, petitioner the Randy who saw change system basic a in our of criminal shooting, petition- admitted before the who jurisprudence.” morning er into the Bean residence fought petitioner with shooting, who Further, in Edwards pointed as was shooting, the and prevent an effort to beyond supra at “it is settled by petition- with death who was threatened value of ex- question weight that the and shooting. The effect er after the testimony jury is for the pert petition- Bean was that testimony Randy expert Where there is conflict between shooting, and at the time of the er was sane facts, as to the testimony testimony and the at will. restrain his actions that he could n Further, expert testi- jury accept the is not bound to petitioner clearly that it showed preference testimony, mony amnesia, to be- suffering either from was not credibility weight addition, must determine the killing. the the In fore or after shown in light of each in the of all the facts scene of leaving that on the record shows the case.” nearby to a killing, petitioner went the the an motel under registered in a
city and
expect
one would
name—actions
assumed
weighing
testimony on the
In
the
indicate
and which
fugitive
aby
to be taken
case,
jury was
sanity
issue of
in this
the
his wife.
he had killed
appellant knew
that
that Dr. White first saw
faced with the fact
they
indicates
shooting
The verdict
petitioner seven months after
show-
carried its burden
psychiatrist,
second
found the state
Shirley
Patton. The
the time
was sane at
ing
petitioner
that
petition
did not see
Tragle,
Dr. William H.
finding to
reviewing this
In
the shoot-
the homicide.
years
er for more than two
after
difficulties,
evidence,
normal marital
comports
they
if it
had had
see
with the
we
sup-
have concluded that it is sufficient
to
him arrested
she had had
but admitted that
port
jury beyond
the verdict of the
a rea-
battery.”
alleging assault
on a warrant
Appel-
sonable doubt. Tennessee Rules of
testimony in our
supplied) This
(emphasis
Procedure,
13(e).
late
Rule
also Jack-
See
way
for the state
opinion opened
Virginia,
son
U.S.
S.Ct.
considered “normal
explore
petitioner
what
(1979).
As
out by the state in its
brief, it is settled that “the use of character
J.,
HARBISON, J.,
BROCK,
con-
C.
reputation
or
clearly
closed to
cur.
during
the state
its case-in-chief and that
prerogative
the defendant has the sole
FONES, JJ., dissent.
HENRY and
opening
S.,
this issue. Michelson v. U.
335
469,
213,
HENRY, Justice,
(1948);
dissenting.
U.S.
69
93
S.Ct.
L.Ed. 168
Gray
526,
191 Tenn.
235
20
I respectfully dissent.
(1950). The defendant’s decision to testify
controversy
presents
This case
a serious
subjects
in his own behalf
him to examina
prosecutor
involving
right
tion on his credibility as a witness State v.
defend-
credibility
attack the
of a criminal
Morgan,
(Tenn.1976),
541
385
but
or
placed
ant who has not
character
place
does not
reputation
issue his
evidence,
cross-examining
reputation
by
in
tending
guilt
traits
to show
or innocence of
acts
conduct.
charged.
the crime
Durham v.
128
(1913).”
S.W.
questions
with those
I am not concerned
to,
relationship
defendant’s
relating to the
However, on review of the testimo
of, his wife.
or conduct and treatment
ny, we find that
there
no
is material basis
as to those matters was
Cross-examination
assumption
petitioner’s reputa
objection
My
is aimed
well within bounds.
peace
prop
tion for
and tranquility was not
attempting to
action of the
at the
erly
contrary,
pointed
in issue. To the
place his character in
force the defendant
state,
“during
the direct exami
legitimate
attempting to
issue and thus
defendant,
nation of the
he was asked sev
cross-examination in forbidden areas
questions
relationship
eral
about his
with
deceased,
responded
his wife. He
law.
guilt
I.
show
innocence of
the crime
charged. Durham
128 Tenn.
The first indication of the
strate-
State’s
(1913).”
S.W.
gy came on the cross-examination of the
defendant’s lead witness when the follow-
relating
questions
The
to defendant’s vio
ing transpired.
broad,”
lent nature were “too
State v. Mor
Q. What- was Mr. Patton’s propensity
gan,
(Tenn.1976),
A. What do I ... don’t un- category proverbial, the same with the derstand that. you stopped beating “have your ques wife” positive tion. A answer would have been Well, man, Q. was he a violent a non- enormously prejudicial to a on trial man, pacifist? violent a answer, negative for a crime of violence. A really you A. I don’t know what mean false, was whether true or calculated to that, I mean. . produce consequences disastrous as the en questions was followed by as to suing develop. narration will whether the witness had defendant seen was: following question The “fight,” anybody,” or “hit or whether he had observed a of violence act di- sir, to Q. your Let me direct attention Patton, rected toward Mrs. the deceased. alley in an event that occurred in an Nashville, where an automobile was The game next overt act in the State’s got out blocking your way, you plan during came the cross-examination of you and slashed four tires. Do recall defendant: that incident? Q. your Did you wife ever tell or did you ever psychia- . . . did he [a point objection was made and At ever render the that the trist] lengthy was excused. After a only problem you with two that. counsel, colloquy among the court and you were mean as hell . . ? operandi modus of the Assistant District No, A. sir. Attorney General became clear. He stated *6 to the court: Next, defendant was cross-examined on On cross-examination I asked him the excessive drinking, association with other question, person?” a violent (held you “are It proper women cross-examination takes a violent to do this. I asked judge), having a shoot-out with him, person?” woman, driving you Red Caruthers “are a violent and over another drunk, Now, child, right while said “no.” I have a to dis- abusing and his own prove while a babe in arms. The Assistant Attor- what he said.
ney questions: General asked these prosecutor, incompetent ques- The by the Q. true, sir, you propensity Is it have a above, obviously seeking quoted tions for violence? put his character to force the defendant to so, A. I don’t believe sir. might attempt in that he to at issue order Tatum, Judge speaking it As tear down. Q. you really Aren’t a violent man? in Hatchett v. 552 the court No, A. sir. (Tenn.Cr.App.1977), observed: 414 S.W.2d time, point directly We out that at no an irrele- The State cannot ask a witness indirectly, placed reputa- had defendant his then, prejudicial question, vant but and peace tion for at issue. As tranquility predi- theory impeachment, under the of Attorney conceded the Assistant Gener- cate a second irrelevant and al, brief, in her defendant’s deci- able “[t]he question upon response the defendant’s to subjects testify sion to in his own behalf question. the first 552 at 415. S.W.2d credibility him to examination on his as a (citation omitted) after place precisely witness but does not This is what the did objection. reputation tending Judge at issue his for traits to the Trial overruled
919 instances, specific than c.that other Next he about an incident alleged asked convictions, may proved by be extrinsic some were line not putting when men a sewer 541 at 388. testimony. property across or near his when defendant off. allegedly shotgun took a and ran them by these test the cross-examination We essential is that The first
standards.
“proba
must be
of
conduct
specific act
bad
II.
or untruthfulness.”
of
truthfulness
tive
Court, speak-
ruling
The definitive
of this
we laid down
requirement
This is the same
Fones,
ing through Mr. Justice
in State
(Tenn.
112
in Collard
526 S.W.2d
(Tenn.1976),1
Morgan, 541
res-
S.W.2d 385
1975),
we
defendant
held
“[the]
from the
jurisprudence
cued Tennessee
as
can be cross-examined
and his witnesses
of
in the
quagmire
conflicts
confusion
turpi
acts which involve moral
specific
questions
might
of
be
properly
area
which
misconduct which tends
any
tude or as
propounded to a criminal defendant as to
veracity
of
or that
show the witnesses’ lack
past
conduct.
at 114.
untrustworthy.”
he is
608(b)
609(a)
adopted
We
Rules
and But, we cautioned:
(b) of the
Federal Rules
Evidence
for admission
evidence
The latter basis
applied
right
context
them in the
open
taken
is not to be
as
the State to cross-examine a criminal de-
every act of miscon-
to admission of
door
prior
fendant
about
convictions. These
on the
of the defendant
...
duct
rules
contemplated witnesses and did
is offered to test
assertion the evidence
defendants;
necessarily encompass criminal
untrustworthiness,
credibility
prove
or to
however,
extension of
so as to
our
them
be
acts
but must
limited
provide coverage to
criminal defendants
bearing
have a direct
misconduct which
keeping
holding
in
with the
time-honored
issue
truthfulness or trustwor-
that,
rule,
general
our courts
as a
when a
thiness,
dishonesty, or
such
an act of
as
criminal defendant “elects
himself
place
statement,
making
or the
a false
upon
witness,
be
stand as a
he can
flagrant
continued and
violation
in
respects
treated
as
wit-
all
(Emphasis supplied).
laws
state.
ness.”
Peck v.
b. the answer of this record as unrelated acts, accusations, all of which were specific unverified cross-examined such conclusive, explained elicit defendant. may and the State not either denied or beyond the bounds any questions in rebuttal. These were testimony contrary propriety. at 389. approximately prior opinion Morgan three months and three weeks 1. The was released the trial of the instant action. Morgan holding procedure, III. tive of the may specific be cross-examined as to rested, After the defendant the State good tending proof acts to offset charac- called two rebuttal witnesses on the any bearing ter. Nor does this have instances and to introduce extrinsic evi- first, proof extrinsic deceased, admissibility dence. The a brother of the tending testified that bragged defendant had once crimes or acts motive, to him “beating up shooting intent, knowledge, about this guilty show times,” fellow two or three they after which identity, absence of mistake or accident and “had thrown him out of a car.” This testi- common plan. scheme or mony in response was to the defendant’s pretermit We of the issue of discussion denial of the testimony “shoot-out” wherein insanity. he denied he had ever anyone. shot For the same reasons that prompting question FONES, J., joins in this dissent. incompetent, was so was this one.
Next this witness testified that defend- ant had also told him that “he had some
connection with dynamiting blowing up
a truck.” Aside from the nebulous nature
of this testimony, it was extrinsic in charac- Morgan.
ter and forbidden by The next rebuttal witness testified that cutting defendant had told him of the tire incident and that defendant had related to couple
him “a shooting of times of at some- Further, one.” he testified that defendant BISHOP, Appellee, Fred L. bragged pushing to him “about some wom- an in Bridge,” her car off the Memorial saying biddy will teach the old to drive “[i]t UNITED STATES CORPORA- STEEL slow and block the traffic.” He also testi- TION, Appellant.
fied vaguely about the sewer incident. All extrinsic, testimony was either or of- Supreme of Tennessee. Court prohibited by Morgan, fered rebuttal as Feb. 1980. supra. permitted None of this jury-out hearing result of a at which the judge
trial probative determined that its outweighed value its effect. This testimony only prejudicially
degrading, also but was calculated to con- fuse predispose the minds of the it guilty, effectually believe defendant thus
stripping presumption him of the of inno- cence.
We hold that this cross-examination and rebuttal constitute and reversible error. is not to be construed as
holding that where a defendant either in witnesses,
person, through affirmatively places issue, may his character in not be Irrespec-
cross-examined acts.